Photos by John Mireles
(Published in the March 2010 issue)
Doubt about the future of medical marijuana dispensaries in San Diego County continues as local government officials juggle input from fact-finding committees, health coalitions, public opinion, state law and federal reform.
We’re not alone-nationwide, the issue of how and where one can legally obtain medical marijuana remains a conflict for the millions of Americans who have used pot under the recommendation of a physician.
In 1996, California became the first state in the nation to legalize marijuana sales to people with doctor’s prescriptions by passing the Compassionate Use Act, otherwise known as Proposition 215. Voters in 13 more states would eventually follow suit and pass their own referendums to legalize the sale of medical marijuana. Today, pot is said to be the nation’s number one cash crop, surpassing corn and other commodities.
But at the federal level, marijuana is still illegal. And when it comes to enforcement, federal laws take precedence over state laws, as witnessed during the Bush administration when government agents regularly cracked down on medical marijuana distributors in California, even if they were operating in accordance with state law.
Why? Because the fed’s position on pot hasn’t changed in decades. “Marijuana,” as summarized on the US Drug Enforcement Administration’s web site, “is a dangerous, addictive drug that poses significant health threats to users.”
Even though the American Medical Association reversed its long-standing anti-pot policy in November of 2009, marijuana is still on the list of Schedule 1 Controlled Substances (along with LSD, heroin and PCP), a classification that dates back to the Nixon White House.
“It creates an uncertainty for everyone who is involved in the medical marijuana arena,” says David Speckman. A San Diego civil litigation attorney, Speckman has helped half a dozen area medical marijuana collectives set up legal storefront dispensaries and co-ops, including The Holistic Café in Hillcrest.
But last year, the Obama administration, in response to growing public pressure to legalize dispensaries (can’t find medical marijuana in your ‘hood? There’s an app for that now), called off the pot police.
“In the current administration,” says Speckman, “as long as the person [in possession of medical marijuana] is in compliance with the state law, the federal government has taken the position that it will not get involved.”
In response to that news, there was a meteoric surge in medical marijuana storefronts opening for business in Southern California. In San Diego, neighbors complained.
“For some,” says Speckman, "that sudden growth caused a bit of an alarm.”
They raided marijuana dispensaries and private homes throughout the county, arresting 23 people and shutting down 14 of the storefronts, calling them fronts for illegal drug operations. For the record, in spite of Prop 215, medical marijuana is actually not legal, here in the state of California or anywhere else.
“What’s important to note,” says Speckman, “is that the current state law does not legalize marijuana. What it does is provide an affirmative defense to prosecution. It’s an important nuance. But the law does not say it is legal to possess marijuana.”
Essentially, then, a doctor’s note, doctor’s verbal recommendation or a valid medical marijuana ID card serves as a get-out-of-jail pass. He adds, “If medical marijuana was legal, and I showed an officer my recommendation, the officer would have to let me go. That’s an important distinction.”
When voters passed Prop 215, rather than enact clear-cut statewide guidelines, Sacramento decided to allow each county to create their own. One result of that legislative ambiguity is that California is now a patchwork quilt of rules and regulations. Medical marijuana dispensaries in Oakland, for example, play by different rules than the ones in, say, Los Angeles.
In November 2009, the San Diego City Council commissioned a Medical Marijuana Task Force to make recommendations in advance of a vote on an ordinance that would regulate such dispensaries within county limits. But in February, the Uptown Community Planning Committee Chair, Leo Wilson, complained that “the City Council is lost in the way they’re directing this.”
“Once the committee had met and had come back with their findings, at least it was my expectation that we as the Council would vote and take some action,” Frye says. “Instead, the action was to refer it back to a Council Committee for more discussion. It didn’t make a lot of sense. I was ready to vote on it and move on.”
Alex Kreit chairs the Medical Marijuana Task Force. “We got got back to them on January 5 at the City Council meeting,” he says. “The Council voted to refer our recommendations to the Land Use and Housing Subcommittee of the City Council. They, in turn, sent the recommendations around to the Community Planning Committee (CPC) for their input and to other community groups for them to weigh in.”
On two occasions, the CPC voted to ban medical marijuana storefronts.
“The second time,” says Stephen Whitburn, who was present for both votes, “the CPC passed a threefold motion: to oppose the Task Force recommendations, to support a ban on storefront dispensaries and to ask the Land Use and Housing subcommittee to wait 60 days to take up the recommendation in order to give the neighborhood planning groups more time to consider the issue.”
Stephen Whitburn is the Vice Chair of the North Park Planning Committee. At a recent neighborhood meeting in Hillcrest, he complained that Proposition 215 and subsequent laws (Health and Safety Code Section 11362.5 and SB 420) weren’t well written.
“The law spells out that you can have medical marijuana,” he says, “but it does not say how you can get it.”
The Council’s Land Use and Housing subcommittee is scheduled to take up the issue again on March 24.
“At that point,” says Alex Kreit, “they’ll decide whether to move forward with a possible ordinance based on the recommendations we’ve made.” If that is the case, he says, the matter would then go back to the City Council.
“I think that part of it is a philosophical difference for people who are opposed to anybody using marijuana,” she says, “and I understand that. But the fact of the matter is, whatever their personal feelings are about it, the reality is that the voters said that they supported the use of medicinal marijuana. It’s my job as a legislator to make sure that whoever is trying to comply with that law has guidelines in place that are easy and understandable. It’s not that difficult. Unfortunately, politics comes into things as it often does. It makes it hard to do sensible things to make people’s lives easier.”
Stephen Whitburn says he hopes the committee will vote in favor of regulation, not elimination, of storefront dispensaries. “A person dying of brain cancer,” he says, “shouldn’t have to grow his own marijuana.”
Despite the climate of uncertainty, dispensary operators are keeping their doors open. “The City is not issuing business licenses for medical marijuana dispensaries per se,” says David Speckman. “They did issue some a year ago, but those have been revoked, to my understanding.”
In the meantime, businessmen Jason Prieto and Patrick Cardwell hope to open the La Jolla Medicinal Cooperative, on Pearl Street, later this spring. In the absence of a concrete position from the city, Prieto weighs the risks.
“The D.A. could come through the door and take everything away from us, including our freedom,” he says.
He remains optimistic, however, that the push for medical marijuana reform will continue in a positive direction. “We are waiting for the City Council to issue guidelines,” Prieto says, “to make sure we are in compliance with the guidelines, and to submit the necessary paperwork for licenses and permits.”
And waiting for that, it seems, might be like watching the grass grow.
Senate Bill 420
All irony aside, California State Senate Bill 420 was passed in September 2003 to address, among other things, the issue of how exactly a person with a physician’s recommendation can legally obtain medical marijuana. As such, the bill defines the legal structure of a medical marijuana collective, protects physicians who recommend use of medical marijuana and requires the State Department of Health Services to
stablish a program of issuing medical marijuana ID cards.
“Senate Bill 420 says that people who have doctor’s recommendations for medical marijuana can come together collectively or cooperatively to exchange their medicine,” says San Diego attorney David Speckman. “That makes practical sense. You might live in a condo in Little Italy. I might live on five acres in Jamul. I can grow medical marijuana where I live, but you cannot. But we both have physician recommendations to use medical marijuana. Under SB 420, you and I can come together, and we can share what I grow; you would reimburse me for my growing costs and I would give you the medicine that you need. A collective,” he says, “operates as a closed-circuit network.”
Neither Proposition 215 nor Senate Bill 420 spells out how medical marijuana should be transported over long distances from rural growers to urban patients, so couriers are the least-protected link in the distribution chain.
A medical marijuana user may be a member of one collective, or of several collectives. California collectives are structured as nonprofit, mutual-benefit corporations, meaning that any money left over after payment of expenses has to be given back to members as some form of benefit. An exception to the not-for-profit business footprint: dispensaries statewide must pay sales tax.
In the new world order of medical marijuana, one size does not fit all. “What symptoms do you want to address?” asks Bobby, The Holistic Cafe budtender (the dispensary’s terminology?). Pot can be used to deal with a broad variety of maladies, ranging from mild to severe. The job of any budtender, Bobby says, is to match a particular strain of marijuana with a customer’s illness or complaint.
“A person with anxiety would want some indica to calm them down, to mellow them out. A person with fatigue and not much energy, such as a cancer patient, would obviously want a sativa. But both strains have pain-numbing or pain-alleviating effects.” He explains that cannabis sativa is an upper. Most modern pot strains, he says, combine the two.
Bobby is an occupational therapist. And, he is an expert on the growing multitude of ways and means by which medical marijuana can be smoked, eaten, swallowed or rubbed into one’s skin.
“There are edibles like chocolate bars, cakes and muffins, medicated chocolate mints and medicated macadamia nut bars. There are also tinctures-solutions intended to be added to drinks.” There are even topical salves, he says, made to be applied to certain areas of te skin.
“We’ve also had medicated ice teas, sodas, and coffees.”
And then there are clear glass jars filled with marijuana buds in varieties with psychedelic names right out of the 1960s, like Train Wreck, Blue Dream, Granddaddy Purple, Sour Diesel and Bubba Kush.
“What’s good for one person may not be good for the next,” Bobby says. “Some people like to smoke. SOme people can’t smoke. There are other methods of ingesting cannaboids than smoking.”