What’s up with medical marijuana dispensaries springing up like, ahem, mushrooms?
They call themselves healthcare collectives. Most don’t have business marquees. Healthy, fit people, mostly under age 30, and even some gang-bangers, enter their doors, leave moments later, heading off to smoke their score, or resell it.
Welcome to the medical marijuana dispensary industry in Santa Barbara. With 10 already open, 3 more permitted to open, and even more in the permit pipeline, they are starting to cluster as densely as one per block in some areas of Santa Barbara.
How does it work? A doctor will see you within minutes, even come to your home, and issue a recommendation for anxiety or writer’s cramp. Then you’re off to the dispensary to pick up your pot.
This is very far away from the intent of the Compassionate Use Act, passed in 1996, allowing people who were seriously ill or dying the ability to access marijuana, if it eased their suffering, and their doctor thought it appropriate.
How did we get from pain relief for the seriously ill to dispensaries? Pro-marijuana forces such as NORML, Americans for Safe Access, and Reason.org saw medical marijuana as a door-opener to legalization. The roadblock was the Feds, who still consider marijuana illegal. When Obama took office, Eric Holder, head of the DEA, said that they would not target medical marijuana users in states that had adopted laws like ours in California. Ganjapreneur dispensary operators interpreted this as a window in which they could now sell to primarily recreational users under the semi-legal protection of medical marijuana.
Here’s a how-to checklist for a dispensary to subvert the state laws. It could have been written by a pro-marijuana organization (who have plenty of lawyers on their payrolls):
State law: Seriously ill patients can grow up to 6 plants. If they are too ill, their primary caregiver can grow it for them.
Get all patrons to sign forms designating the dispensary as their ‘primary caregiver’.
State law: Collectives or cooperatives are the only forms of organization allowed where caregivers can cultivate marijuana together for their seriously ill patients.
Cooperatives distribute all profits among members, so that’s no good. Form a collective. No one knows what that means, anyway. The Attorney General had to look it up in Webster’s. Get people to become members of your collective by having them sign a form.
State law: Patients can reimburse the primary caregiver for expenses incurred in cultivating medical marijuana.
That means you can sell it! Ask for a ‘suggested donation’ to recover costs that matches the street price.
State law: No profit is allowed.
Organize as a non-profit. That just means we don’t issue stock and pay dividends to shareholders. It doesn’t mean we can’t make tons of money at this. We’ll pay ourselves very high salaries so it looks like it’s not that profitable.
State law: Patients must have a doctor’s recommendation that marijuana is appropriate to relieve their pain.
Some doctors are very happy to write recommendations for almost any condition, seeing up to 20 patients or more per hour, at $200 each. Get a list of these doctors, and hand them out to prospects. The recommendation is good for up to a year. We can always scream ‘patient confidentiality’ if law enforcement asks to see our records. People don’t know that HIPAA confidentiality only applies to drugs distributed legally under federal laws.
City councils aren’t exactly comfortable with having dispensaries.
No problem! Just tell them they’re Republican Nazi meanies if they don’t allow ‘compassion’ for ‘patients’, which is code for let us sell our ‘medicine’. They should zone it into areas of the city where most of the residents don’t bother voting. We’ll threaten to sue if they ban dispensaries. That will force them.
This is very tongue-in-cheek, but you get the picture.
Some cities haven’t fallen for it. Fresno’s ordinance doesn’t allow any business that isn’t compliant with state and federal laws. Since marijuana is still illegal under federal law, no dispensary can open. They do anyway, and law enforcement shuts them down.
State courts are starting to issue decisions that gut the dispensary model. The city of Claremont passed a ban, and closed down a dispensary. The operator sued, and lost. He appealed, and lost again. The Appeals Court ruled that nothing in the state laws compels cities to allow dispensaries.
In People v Mentch 2008, the California Supreme Court said that “primary caregiver” has two components: they must be designated by the patient, and must be a person “who has consistently assumed responsibility for the housing, health and safety” of the patient. “A defendant asserting primary caregiver status must prove, at a minimum, that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time they assumed responsibility for assisting with medical marijuana. The Compassionate Use Act “does not provide protection from prosecution where the provision of marijuana is itself the substance of the relationship.”
Thus dispensaries can be prosecuted even if you sign a piece of paper saying they’re your primary caregiver. It’s reasonable to conclude that patrons of the dispensary are similarly at risk of prosecution if the relationship between a patron and the dispensary is only for procurement of marijuana.
The District Attorney of Los Angeles and the City Attorney of Los Angeles also recently came to the conclusion that retail storefront dispensaries, are, in fact, illegal. Los Angeles law enforcement is moving aggressively to shut down all their dispensaries.
Some dispensary operators here are nervous about the backlash that is starting. A dispensary littered the sidewalk with pro-marijuana flyers and passed them out to elementary and junior high kids protesting along “The Marijuana Mile’ as they passed the storefront. Why didn’t they hand out something showing how they’re serving compassion? Sick patients step aside, please, in favor of recruiting future users.
Other operators are sweating about too much competition - a serious red flag to anyone still believing dispensaries are in the compassion business. Competition is no issue in a true collective or cooperative organization. Businesses worry about competition when they are nervous about erosion of profits…the biggest clue that dispensaries are in it just for the money.
Regulation of dispensaries via zoning laws, as is done in Santa Barbara, is hopelessly inadequate. City planning staff just doesn’t have the person-power or breadth of expertise needed to handle the bigger issues around dispensaries. These regulations would be provided by federal agencies, but since marijuana is illegal under US law, they can’t help. For example, can dispensaries sell hashish from Afghanistan? US Customs would handle that. Is it legal to truck it here from out of state? Congress would regulate that. Is it legal for doctors to recommend marijuana for any illness? The American Medical Association probably has some strict views on that, but refuses to touch the subject since it’s illegal under federal law.
It’s not possible to achieve end-to-end regulation over growing, distribution, doctor recommendations, and appropriate use through city zoning provisions. Dale Francisco has been making this case lately.
Dispensary owners see a creative solution to that problem – self-regulation! They’ll form an association, and regulate themselves. No oversight by a city or law enforcement needed.
Someone should check on the recent national debacle within the finance industry in that regard. Leaving the foxes in charge of the henhouse is never a good idea.
When we passed Proposition 215 in 1996, no one foresaw pot shops overrunning our neighborhoods. No one thought that kids would bring it to school, and tell shocked school administrators that it’s legal. No one thought that young kids would swallow the propaganda that marijuana is medicine, and good for them. But this is indeed the situation. Ganjapreneurs have now constellated a serious law enforcement and public opinion backlash, which will likely result in crackdowns, closures, and bans across the state. The state laws are indeed vaguely written, but to flout them was foolish, and very uncompassionate to the seriously ill. The unfolding backlash will likely result in dispensaries being made illegal under state law, set the pro-legalization movement back years, and make access for the truly ill much more difficult.
The ordinance committee, consisting of Das Williams, Dale Francisco, and Grant House, are continuing to wade through tightening of the ordinance through zoning, even though this won’t solve the larger regulatory issues. Francisco is questioning the legality of the retail dispensary model, and wants to take it back to Council.
In the meantime, the Planning Department is approving more dispensaries to open. Soon we’ll have double the number of dispensaries that we do Starbucks.
That’s saying something.
October 17, 2009
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Medical Marijuana Op-Ed