New California medical marijuana guidelines aim to flesh out vague law

August 31, 2008

Josh Richman , Oakland Tribune

Even as state Attorney General Jerry Brown was preparing to release new medical-marijuana guidelines praised by advocates, his narcotics agents were busting a Southern California dispensary.

Mixed messages? Not necessarily.

Both Brown and medical marijuana advocates say the guidelines issued last week finally flesh out the state's notoriously vague 1996 Compassionate Use Act and pose a threat only to illegal drug dealers using the voter-approved medical marijuana law as a smoke screen.

"We've always believed that dispensaries should be regulated as opposed to the 'Wild, Wild West' situation," said Americans for Safe Access Chief Counsel Joe Elford, who conferred with the state on the guidelines. "Many, if not most, of the clubs are already in compliance, and I think in the not-so-distant future the vast majority of them will be. They wanted guidelines, too, so they'd know what to do to comply with California law."

The most important part of these guidelines is the recognition that storefront medical marijuana dispensaries can operate legally, Elford said Thursday.

"It's our view, then, that localities passing outright bans on dispensaries are acting contrary to California law," he said.

Brown doesn't necessarily agree.

"I don't want to go beyond the guidelines," he said Friday, adding local dispensary bans are "a whole other question that I have to talk to my lawyers about, I don't want to give an opinion off the top of my head."

Several Bay Area cities, including Concord, Dublin, El Cerrito, Fremont, Hercules and Livermore, have the sort of dispensary bans of which Elford spoke. Concord Senior Assistant City Attorney Mark Boehme said Friday he hasn't fully reviewed the guidelines — "and that's all they are: guidelines, they're not legally binding" — and nobody has contacted the city about challenging the legitimacy of its 2005 dispensary ban.

Elford also said the guidelines send a "clear message to the federal government that dispensaries are here to stay, and "... that they should stop busting dispensaries because we can police our own."

Fremont City Attorney Harvey Levine said, "Marijuana distribution violates federal law, and last time I looked, it doesn't get you in trouble to abide by federal law."

Yet most recent federal raids have targeted dispensaries, which federal authorities claim are criminal enterprises that wouldn't meet Brown's new criteria, anyway.

And, asked whether it's significant that Brown issued the guidelines just a few days after his Bureau of Narcotics Enforcement raided a Northridge marijuana dispensary, Elford replied, "I hope not "... I don't know about the timing."

Brown said the only thing to read into the timing is that "we've been looking at some of the clinics that are flagrantly violating the law." The Northridge club was raided as an outgrowth of another, unrelated investigation, he said, but other clubs are under scrutiny.

Many communities remain antagonistic to dispensaries, he said. "In the Bay Area, you don't feel the same intensity as when you're talking to people in Riverside and San Bernardino and San Diego."

Brown's 11-page document says a collective dispensary can't be operated for profit and must have a defined organizational structure including detailed records proving users are legitimate patients with doctor recommendations.

"The collective should not purchase marijuana from, or sell to, nonmembers; instead, it should only provide a means for facilitating or coordinating transactions between members," the new guidelines say. The "cycle should be a closed circuit of marijuana cultivation and consumption with no purchases or sales to or from nonmembers. To help prevent diversion of medical marijuana to nonmedical markets, collectives and cooperatives should document each member's contribution of labor, resources or money to the enterprise. They also should track and record the source of their marijuana."

Dispensaries, for example, "that merely require patients to complete a form summarily designating the business owner as their primary caregiver — and then offering marijuana in exchange for cash 'donations' — are likely unlawful." Excessive amounts of marijuana and cash; failure to follow local and state laws applicable to similar businesses, such as licenses and tax payments; weapons; illegal drugs; sales to or purchases from nonmembers; and distribution outside California are red flags for law enforcement, the guidelines say.

Elford said the "closed circuit" idea aligns with Americans for Safe Access' interpretation of Senate Bill 420, a 2003 law that tried to flesh out a structure for implementing and obeying the 1996 law. And the guidelines crystallize protections for individuals as well, directing police on when it is and isn't appropriate to make marijuana arrests of people with state- or local-issued ID cards or doctors' recommendations," he said. "We will have a very aggressive campaign to make sure localities comply with the guidelines as well as dispensaries."

Brown is running for governor in 2010, so this is a good time both to flex some "tough on crime" muscles — which is the attorney general's job, after all — while also mending fences with advocates for a cause still supported by most Californians. But Brown said he was only heeding the call of local law enforcement.

"It clarifies the rules and makes it easier for law enforcement to do their jobs "... and the users and advocates are happy because it restated what is permitted by the initiative and the statute," he said. "It did what law is supposed to do: It set the ground rules for action both by individuals and by the government."

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