Promised medical marijuana regulation far away following raid of dispensary in San Mateo

June 10, 2008

Michael Manekin, San Mateo County Times

When federal drug enforcement agents raided three medical marijuana dispensaries in San Mateo last year, county officials responded to the outcry from local cannabis patients by calling for guidelines to distribute the controversial medication.

But the Peninsula's last remaining dispensary was raided by federal agents two weeks ago, and the county is still far from creating a promised model ordinance designed to help medical marijuana patients receive their medication.

What's the hold-up?

For one thing, the legal landscape for medical marijuana in California keeps shifting with every new appeals court decision and proposed legislation, according to Deputy County Counsel Penny Bennett.

Drafting a model ordinance presents another problem because the county counsel's office must check with the various municipalities that would even consider implementing guidelines for the distribution of cannabis, Bennett added.

But Ken Estes, the 50-year-old owner of Holistic Solutions, the San Mateo-based medical marijuana dispensary that federal agents put out of business two weeks ago, believes the county has delayed regulation for too long.

"People in the local government should really stand up and support us," Estes said during a recent interview in his abandoned dispensary on Second Avenue and South B Street. "But if they think that medical marijuana is such a righteous thing, what are they really doing about it? I have sick patients who have to drive now 30 minutes into San Francisco, and they have to go to bad neighborhoods, too.

"Here," he said, pointing toward the jars of herbal teas and bottles of tinctures that provide the window dressing of legitimacy for his dispensary, "the patients had a real good thing—a nice safe environment with quality medicine."

Estes, who said he began fighting to legalize medical marijuana after he was paralyzed in a motorcycle accident nearly two decades ago, is the owner of three medical marijuana dispensaries. He also has locations in Richmond and Lake County.

All three dispensaries have remained closed since May 28, when DEA agents conducted their raids on Estes' operations, which also included several growing areas in the Bay Area and Humboldt County.

"I'm notorious for having high-quality medicine at an affordable price," Estes said, a boast substantiated by several advocates and patients who say he carried a great variety at affordable prices.

By the time federal agents shut down Holistic Solutions, Estes said, he was serving some 5,000 patients at his downtown San Mateo dispensary.

Many of those patients relied on Estes' dispensary to treat ailments ranging from chronic arthritis and attention deficit disorder to terminal diseases such as cancer and HIV, Estes said.

Then again, he added, other patients probably experience no such suffering.

No questions asked

At Holistic Solutions, as at nearly every other dispensary where cash is exchanged for medical cannabis, some of the clientele have no legitimate medical need for medical marijuana, Estes said.

Many of the young men in their late teens and early 20s who frequented Holistic Solutions probably scored their medical cannabis prescriptions from "pot doctors," physicians who make their living, in part, by signing off on prescriptions with few questions asked in exchange for a couple hundred dollars, Estes said.

Rich, a 20-year-old San Mateo resident who asked that his last name be withheld to protect his identity, said he visited such a doctor in San Francisco to treat "stress" and "back pain" with medical cannabis. No questions were asked, he said.

Many medical marijuana advocates and dispensary owners, including Estes, insist the state's inability to regulate how doctors prescribe cannabis has tainted dispensaries with reputations for serving individuals who simply want to use marijuana as a recreational drug.

When Holistic Solutions opened its doors nearly a year ago, San Mateo police Chief Susan Manheimer and Chief Deputy District Attorney Steve Wagstaffe paid a visit to the dispensary and told Estes they were concerned about the number of "young and healthy" customers lining up for medicine, Estes said.

"I told them I agreed with them," Estes said, explaining that he told the two law enforcement officials that state law requires dispensary owners to serve anyone with a state card or a doctor's note. "Doctors have to be responsible writing prescriptions, but the state needs to work out the logistics," he said.

The slow wheels of government

Actually, county officials committed to working out the logistics all by themselves — but that was more than nine months ago.

The officials' commitment, made in the wake of the federal raids that eliminated three of the Peninsula's four dispensaries, didn't promise to fix the problems with the "pot doctors" or repair the fundamental contradiction that state law's sanction of medical marijuana is disregarded by the federal government.

Instead, officials asked the county counsel's office to draft a model ordinance with the reasonable goal of regulating how medical marijuana patients receive their medication — something that several dozen cities and counties throughout the state had already accomplished.

"San Mateo County has always been at the forefront of attempting to meet the needs of its citizens, and we have a heart," county Supervisor Jerry Hill told the Times last year. "If someone is suffering, we want to prevent that. And if someone is suffering from a disease, and medical marijuana is their only relief, we want to facilitate that within the law."

More than nine months later, Hill said officials are still "trying to create the legal opportunity for (patients) to obtain their medical marijuana." Then, he echoed the county counsel's opinion that the task is difficult when the legal landscape keeps shifting.

Nonetheless, he added, the county counsel's office continues to meet with various city attorneys to nail down a final draft.

For local medical marijuana patients, who have waited nearly a year for local officials to help them access their medication, there's just one problem: When the county finally gets around to drafting an ordinance, the regulations won't allow them to purchase their medicine.

Interpretations of law

Exchanging money for medical marijuana is against state law, according to District Attorney James Fox.

State law allows medical cannabis patients to get their medicine from nonprofit cooperatives — a provision that leaves much room for interpretation.

While defenders of medical marijuana argue that the law allows for dispensaries that accept money from multiple patients in exchange for cannabis, Fox maintains that such operations serve "customers, not patients." Dispensaries serving hundreds of patients are hardly nonprofit cooperatives, according to Fox, whose office has made his position abundantly clear to the county's city attorneys, local officials say.

In fact, Fox previously told the Times he alerted the DEA to the presence of one dispensary in San Mateo — information that led to the bust of the three dispensaries last year.

Fox said the district attorney's office did not tip off federal agents to Holistic Solutions in San Mateo (Estes said he believes an arrested wholesale supplier informed on him to negotiate a better deal with the federal government), but his office has remained firm in its position on state law.

"Our interpretation of the law is that (dispensaries) violate state law," Wagstaffe said.

Meanwhile, Bennett and various city attorneys continue to defer to the district attorney office's interpretation of the law as doctrine.

How is it that several dozen local governments in California — including 29 cities and eight counties — have chosen a different interpretation of state law, choosing to enact ordinances that regulate the distribution of medical marijuana through dispensaries?

"If dispensaries are unlawful, I don't know how other agencies regulate them," Bennett said.

Kris Hermes, spokesman for Americans for Safe Access, an Oakland-based advocacy group for medical marijuana, calls Fox's interpretation of the law "false."

"If San Mateo County argues that dispensaries are illegal under state law, that would mean in essence that three dozen localities in California are breaking state law. And we don't believe that's the case," Hermes said.

"Meanwhile, now that the DEA has raided the Peninsula's last dispensary, hundreds, if not thousands, of local patients are being forced to drive long distances to obtain their medicine—and that is a travesty."

"Not afraid of the truth"

Whether the former customers of Holistic Solutions now forced to drive to San Francisco, Oakland and points beyond to access their medicine are truly in need is a matter of opinion.

"I can tell you the people pulling up and coming in there are not sick," said Laurie, a stylist at a neighboring salon who declined to give her last name. "I can tell you there's more boys with saggy pants going in there than anyone else."

Many of the Second Avenue business owners whose stores and restaurants neighbor Holistic Solutions reported that although the shuttered dispensary never caused disturbances in the neighborhood, most of the patients lining up for medicine were young men in apparent good health.

"The customers were a bunch of punk kids," said John Perez, 27, of Atlas, who works at a skate shop across the street. "Some of the kids came in here and bought shoes, but they stank like weed and gave our skate shop a bad reputation."

Estes, who acknowledges that many of his customers may not have legitimate medical reasons for acquiring their doctors' prescriptions for cannabis, also admitted that his dispensary acquired 80 percent of its product from large wholesale operations that may also deal marijuana to the black market.

"You know why (the DEA) came after me?" he said. "Because I'm outspoken, and I'm not afraid of the truth."

Estes, who met with federal agents Tuesday, said he was warned that the charges against him were serious and that he'd wind up in prison for several years. Holistic Solutions, he added, would probably not reopen any time soon.

Staff writer Michael Manekin can be reached at (650) 348-4331 or mmanekin@bayareanewsgroup.com.



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