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              19 Jul 2006 California

         by Kelly Davis, San Diego City Beat, 


                 Return To OnlinePot’s Legal Section Main Page

       District Attorney Says Raids Were A Warning

In the past two years, the number of medical-marijuana dispensaries in San Diego County has grown from zero to roughly two-dozen, most of them located within San Diego city limits, with another dozen medical-cannabis delivery services focused solely on bringing pot to a person’s home. 


 ASA Produces Hard-hitting TV Commercial for San Diego Campaign

Only the L.A.  area has experienced a similar increase in medical-cannabis-related businesses in such a short period of time.  The issue’s reached a tipping point in San Diego two weeks ago, federal and local law-enforcement agents raided 13 dispensaries and arrested 15 owners and employees.  Five people have been charged with the federal crimes of conspiracy to distribute and conspiracy to manufacture marijuana; the remaining were arraigned in state court last week on drug sales and possession charges. 

Damon Mosler, head of the District Attorney’s narcotics unit, said the raids were a warning to dispensaries that remain open.  "The rest are on notice and certainly can expect to see law enforcement if they remain open," he said. 

Indeed, California NORML ( National Organization to Reform Marijuana Laws ), which keeps lists of cannabis clubs, dispensaries and co-ops, updated San Diego County’s listings this week, noting that five dispensaries were "closed till further notice by DEA raid."

For the past 18 months, dispensaries operated in San Diego with relatively little law-enforcement oversight and no political oversight.  Mosler said he watched more dispensaries open but didn’t hear anything from the San Diego Police Department. 

"County prosecutors were wondering when they were going to start seeing reports from police to prosecute these cases," he said. 

Juliana Humphrey, an attorney and a member of the city’s medical-marijuana task force, said she gets calls from patients and dispensary owners, asking for her advice.  Dispensaries, she tells them, "are not legal in any way, shape or form."

Prop.  215, the decade-old voter-approved initiative that made medical marijuana use legal with a doctor’s recommendation, said nothing about how a person should obtain marijuana.  The law encourages "state and federal governments" to come up with a plan that would give patients safe and affordable access to marijuana.  Marijuana remains illegal under federal law, classified as a "Schedule I" drug, meaning it has no medicinal value. 

State Senate Bill 420, signed into law two years ago, sought to tie up some of Prop.  215’s loose ends?clarifying how much marijuana, both dried and in plant form, a person could possess and requiring counties to create an identification-card program to recognize legitimate patients? But like its parent law, SB 420 said nothing about how someone should obtain pot or a plant.  A person can appoint a "primary caregiver" to grow marijuana for them and then, according to the law, pay that person "for actual expenses, including reasonable compensation." Some have interpreted this as an OK for dispensaries.  On its website, though, California NORML warns that "dispensaries? selling marijuana over the counter accordingly do so at the tolerance of local authorities."

"Prop.  215 was not a ‘full employment for marijuana growers’ act," Humphrey said. 

"One person providing for 1,000 people is not what the law envisioned" in defining a primary caregiver.  "They have to have some sort of relationship with their patients."

Humphrey said dispensaries have gotten by so far because law enforcement chose not to go after them.  "Some get lulled into a sense of false security, but as others pop up, people start complaining and cops feel they have to do something," she said. 

Though San Diego was, in 2003, one of the first cities in California to pass guidelines as to how much marijuana a person could possess for legitimate medical use ( the guidelines set rules for growing, too ), the city sits within a county governed by a Board of Supervisors that has refused to implement the ID-card program and last year launched an attack on Prop.  215.  The supervisors, a steadfastly conservative bunch, are hoping to kill the law by arguing that the federal government’s ban on marijuana trumps state law. 

As for dispensaries, however, while six counties and 24 cities have taken steps to regulate them, San Diego’s done nothing. 

Even Kern County, where George Bush beat John Kerry by a 2-to-1 margin, enacted dispensary guidelines earlier this month.  San Francisco last year put a moratorium on new dispensaries and drew up rules that required dispensaries to apply for business licenses and permits, pay related fees and not be located near a school.  The Kern County guidelines give the sheriff the right to review sales records. 

Bruce Mirken, spokesperson for the Marijuana Policy Project, said cities and counties that fail to regulate dispensaries "are inviting trouble."

"Communities that have chosen to ignore them or try to not have them at all are doing everybody a disservice because you either end up with the Wild West or with all the activity forced underground where nobody can properly regulate it.  Neither is good for patients or the community," Mirken said. 

When asked about dispensaries’ legality, Mirken pointed out that they’ve never been challenged in state court. 

"Arguably, there’s enough vagueness in the law that one could make a case one way or another about the legality of dispensaries," he said, "but there certainly has been no definitive decision that state law bans them."

Claudia Little, 60, a nurse and medical-marijuana patient, had hoped that the city’s medical marijuana task force would take the lead on the dispensary issue and call for guidelines. 

"Very few people have the green thumb or the resources to grow their own cannabis," she said.  "Dispensaries are wonderful for patients where they can go in, show their paperwork, get their medicine and go home without having to ask a teenager to score it on the street for them."

Over the past year, Little and other medical-marijuana advocates have tried to meet with local officials with little luck. 

"The dispensary owners, a lot of them, really have been begging for regulations," she said.  One of those owners, Wayne Hudson, hired lobbyist Nikki Symington to meet with public officials and ask for regulations. 

When it comes to medical-marijuana dispensaries, Symington said, "there will always be a gray area? because we’re caught between a federal and state issue.  But the gray area? really gets cleaned up when there are clear regulations."

Little and Symington had an appointment to meet with City Attorney Mike Aguirre.  A day before the raids, they got a call to say the meeting was cancelled.  "We had set up appointments; I had been calling the mayor’s office.  I should have guessed," Symington said about the raids. 

"Everybody sort of said to me, ‘Well, we’re having internal discussions right now.’"

Mosler said the raids focused on dispensary operators and doctors who the authorities believe were giving out questionable recommendations. 

"We didn’t want any patients brought into this," he said.  "We’re not touching patients; we’re not going to debate their ailment."

But, Mirken said, using raids to shut down dispensaries is an attack on patients. 

"Patients need a safe, reliable source of medicine, something that’s been acknowledged by local public-health and law-enforcement officials in communities around the state."

Neither Aguirre nor Police Chief William Lansdowne responded to CityBeat’s request for an interview.  Mayor Jerry Sanders, through a spokesperson, said that while he supports the use of medical marijuana, he doesn’t support for-profit dispensaries: "Under the Compassionate Use Act, the state and federal governments are called on to develop a plan for the safe and affordable distribution of marijuana to all patients needing the drug," he said.  "This includes enhancing the access of patients and caregivers to medicinal marijuana through collective, cooperative cultivation projects.  This does not include for-profit dispensaries."

Humphrey said there are alternatives to dispensaries.  "The folks who are sincere [about access to medical marijuana] should brainstorm," she said. 

Longtime medical-marijuana activist Steve McWilliams, who died last year, opposed dispensaries, instead advocating for a secure, municipal "grow area" where qualified patients would pay a small fee to grow their own marijuana or have someone grow it for them.  The place would be guarded, and guards’ salaries would be covered by user fees. 

Lynette Shaw, who runs the only dispensary in the Marin County town of Fairfax?one that’s strictly nonprofit?said her set-up, in place for nine years, is something she’d like to see other cities and counties try; she’s offered to advise San Diego. 

"The chief of police wrote this use permit with 84 conditions" that Shaw has to follow, she said.  Among them: her books are audited yearly by the Fairfax City Council to make sure she remains a nonprofit; she pays state, federal and local income taxes; she has a contract with the police to keep loiterers away from the dispensary; and she abides by community concerns when it comes to operating hours. 

"Because we’re across from a Little League ball field, we close during Little League games," she said.  Her patients’ purchases are 100-percent tax deductible as a medical expense, and she’s also the only dispensary she knows of with a money-back guarantee.  "If the medicine doesn’t work, you bring it back," she said. 

In the end, Shaw believes her dispensary has saved both the city of Fairfax and Marin County money in law enforcement and legal costs.  "We have calm in the community.  The officers are not wasting their time? they can get on to taking care of the real bad guys."