ASA Activist Newsletter - December 2010

December 01, 2010

Volume 5, Issue 12

Arizona Gets New Medical Cannabis Law

In a contest even closer than California’s AG race, Arizona’s Proposition 203 has passed by a razor-thin margin of just 0.2%, making it the 15th state with tangible protections for medical cannabis patients. This is the third time Arizona voters have passed initiatives aimed at removing criminal penalties for patients, but the previous measures were marred by language that made them unworkable.

Arizona’s new law is detailed in its provisions for which patients are eligible for the program and how they are to obtain the cannabis their doctors recommend.

Up to 124 dispensaries for medical cannabis, which will be required to grow the medicine they distribute, are to be established throughout the state, with at least one in each county. Patients living within 25 miles of a dispensary will be required to use it to obtain the up to 2.5 ounces they are permitted to possess.

Those who live farther away will be allowed to cultivate up to 12 plants in a secure area and share it with other patients or dispensaries for free. Caregivers will be limited to no more than 5 patients and can receive reimbursement only for actual expenses, not labor or other services.

Among the provisions that set Arizona apart from other medical cannabis states is their recognition of out-of-state patient recommendations. Anyone with a doctor’s recommendation will be permitted to possess and use cannabis, though they will not be allowed to purchase it in the state’s dispensaries.

Arizona’s new law also includes explicit workplace and housing protections for patients. Schools, landlords and employers will not be able to discriminate against medical cannabis users. No one will be entitled to drive or report for work while impaired, but a positive drug test will no longer be grounds for denying or terminating employment for patients. Patients’ parental rights will also be protected, and medical treatments such as organ transplants can no longer be denied solely because a person uses cannabis therapeutically.

While Arizona’s latest medical cannabis law seems to have anticipated the legal stumbling blocks that prevented previous measures from taking effect, the state’s lawyers may be unable to help anyone navigate the law. The ethics counsel for the State Bar of Arizona has said that attorneys who provide advice on how to comply with state provisions will be breaking an ethics rule that prohibits them from assisting anyone with criminal conduct. Since all use of cannabis remains illegal under federal law, discussion of the state’s medical law is out of bounds as far as the state bar is concerned.

Cooley Concedes in Calif. AG Race

Medical Cannabis Advocates Claim Victory

In the closest statewide California contest in decades, Democrat Kamala Harris appears to have narrowly defeated Republican Steve Cooley to become the state’s next Attorney General. Thanks in part to an aggressive campaign by cannabis advocates targeting Cooley, Harris won by the thinnest of margins, prevailing by only 0.8%, or 72,883 votes out of more than 9.5 million cast.

Though he led in all the pre-election polling and even claimed victory on Election Day, Cooley, who is the longest-serving District Attorney in Los Angeles history, conceded late last month. He drew the opposition of Americans for Safe Access, the American Cannabis Research Institute and other advocates after he denounced all medical cannabis sales in the state as illegal and attempted to undermine the regulatory process for medical cannabis collectives in Los Angeles.

"A defeat for Steve Cooley is a landmark victory for patients," said ASA Executive Director Steph Sherer. "We expect Kamala Harris to be an ally, but we have also shown that medical cannabis advocates are a powerful political force."

ASA targeted the Attorney General's race as the most important in California for patients’ rights because the position has enormous influence over the interpretation and implementation of state law. Cooley has been a staunch opponent of safe access for years, responsible for dozens of paramilitary-style raids on local cannabis dispensaries and the aggressive prosecution of local patients and their providers. A long-time ally of the California Narcotics Officers Association, he participated in their trainings aimed at the "eradication" of dispensaries.

ASA used a web site, NotCooley.com, posters, and other materials to mobilize grassroots activists and educate the electorate on why Cooley would be bad for medical cannabis, environmental protections and marriage equality. The campaign showing why Cooley is "Not Cool" for California on a variety of issues went viral in the final weeks, with its biggest impact in the Los Angeles area. Cooley was elected DA three times in the county but lost to Harris by more than 14 points there, despite $1 million worth of ads paid for by the Virginia-based Republican State Leadership Committee, a group controlled by Karl Rove and funded by tobacco, insurance and gambling interests.

“This race and its unexpected outcome show there are real political consequences for opposing safe access,” said Sherer. “Elected officials will be held accountable.”

Harris oversaw the writing of one of the first local ordinances for dispensaries in the country, and she has called for statewide regulatory standards for dispensaries, something that could improve access for patients in many areas of the state where local officials have banned dispensaries.

As she takes office, Harris, who is currently the San Francisco District Attorney, makes history several times over. She will be the first female, the first African American and the first Asian American to hold the state’s third-ranking position.

Further information:
Campaign website used to defeat Steve Cooley
NotCooley video on medical cannabis
NotCooley video on the environment
NotCooley video on marriage equality
NotCooley poster

Congress Questions IRS but not DEA Nominee

Answers Sought on Audits, But Leonhart Gets a Pass

ASA has succeeded in convincing members of Congress to question the IRS on tactics targeting medical cannabis dispensaries. And while the nominee to head the DEA escaped her confirmation hearing without having to answer for medical cannabis raids, her opposition to dispensing pain medication threatened to put her nomination on hold.

ASA has alerted members of Congress to new ways federal officials have found for harassing patients and providers, now that the Department of Justice has said federal resources could be better utilized than by prosecuting state-qualified medical cannabis patients and providers. The latest harassment tactic involves selective IRS audits that have targeted the business deductions of several of the California medical cannabis dispensaries that serve the most patients.

“Disallowing deductions for expenses associated with providing medicine amounts to a special tax on cannabis that only hurts patients,” said ASA Government Affairs Director Caren Woodson. “Providers will have to dramatically raise prices or close their doors; either one puts patients back in harm’s way to obtain their medicine.”

ASA has found an ally for patients in one of the nation’s foremost advocates of tax reform, Congressman Pete Stark (D-CA), who is now calling on the IRS to allow state-legal cannabis dispensaries to take trade or business deductions. Rep. Stark and a handful of Congressional colleagues who also serve on oversight committees such as Ways & Means, Joint Taxation, Banking, and Judiciary have cosigned a letter requesting that the IRS issue a revenue ruling – or similar pronouncement upon which taxpayers may rely – concerning deductions for medical cannabis dispensaries.

“These IRS audits are indirect attacks on state medical cannabis programs,” said Woodson. “Congress has to provide leadership because career bureaucrats can’t bridge the divide between state and federal laws.”

The federal Drug Enforcement Administration is unlikely to help resolve the impasse, now that a holdover from the Bush Administration, Michelle Leonhart, has sailed through confirmation hearings to head the agency without facing questions about why the DEA has largely ignored the Obama Administration’s policy on medical cannabis.

But Sen. Herb Kohl of Wisconsin reportedly threatened to block a vote on her nomination until the DEA loosens restrictions on how pain medications are dispensed in nursing homes. All indications are her nomination will come to a vote this session, but if it does not, President Obama would have to re-nominate her in the next Congress.

New Regulations Edge D.C. toward Safe Access

Local officials in Washington D.C. are making progress on regulations for implementing the medical cannabis initiative passed more than a decade ago, but just now allowed to go into effect. ASA Executive Director Steph Sherer, who lives in D.C., and other ASA staff and advocates have been working with officials to shape the new rules to reflect patient needs, sometimes with more success than others.

A recent victory was the decision to abandon a plan for putting the Alcoholic Beverage Regulation Administration (ABRA) in charge of the program. ASA had asked for a production and distribution licensing board with expertise on the issue, and the city listened, changing to a four-member board appointed by the Mayor.

"We are eager to help the mayor establish a board made up of carefully selected experts and patients," said Caren Woodson, ASA’s Director of Government Affairs. "We will also seek approval and implementation of sound regulations as soon as humanly possible."

ASA supported other changes made to the recently published regulations, including enhanced privacy protections for patients and the adoption of a merit-based licensing system for the production and distribution of medical cannabis, rather than the first-come, first-served approach in the initial proposal. A points system will now be used to assess how applicants will run their operations, favoring such factors as environmental sustainability and local ownership.

ASA and other patient advocates remain concerned about other provisions in the proposed regulations, such as the prohibition on personal cultivation, a right explicitly defined in the original voter-approved initiative.

"We've come a long way and have made significant progress over the past few months," continued Woodson. "Although the regulations aren't perfect, we're ready to put this law into effect."

The first set of regulations – now abandoned -- established a surprisingly short list of qualified medical conditions, limited to HIV/AIDS, cancer, glaucoma, and multiple sclerosis. The initial regulations also outlined a patient identification card program, a possession limit of two ounces per patient in a 30-day period, limited the number of production and distribution facilities to ten and five respectively, and established exorbitant licensing fees.

The District Council now has 30 business days to review the revised regulations before sending them to the Mayor.

Further information:
Second proposed rulemaking to implement the law
ASA's recommendations on proposed rules and regulations
Text of I-59, passed in 1998
 

LA: A Win in the City, a Loss in the County

Medical cannabis advocates convinced the city of Los Angeles to allow more dispensaries even as supervisors for LA county voted to close all of them in unincorporated areas.

The LA City Council this month relaxed restrictions in the city’s medical cannabis ordinance that would have eliminated all but a few dozen of the roughly 500 dispensing collectives now operating. Rules about where dispensing collectives can locate barred them from operating near residential areas, schools, parks and other “sensitive uses,” effectively eliminating almost all neighborhoods. Additional rules about who could be listed as operating the dispensaries threatened to close all but 40 of the collectives currently operating in this city of 5 million.

Councilman Paul Koretz told the media after the vote that the original rules “unintentionally and erroneously disqualified some dispensaries.” He said the changes the council made will “reinstate some that I believe would have been removed by mistake."

In addition to easing the restrictions on dispensary management, the council also gave operators an additional six months to come into compliance with the new ordinance. Final approval of the new rules awaits a vote by a quorum of 12 council members; only 11 were present when the ordinance changes were approved.

"This is a common sense improvement," said ASA’s California director Don Duncan, who has worked closely with the council. "It will help legal collectives stay eligible to register and to abide by the rules, which I think is the common goal shared by the council and the community."

Meanwhile, Los Angeles County Supervisors reversed course, voting 4-1 to ban medical cannabis collectives in unincorporated areas of the county. The vote overturned a 2006 ordinance regulating dispensaries. Despite a history of support for safe access among a majority of the board, press reports about a spate of violence around dispensaries in the city, as well as public outcry against un-permitted dispensaries opening illegally in the county, convinced county supervisors to institute the ban.

“This ban should be a wakeup call for patients and advocates all over California,” said ASA’s Duncan. “Bad press and negative public perception can roll back hard-won progress on safe access, despite the facts.”

ASA’s research on the experience of California communities over the last fourteen years reveals that sensible regulations for medical cannabis distribution reduce crime and complaints. Crime statistics show that the presence of medical cannabis collectives can make neighborhoods safer. Los Angeles Police Chief Charlie Beck confirmed that in January, telling reporters that banks attract more crime than cannabis dispensaries do.


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