Theft from medical marijuana grow near McNary High raises questions

October 18, 2007

Jason Cox, Keizer Times (OR)

While still prohibited under U.S. law, an Oregon state ballot measure passed in 1998 allows people suffering from certain medical conditions to grow and smoke marijuana legally.

Likewise, state law provides enhanced penalties for cultivating, distributing or possessing illegal drugs within 1,000 feet of a school.

So what happens when statutes seemingly collide, such as a recent case where a certified marijuana patient was growing his crop mere yards from McNary High School?

It was one of the more interesting questions Keizer Police had to face in an incident where teenagers were allegedly trying to climb the fence into the patient's yard to steal the growing marijuana.

Police received a call on the evening of Sept. 15 from some teens near McNary High School. They said they were on the opposite side of the fence from a neighbor of the school, getting in a verbal confrontation before the neighbor chased them off with pepper spray. They said they could smell marijuana coming from the property, and accused the man of being intoxicated.

"So, once these four kids tell the officer this guy's possibly intoxicated, there's pepper spray and there's a smell of marijuana coming from the house, obviously he needed to go over there," Keizer Police Capt. Jeff Kuhns said.

"So he looked over the chain fence and basically saw a marijuana farm."

Police questioned the men at the house and found out people in the house grow marijuana for several patients who carry Oregon Medical Marijuana program cards.

"Once the officer saw that and researched the applicable statutes, they found that they believed they were in compliance with the law," Kuhns said. "(Applicable statutes say) you can't use your medical marijuana in public places or public view (but) that little clause only addresses use. It doesn't address growing it, and whether or not it should be viewed from a public area."

No charges were pressed in the incident. Likewise, both the residents of the house and McNary High administrators preferred to keep the matter quiet. McNary Prinicpal Ken Parshall said he told his staff and the school resource officer, but said he was concerned about cementing the rumors already floating around the McNary community.

He said he'd received no complaints from parents, but was told of reports that marijuana could sometimes be smelled in the parking lot of the school.

"Our main concern is that kids not have access to it, so we've not publicized the presence of the grow simply because we don't think raising awareness of drugs nearby campus advances public safety," Parshall said.

The cat was out of the bag, however, after police publicized that the same medical marijuana grow site was robbed on Oct. 10.

Anthony Beasley, 28, said he had reservations about the site being so close to a school. Planning to buy a house, he said the deal fell through, and he needed somewhere to live with a large, fenced-in back yard – and fast.

"I knew it might become an issue," Beasley said. "That was the one thing we were worried about was the kids."

Beasley swears by the benefits of using medical marijuana. He said he and other patients had tried painkillers and other prescription drugs, but the pills proved addictive and negatively affected their moods and lifestyles. According to the state of Oregon's Medical Marijuana Act Web site, Oregonians use marijuana to treat symptoms from cancer and subsequent chemotherapy, HIV and AIDS, nausea, glaucoma, symptoms of Alzheimer's disease and multiple sclerosis. More than 13,000 patients have cards to treat severe pain.

"I've got somebody close to me with brain cancer," Beasley said. "They're going to be dead in a couple of months."

Beasley grew for four cardholders, and was growing the maximum allowance of 24 plants – six plants per patient, each able to yield up to a pound of product. After the first incident – and finding out one of the plants had been tampered with – he was living in a trailer in the back yard to guard the plants. Beasley is careful to note that he is not the same man who allegedly verbally confronted the teens who first came near his yard.

But Beasley was inside the house when someone came over the fence – additional barriers of tarp and fencing had been erected to shield the view of the plants from the school parking lot – and took several of his plants. He believes a roommate made off with an additional portion of the crop. All told, he only has eight of the 24 plants he started growing.

"I'm hoping somebody comes forward," Beasley said. "… I'm interested in getting as much of the medicine back as I can."

He said this was his first time growing marijuana, and plans to grow another crop next year – but in another location.

And former city councilor Chuck Lee wants to make sure.

"Even though it is legal to grow [medical] marijuana on property adjacent to a school, I have deep concerns regarding the health and well-being of students at this school," Lee, recently elected to the Salem-Keizer Public Schools board, wrote in a letter to the Keizer City Council.

Lee is asking the city council to research the possibility of enacting an ordinance banning medical marijuana growth within 1,000 feet of a public or private school. He said he plans to work at the state level "to react to what I call a loophole in the Medical Marijuana Law."

But Sandee Burbank, executive director of Mothers Against Misuse and Abuse – a group that favors access to medicinal marijuana – said fears related to the plant itself need to be balanced against potential harm from all drugs, from street drugs like methamphetamine, to tobacco and even caffeine.

"When you look at the drugs in general, you find the legal drugs kill more people exponentially," Burbank said. "… Cannabis has never killed anyone by itself."

Burbank expressed sympathy for Beasley, and other medical marijuana growers who could be a hot target for robbery, or worse.

"The cost of cannabis can be $300 an ounce (for non-patients)," Burbank said. "People are really tempted to steal. We tell patients anytime you're growing you have to be very careful that it's out of public view, but you have to be very concerned about theft.

"It doesn't matter where you live – kids live everywhere, not just at the school."

The Keizer City Council has yet to take up the issue. The Council could choose to enact an ordinance, but first city staff would have to find out if such an ordinance is enforceable.

"The first question is legally can we take it up?" Eppley said. "Because essentially we would be superceding state law. I don't know."

A law professor who specializes in state and local government thinks the city can. Paul Diller, assistant professor of law at Willamette University, compared such a restriction to city zoning codes.

"The idea behind this proposed ordinance, I think, is consistent with what cities historically do, which is regulate all manner of land usage," Diller said. "… This is just one more category that Keizer would be adding to the mix of its zoning ordinance. To me, it isn't very different to say a bar or strip club couldn't be located within a certain distance of a school."

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