Medicinal marijuana not easy to access

August 27, 2005

Mary Anne Ostrom, Contra Costa Times

If you are a medicinal-marijuana patient in Santa Clara County, there is no place to buy your medicine from a legitimate dispensary. To meet state rules, you either have to grow it yourself or use a dispensary elsewhere.

That's because city after city has turned away prospective operators since 1996, when 56 percent of the state's voters approved Prop. 215 sanctioning medicinal-marijuana use.

San Jose, which in 1997 became the first city in the nation to write an ordinance setting up dispensary rules, took it off the books a few years ago, pending court decisions. Now City Attorney Rick Doyle says that his reading of a U.S. Supreme Court decision in June makes such dispensaries open to federal prosecution and that he'd advise the council against approving one.

Santa Clara's head of planning cited the same court ruling recently to deny an application by an Oakland-based dispensary, Dragonfly Holistic Solutions, that had to shut down because of Oakland's new cap on the number of dispensaries. Their San Francisco branch was shut, too, because they violated that city's temporary moratorium while it considers new rules.

Supporters of medical cannabis say the high court never ruled on the constitutionality of California's Prop. 215 and those cities are using the decision as an "easy out."

Santa Clara County still has an ordinance covering unincorporated areas but the rules are so strict that only a handful of applicants have ever shown interest and none operate now.

But that doesn't mean there won't be more attempts.

City officials in Mountain View have had informal talks with a prospective pot-club operator, and the council has directed staff to examine the legal and zoning issues involved.

San Jose attorney Daniel Halpern represents a small group of medicinal marijuana patients, calling themselves Epicare, whose members say they want to fill what they describe as a large need for a dispensary somewhere in the county. They are looking for a willing landlord and sympathetic local officials.

"Some cities are willing to stick out their neck regardless of what the law says. So far, there have been no consequences," said Halpern. But, following the U.S. Supreme Court decision, he added "there is a general atmosphere of extreme caution."

Beginning possibly as early as fall, Santa Clara County's health department plans to issue state-sanctioned medical marijuana cards to patients who can prove a doctor has recommended they use marijuana for one of a wide variety of ailments. It's required of counties to issue the cards under state law.

The cards are voluntary for patients, but more often now dispensaries are requiring such cards for entry, or at the very least a letter from a doctor. Santa Clara County residents who qualify will be able to use their cards at dispensaries in other counties or show them to law enforcement should they be questioned for possessing or growing marijuana within legal thresholds.

But state officials already are warning the cards may not protect against federal prosecution.




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