Medical Marijuana Crackdown

Early last Wednesday, on an otherwise beautiful late winter morning in Santa Barbara, Charles Jeffrey Restivo and his wife didn’t need an alarm clock to wake up — they were stirred from slumber by a Santa Barbara Police Department SWAT team banging on their front door. With guns drawn and armed with a search warrant, the cops pulled the completely shocked Restivo — a Santa Barbara native, UCSB graduate, practicing Certified Public Accountant, and owner of one of only three legally permitted medical marijuana dispensaries within city limits — from his home, eventually placing him under arrest on charges of felony possession and cultivation of cannabis for sale.

By sundown, similar scenes played out at several dispensaries and homes throughout Santa Barbara, Goleta, Summerland, and Ventura. All told, the multi-agency operation raided four cannabis clubs, arrested 12 individuals, and seized more than 12,000 plants, 100-plus pounds of herb, and tens of thousands of dollars in cash and assets. Without a doubt, it was the largest-scale medical marijuana-flavored sweep of its kind to go down in these parts since the inception of the Compassionate Use Act some 13 years ago. “It is not our goal to shut these places down,” said S.B. police spokesperson Paul McCaffrey, “but it is our job to uphold the law.”

“So far, none of the allegations that we have heard publicly suggest that Pacific Coast Collective (PCC) was operating outside the color and letter of both state and city law.”

But, as is almost always the case in the legally hazy and maddeningly confused regulatory world of medical marijuana, the busts — at least for the civilians involved — are far from clear-cut criminal cases. As attorney Allison Margolian, who is representing the 31-year-old Restivo, put it this week, “So far, none of the allegations that we have heard publicly suggest that Pacific Coast Collective (PCC) was operating outside the color and letter of both state and city law.” In fact, according to Margolian, PCC was not only the first dispensary to receive the thumbs-up last year from the City of Santa Barbara and the SBPD under the terms of the new — albeit still in flux — local medical marijuana ordinances, but it was also strictly adhering to the California Attorney General’s guidelines of what constitutes a legal collective.

But the road to the raids did begin somewhere and, based on police reports as well as statements from McCaffrey, that road is East Gutierrez Street. Just before 11 p.m. on February 5, authorities noticed a Honda Element, driven by Glen Mowrer III, pull over and make contact with a suspected prostitute. Eventually stopping the car for not having a front license plate, officers noticed the distinct smell of cannabis coming from the car and, after a drug-sniffing dog arrived on the scene to confirm their suspicions, discovered more than 20 pounds of cannabis in Mowrer’s trunk. A former cannabis club operator himself — actively on probation for a marijuana-related offense in Northern California and son of California Attorney General candidate Glen Mowrer II — Mowrer was eventually booked in County Jail for the alleged possession of marijuana for sale, despite having a doctor’s note legitimizing (at least to a certain degree) his marijuana use and possession.

Searches of his home and another residence he had access to turned up an additional 100 pounds of pot, 23 growing plants, and, most importantly, hash oil (a concentrated liquid form of THC) and the various paraphernalia used to make it. According to statements attributed to Mowrer in the police report, he would make the oil from dried bud and then sell it, along with edibles baked with the oil, to four specific dispensaries to be sold to patients as a smokeless alternative to their medicine. Interestingly enough, those four dispensaries — the aforementioned Pacific Coast Collective, The Healing Center on San Andres Street, the Miramar Collective in Summerland, and Goleta’s Care Center — were the exact four clubs raided by authorities last week.

Now this is where things get tricky. Under the Compassionate Use Act, folks with permission from a doctor are allowed to possess and/or grow cannabis. This notion was furthered in 2004 when State Assembly Bill 420 created the legal space for patients to form medical collectives or co-operatives, which in turn led to the formation of the 1,000-plus dispensaries or cannabis clubs that populate the state today. Roughly a dozen operate within Santa Barbara City limits. The idea behind these clubs is that an organized group of patients basically cobble together their collective grow and possession rights to create a nonprofit business entity that provides members with a safe and reliable storefront to go and obtain their medicine. Over the years, this practice has been evolved and more explicitly defined by various state Supreme Court rulings on the subject as well as medical marijuana-specific county and city ordinances, such as the ongoing process here in Santa Barbara that seeks, among other things, to outline where exactly clubs can operate, who can run them, and what they can and cannot do.

Though very much a moving target, the general model being used today by dispensaries — thanks in large part by 2008’s People v. Mentch, which all but killed the notion of cannabis-providing clubs as legal “caregivers” — is that of a collective. To that end, the California Attorney General provided operating, though nonbinding, guidelines in August 2008 that said, in short, a collective should operate as a “closed loop” entity. That is to say that all cannabis is produced, provided by, sold to, and consumed by legally recognized, officially documented collective or co-op members.

According to McCaffrey and Santa Barbara County deputy district attorney prosecutor Brian Cota, who is working closely with the various cases resulting from the raids, the bulk of the charges facing the various club owners and shop employees stem from the breakdown of this “closed loop,” presumably in their purchasing and/or selling of cannabis or cannabis products outside the collectives’ membership. Though he wouldn’t say it was Mowrer’s homemade oil or edibles specifically that prompted the criminal charges for the club operators, McCaffrey said last week that there was “a connection between the two,” adding, “These dispensaries were operating as illegal marijuana dealers, despite the argument that they sometimes operated as legally required and intended.” The arrested operators, in addition to Restivo, were Juan Carlos Solis of Healing Center, Diane Norman of the Miramar Collective, and David Macfarlane of Care Center. On a related note, of the 12 arrests made last week, five of the individuals (two in Summerland and three in Goleta) were actually out-of-towners who had the bad luck of stopping by the raided dispensaries with alleged designs on delivering cannabis for sale while authorities were still there.

It remains to be seen if Mowrer or any of the other arrested cannabis brokers were actual members of the busted collectives. All parties involved have refused to comment on the subject. However, if this proves to be true, then — at least according to Kris Hermes, a spokesperson for the California-based medical marijuana policy watchdog Americans for Safe Access (ASA) — the authorities may have been in the wrong to raid and arrest. “As long as the producer is a member of the collective or the co-op, then there should not be a legal issue,” opined Hermes this week before adding, “Unfortunately, this is not an isolated situation. This type of bust is happening all across the state right now, but unless police can provide hard evidence, then the charges don’t stick. … They are really just misrepresenting the law.” As the saying goes, it seems only time — and most likely lots of legal bickering — will tell.