Gray areas in medical pot law stoke debate
October 29, 2009
Jennifer Muir, Orange County RegisterMichael Hawkins, a jolly looking man in loafers and a button down shirt, walks into King's Smoke Shop and asks for the cheapest pipe they've got.
Hawkins just came from one of five medical marijuana dispensaries that surround King's on the second-floor of a strip mall at Raymond Way and El Toro Road, and he's carrying a small paper bag containing cannabis called "OG Kush" – the type that he says stops his unbearable head aches and stimulates his appetite but doesn't make him feel high.
See, about a year and a half ago, doctors removed a tumor half the size of Hawkins' brain from his skull. In coming weeks, he'll start radiation to eliminate remnants of that tumor lodged behind his optic nerve. After the surgery, Hawkins says he was a drooling zombie, addicted to potent pain medicine. That is, until his son suggested he try marijuana.
"It took the pain away," says Hawkins, 59, a home building contractor before he got sick. "I hate losing control, and this doesn't make me … The benefits far outweigh any controversy."
Moments later, 27-year-old Jeff Kwollems and a friend leave one of the dispensaries wearing dark sunglasses and also carrying a paper bag.
"I'm a pothead to the core," Kwollems admits, saying he has a doctor's recommendation to smoke marijuana for an old snowboarding injury, but he'd light up regardless. "There are tons of potheads here. No one can sell weed on the streets anymore because of all the clubs (dispensaries)."
These two men both smoke marijuana within the parameters of state law. But the vast difference between their ages, ailments and attitudes contributes to the suspicion and debate that continues to swirl over the use of the drug 13 years after California voters made it legal for the sick to use cannabis.
The U.S. Department of Justice said last month that it would stop pursuing federal drug cases against defendants who comply with state medical marijuana laws. But local governments across the state are struggling to find fair ways to regulate and police dispensaries – or outlaw them all together.
And herein lies the problem: Medical marijuana dispensaries, their providers and patients operate in a legal twilight where generally the business they're in -- providing medical marijuana to sick people -- is legal under state law, but the specifics of how they do so may not be.
Who can smoke
California voters passed Proposition 215 in 1996, making it legal for patients and their caregivers to possess and grow marijuana for medical use with a doctor's recommendation.
Ailments that qualify under that law are as specific as cancer and AIDS and as general as "any other illness for which marijuana provides relief."
Since then, doctors who specialize in making marijuana recommendations have cropped up across the state, advertising in the back of weekly publications and with stacks of glossy fliers left in medical marijuana dispensaries and head shops. They quote business men and older ladies and soldiers about how medical marijuana has changed their lives. California NORML (National Organization for the Reform of Marijuana Laws) lists 10 such specialists in Orange County.
Doctors are supposed to give their patients a full examination before they make a recommendation, which is usually good for a year. Many ask for medical records confirming conditions for which their patients are seeking relief. Most charge a flat fee, and some doctors will refund the fee if the exam doesn't result in a recommendation.
"Some of the doctors are crooked," says Monica Hernandez, a manager at the Lake Forest Alternative Center collective. "That's where the medical board should come in."
But if doctors are widely abusing the system and handing out prescriptions to anyone who walks in the door, then very few are getting in trouble. California Attorney General guidelines say the state's medical licensing board is responsible for investigating complaints against doctors.
Since 1996, only 10 doctors have been sanctioned after 21 complaints – the majority for recommending marijuana to patients without a proper examination, records show. None of the sanctioned doctors listed office addresses in Orange County.
Where to get it
Before 2003, there were not many legal options for patients who legitimately had a use for marijuana: They could either grow it themselves, a caregiver could grow it for them or they could buy it illegally. In 2003, the lawmakers recognized another option -- allowing patients and caregivers "collectively or cooperatively to cultivate marijuana for medical purposes."
The caveat: They could not make a profit.
Attorney general guidelines issued last year offered further guidance: A "properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful." The State board of Equalization also requires dispensaries to collect sales tax and requires "businesses that engaging in such transactions hold a sellers permit," according to the attorney general guidelines.
The guidelines allow collectives to account for the costs of producing and distributing medical marijuana, and they prohibit sales to and purchases from people who are not members of the collective.
Still, that leaves many questions unanswered: What constitutes a "sale" of marijuana? Are dispensary staff and operators entitled to take a salary? If so, what amount is reasonable? Can growers in remote counties be members of multiple urban collectives and grow enough marijuana to supply all of them? Can cities and counties enact complete bans on dispensaries, and to what degree can they regulate them?
"Those are issues that the courts are going to have to resolve over time," Deputy Attorney General Peter Krause said.
So cities, law enforcement officials and medical marijuana advocates are left to interpret the laws as they see fit, then sort out their disagreements in court.
For example, more than 100 cities and seven counties have laws banning medical marijuana dispensaries, according to the advocacy group Americans for Safe Access. A group of patients sued the city of Anaheim over its ban, and their case – now in appellate court -- could determine whether cities can legally outlaw dispensaries or whether they need to regulate them instead, said Americans for Safe Access spokesman Kris Hermes.
The legality of medical marijuana sales could be next in court. Concerned by a dizzying proliferation of medical marijuana dispensaries in Los Angeles, the city's attorney and the district attorney last month promised to shut down dispensaries across town. They maintain that most are selling marijuana for profit in violation of state law.
"Sales are unlawful," says David Berger, a special assistant attorney for the city of Los Angeles. "Unless the collective can show that it's not a profit-based enterprise and its members are active and not simply walking in off the street, signing a form and paying $50 for an eighth of an ounce, then it will be viewed as a sale."
But advocates such as James Anthony, a land use attorney for medical marijuana dispensaries in Oakland, says Los Angeles officials are making weak legal arguments to support their ideological agenda to ban medical marijuana dispensaries.
"An effective way to do that is to say you can't sell, but there has to be a sale, to pay the bills, or rent," he says. "What product are you going to be able to produce and distribute without money? When my mother got ovarian cancer, she did not wake up and go to the back yard. A system that suddenly requires sick people to turn into farmers is doomed to failure."
And Hermes says sales are clearly legal because the state collects sales tax on cannabis sales and has decriminalized the distribution of medical marijuana among qualified patients and caregivers.
Still, like their Los Angeles counterparts, Orange County law enforcement officials also suspect that the majority of the dispensaries here are just storefronts for illegal drug dealing where dispensary owners are illegally profiting. And they've long focused on combating crime they say surrounds them, such as dispensary robberies, indoor growers and marijuana delivery services. They field complaints from neighbors concerned about suspicious activity surrounding some dispensaries.
Joe D'Agostino, an Orange County senior assistant district attorney who oversees the agency's narcotics division, says his office will prosecute any case where they can prove a violation of medical marijuana law. During the past two years, the division has filed cases against 1,270 defendants for illegal cultivation or possession of marijuana to sell. Most of those defendants bring up medical marijuana as a defense during some point in the investigation – just to see if it will work – but very few of those cases were against medical marijuana dispensaries or their members.
"We're not used to a moving target," D'Agostino said. "Robbery is always illegal. This sometimes is, and it makes it a little dicier to prosecute."
It's not easy for cities, either, and mistakes aren't cheap.
Garden Grove spent $250,000 after being sued for refusing to return 8 grams of medical marijuana to patient Felix Kha that police confiscated during a traffic stop in 2005. Kha later produced medical documentation that he was entitled to use marijuana. The city was forced to pay $139,000 in legal fees to Americans for Safe Access, which represented Kha, plus their own legal costs.
So far, the city of Lake Forest has spent $35,373.75 on an outside attorney for its civil lawsuit aimed at shutting down 14 dispensaries inside the city.
The reality is that small growers from across the state – and a couple of larger, more commercial sellers – provide pot to dispensaries, advocates and patients say. Police also say marijuana is smuggled into the country.
Anthony, the land use attorney, says centralized cultivation would be more efficient for collectives. No city in this state has ever licensed a dispensary to do a large scale grow, he says. He believes that some more progressive cities could take up those issues soon, but says that federal law makes the idea of regulated, large-scale marijuana crops "suicidal."
Not only is marijuana illegal in the eyes of the U.S. government, federal law allows the death penalty for people convicted of cultivating more than 60,000 plants, he says.
Thom Mrozek, a spokesman for the U.S. Attorney's office in Los Angeles, disputes that and says federal law only calls for the death penalty in narcotics cases if someone dies as a result of the illegal activities.
"Medical cannabis dispensaries are obviously on the front lines of civil disobedience," Anthony says. "Most cultivators are a little shy. Their property is at risk, their liberty is at risk, their children are at risk."
Since there's no regulation, practices for cultivating and distributing marijuana vary.
Harborside Health Center is one of four licensed dispensaries in Oakland, with 74 employees and revenues of about $20 million, the New York Times reports. The city regularly audits dispensary books, and left-over cash is rolled back into the center to pay for counseling and yoga sessions for patients.
Jason Andrews runs a collective and mobile delivery service from his home in La Habra, where he also grows about 30 plants. He says someday he'd like to own a larger-scale growing facility.
Andrews says he smokes most of the pot he grows – he was in a car accident and has a recommendation for marijuana for pain from four ruptured disks in his back. He was a recreational smoker for 20 years before that. What's left over, he contributes to the collective or other collectives where he's a member.
Some of his patients – he's officially got about 150 of them – also grow and contribute to the collective. Many of them are small-time growers who raise the plants in their homes. Others are commercial growers in northern California.
A friend periodically travels to Humboldt County to pick up batches of marijuana. Andrews pays the friend, and distributes it to the members of his collective when they call for a delivery. Most pay, but he also tries to donate or cut deals to members who can't, especially those who are terminally ill. Andrews says he's got some of the lowest prices around.
"I try to get a little bit more on what I got for it," Andrews says. "All that money goes into my business account. That money goes in to pay my electricity, my gas in my truck for deliveries, insurance, cell phones and part of my rent on my house."
The proceeds from his personal garden go into his personal bank account. All told, he says he'll make about $20,000 to $24,000 this year after his business expenses. He also is collecting disability.
The way Andrews sees it, he's operating legally. He went onto Legalzoom.com for help establishing his collective – Code 215 – as a 501c(3) nonprofit. He has a doctor's recommendation for medical marijuana and has registered for two state ID cards – one as a patient and one as a caregiver. He's got a sellers permit from the state board of equalization.
If the collective makes a profit, Andrews says he'll redistribute the cash among his members at the end of the year.
What's happing next
Orange County could soon make it clearer for dispensaries setting up shop in the county's unincorporated areas. Supervisor Janet Nguyen is developing a countywide policy that would regulate dispensaries, after learning that three new ones recently opened in Midway City.
"They're getting too many of them popping up, and there's no process at all for opening one of the other areas," Nguyen said. "What I was told is that the people who visit the three in Midway are really all young people. They're not the disabled cancer survivors."
Her chief of staff Andrew Do, a former prosecutor, says the proposed ordinance will contain provisions that allow the county to inspect dispensary records and ensure they're nonprofit enterprises. They'll also make sure dispensaries can't open near schools or day care centers, and he's considering a provision that would require all the marijuana dispensed in the county to be grown here, as well.
"I don't want it be a truck shipping it in from New Mexico or Arizona," Do said. "I also don't want it to be plants grown here and shipped throughout the state -- so that it's not a sham."
Meanwhile, as medical marijuana advocates and municipalities continue to negotiate their positions, the same disagreement is playing out over whether to legalize marijuana for all Californians – sick or well.
On Wednesday, the state Assembly heard some three hours of testimony about Assemblyman Tom Ammiano's bill to regulate and tax marijuana. No vote has yet been taken on the bill and none is scheduled. Meanwhile, activist groups are trying to get at least three different initiatives to legalize marijuana on the 2010 ballot.
Ryan Landers is a spokesman for one – The California Cannabis Initiative. He also is terminally ill with AIDS and was involved in the creation of Prop.215 and the state medical marijuana identification card program, he says. Landers hopes the state eventually will legalize marijuana for all, but even if that happens, he believes legal challenges to marijuana use will continue.
He's prepared for that.
"If I back off, I'm dead," Landers said. "Marijuana has saved my life, and I will not back off."