Legality of pot shops still hazy
June 02, 2005
David Bunker, Sierra Sun, TruckeeDespite the more than 110 medical marijuana dispensaries that have popped up in Northern California since the state’s approval of the 1996 Compassionate Use Act, the legitimacy of pot shops in the state remains very much in doubt.
The future of medical marijuana distribution hinges on a United States Supreme Court decision that is expected as soon as this summer, experts say, and until then marijuana dispensaries operate in a nebulous region between a vague authorization by state statutes and an federal law that refutes marijuana as a plant with medicinal purposes.
And when Truckee enacted a temporary moratorium blocking medical marijuana dispensaries in town last month, the decision was made with these uncertainties in mind.
“I am not convinced they are legal,” said Nevada County District Attorney Michael Ferguson of marijuana shops.
The state’s stance
Medical marijuana was first legalized by California proposition 215 in 1996. But the law was broad enough to leave the specifics of legal amounts, distribution and enforcement cloudy.
In 2003, the state senate attempted to clarify the medical marijuana law by enacting Senate Bill 420. Despite setting personal marijuana possession limits, outlining a medical marijuana identification card system, and reaffirming the legality of marijuana for medicinal use, the bill also spurred a new round of questions and interpretations.
One of the largest unanswered questions is how registered medical marijuana users can obtain the drug.
“We have to differentiate between a medical marijuana dispensary and a medical marijuana collective,” Ferguson said.
A collective — which grows, divides and distributes marijuana among a group of patients without charging money — is allowed under state law, Ferguson said. But as soon as an establishment starts accepting money for cannabis, it is not supported by current medical marijuana statute, he said.
“They start charging money,” Ferguson said, “and they are selling marijuana.”
Placer County Deputy District Attorney David Tellman agreed that dispensaries that sell pot are on shaky ground.
“I think there is an open question if the dispensaries are authorized by SB 420,” Tellman said.
With the definitions of “collectives” and “primary caregiver” up for interpretation, the application of the Senate bill is still “as clear as mud,” Tellman said.
In the end, Placer County looks at whether they can convince a jury that the person violated law beyond a reasonable doubt before taking a marijuana case, said Tellman.
Two dispensaries, two outcomes
Just down Interstate 80 from Truckee, two medical marijuana dispensaries opened up in 2004. In their short existence the two shops have had wildly different experiences.
Roseville’s Capitol Compassionate Care opened as a small marijuana distribution center in late January. But towards the end of 2004 the center had grown to employ 14 people and reportedly cultivated nearly 2,000 marijuana plants.
In early September federal officials raided the dispensary, confiscating marijuana and other property. Although no drug charges were filed by the federal agents and the shop reopened the next day, the dispensary voluntarily shut down in less than a month.
Meanwhile, the Golden State Patient Care Collective opened in Colfax after co-owners Jim Henry and Cheryle Riendeau were discouraged from opening a dispensary in neighboring Nevada County.
A year after their doors opened, the Colfax store is still seeing 50 to 100 patients come into the shop each day, said Anita Lincoln, a Golden State Patient Care Collective employee. And unlike the Roseville location, the federal government has largely left them alone.
The shop, which is located in an office complex off of Highway 174, has two security guards, security cameras and alarm systems, Lincoln said.
“We have security but we’ve never had to use them,” she said.
In a town that does not even have a regular pharmacy, most of the dispensary’s patients are between 50 and 70 years old and are visibly ill, often limping or on crutches, said Lincoln.
Federal vs. state law
Federal law and California law butt heads on the medical marijuana issue, and it remains unclear which statute takes precedent. A Supreme Court case, Raich v. Ashcroft, is expected to resolve this conflict.
The crux of the Supreme Court case is whether medical marijuana cultivation and distribution is considered “interstate commerce,” which falls under federal jurisdiction.
The federal government argued that even if marijuana is cultivated and given away for free it still constitutes interstate commerce. The plaintiffs said that marijuana that is cultivated and consumed in a single state, and is not bought or sold, is subject only to state law.
The Supreme Court finished hearing arguments on the case last year and is currently formulating a decision.
When that decision is handed down it will eliminate much of the murkiness surrounding the enforcement of medical marijuana uses, said Sgt. Ron Ashford of the Placer County Sheriff’s Department.
“In the legislation there is a lot of room to move there — a lot of leeway,” Ashford said.
Meanwhile, patients and operators of the marijuana dispensaries wait for the court decision that is expected to either endorse or criminalize the distribution of medical marijuana.
“We have a ton of patients that are terrified,” said Lincoln, from her job at the Colfax marijuana dispensary. “If we get taken away they will not know what to do.”