Nearly a decade after the passage of California's groundbreaking Proposition 215, which made medicinal marijuana use legal, the process of establishing a real-world medical marijuana distribution system continues to play out in cities and counties across the state. As activists push the envelope, expanding from caregiver grows to multi-patient co-ops and collectives to dispensaries that openly sell marijuana to anyone with the proper patient's card, localities around the state are reacting with caution, concern, and, in some cases, outright hostility.
Often prodded by activists seeking permits to open dispensaries, the localities are, in many cases, responding with moratoria on permitting clubs to open while they examine safety, health, and crime concerns. In some cases, local leaders appear to be acting in good faith and are enacting regulations to allow the clubs to open. In other cases, moratoria originally set to last 45 days have been renewed, sometimes for such lengthy periods as to suggest they have effectively become a blocking tactic.
The efforts to get a grip on the dispensaries are not limited to suburban reactionary bastions or rural redneck redoubts. Among the cities enacting moratoria recently are West Hollywood and San Francisco, although with 37 existing dispensaries untouched by the moratorium access seems fairly well-assured in the latter.
In a handful of cases, cities have reacted with outright bans on medical marijuana dispensaries. The California-based medical marijuana defense group Americans for Safe Access (ASA), late last month filed a lawsuit against the city of Fresno seeking to overturn a ban voted in by its city council.
The situation is fluid, with new dispensaries opening in some places, while elsewhere new cities and counties are enacting moratoria with each passing day. According to a list maintained by California NORML, about 160 dispensaries are currently operating in the state, while ASA pegged the number of locales enacting moratoria at about 45. The group maintains a list of moratoria and bans on its web site, but, said ASA legal director Kris Hermes, "It's a little bit outdated. We can't keep up," he said.
"New moratoria are being enacted as we speak," said Hermes. "It often happens because someone approaches the city or county about establishing a facility, and that alarms the authorities, it's a signal that they need to look at what to do next. We think it is reasonable to establish guidelines, but we think it should be done quickly to limit the amount of time patients have to go without. Moratoria are just not necessary," he said, "and they are cruel and punitive toward the patients."
It is not just local officials properly concerned with zoning and licensing issues that are driving the move to block clubs from opening. Recalcitrant law enforcement officials have also played a role, emphasizing the alleged criminal and public safety problems associated with the dispensaries. A leader in that movement has been Mark Siemens, police chief of the small Northern California town of Rocklin, which banned dispensaries last July. Siemens told the Los Angeles times in April that he had compiled a list of complaints about the clubs and presented it to his local government before it acted. He added that he had sent copies to some 50 other cities.
But the stuff of Siemen's report is surprisingly thin. While the report warns of an "underground culture" of street criminals and "dopers," among the best he could come up with was a report that a club in Hayward sold hashish, that one in Roseville let people smoke inside the club, and that people in Upper Lake complained that "the people coming to Upper Lake for marijuana look like drug users ('dopers')." Oh, there was also a shoe store in Oakland that complained its business had decreased.
Still, similar concerns voiced by police in Fresno and four smaller towns were sufficient for those localities to pass an outright bans on dispensaries. In Fresno, the ordinance banned any medical marijuana collective providing for more than three patients. While patients and activists might grudgingly tolerate moratoria while local governments ginned up appropriate regulations, outright bans are another thing.
Thus the lawsuit against the city of Fresno filed last month on behalf of a would-be dispensary operator. "We are challenging their policy as being in violation of Senate Bill 420, in particular its language about the ability of patient co-ops and collectives to operate without law enforcement interference," said Hermes. "The permanent ban on dispensing, enacted by Fresno and a handful of other cities in California, is an unlawful barrier to medical marijuana," he said. "Without the means of growing it themselves or finding a caregiver to do it for them, dispensing collectives may be a patient's only legal option for obtaining medical marijuana."
But the ambiguities of SB 420, passed last year in an attempt to regularize medical marijuana production and distribution, will make for an interesting court case. Even under the state's medical marijuana law, localities may still be able to ban dispensaries, said California NORML's Dale Gieringer. "Senate Bill 420 last year caused a lot of confusion. It specifically encourages patient cultivation co-ops and collectives run on a nonprofit basis, but in the opinion of most attorneys I've talked to, California law does not authorize the sale of medical marijuana. Few of the clubs actually operate as true co-ops and collectives," he said. "Some cities have concluded -- with good legal justification, in my view -- that they can ban dispensaries."
Meanwhile, other locales that had enacted moratoria have now enacted regulatory ordinances. "There are more than a dozen towns and cities that have enacted ordinances that allow for and protect dispensing," said Hermes. And while medical marijuana advocates qualified some ordinances as overly restrictive and punitive, others are more akin to simple zoning measures. In Huntington Beach, for instance, the city council lifted its moratorium after setting minimal distances that must separate dispensaries from churches, parks, and schools (500 feet) and other dispensaries (750 feet).
And looming over all this is the impending US Supreme Court decision in the Raich case, due within weeks at the latest. In that closely-watched decision, the court will decide whether the federal government can apply the Controlled Substances Act to the in-state, non-commercial medical marijuana use and cultivation in states where it is legal. While both Hermes and CANORML's Gieringer argued that a negative decision in Raich would have no direct impact on California law, the political reality is that an adverse decision will make California elected officials less eager to enact ordinances in at least indirect conflict with federal law.
"A lot of places are, I think, waiting to hear the Supreme Court decision before they act," said Gieringer, placing the blame for the confusion in California squarely in Washington, DC. "Both the state government and the localities have been afraid to step in and regulate what is clearly illegal under federal law. This has left a huge legal vacuum. The mess you see now is really the result of the federal government's refusal to allow any sort of legal distribution under Proposition 215."
Good Raich decision or not, the fight over the regularization of medical marijuana distribution will continue. "We hope the issue will just naturally work itself out, and cities and counties will realize they don't have to enact moratoria to craft reasonable, sensible policies and regulations," said Hermes. "But this is a highly politicized landscape, and that is why we filed the lawsuit in Fresno. We do not want to see cities and counties opting for permanent bans as a means of resolving the issue of access to medical marijuana. That's not appropriate. In fact, those facilities should be allowed and protected and even proliferated to other states where medical marijuana is legal. We need to set a precedent for safe access and we want California to lead the way."