S.F. May Help Establish Pot Cooperatives
February 12, 2004
Lee Romney and Eric Bailey, Los Angeles Times
SAN FRANCISCO — Buoyed by a recent federal court decision and changes in state law, this seaside sanctuary for the medical marijuana movement might soon try to help establish nonprofit cooperatives to grow pot for the ill.
'It's looking better and better,' said San Francisco Supervisor Tom Ammiano.
'We've always had the inclination for the public policy and a lot of cooperation from the police, the Department of Public Health, the city attorney and district attorneys. The public sentiment is there. I think San Francisco is in a pivotal position to push this forward…. It's up to us elected officials to find a way.'
But a push by city leaders to back medical cannabis dispensaries might prompt swift retaliation by the federal government, a city staff report warned.
Ammiano said, however, that the city believed it had found 'the most benign way, with minimum liability and preemption of the federal government.'
Backers of medical marijuana welcomed the report, which comes more than a year after voters in the city overwhelmingly approved a ballot measure that directed city officials to explore establishing a program to grow and distribute cannabis to the sick.
Although city officials stop far short of recommending that San Francisco get into the marijuana cultivation business, cannabis activists say it is a solid first step.
'San Francisco has a long-standing commitment to medical marijuana,' said Marsha Rosenbaum of the Drug Policy Alliance. 'It is now up to the city government to work closely with patients and caregivers to put this plan into practice.'
The report by the city's Office of Legislative Analysis spells out several possible ways for San Francisco to get involved in growing medical marijuana — as well as potential pitfalls.
City help could range from amending the planning code to providing grant funds for the purchase of land or equipment used by a cooperative. The benefit of city involvement, the report said, would be to reduce the risk and cost of providing medical marijuana to chronically and terminally ill patients in the city, which for years has had one of the largest concentrations of AIDS patients in the nation.
But steps to help establish dispensaries, the report warned, could pose risks on several fronts.
City endorsement and funding of cannabis cooperatives could increase liability problems. The city might be liable, for instance, for an accident caused by a driver intoxicated on marijuana provided by a city-sanctioned cooperative.
The city could face an even greater legal risk in terms of the federal government's possible reaction. The U.S. maintains a strict prohibition on the use of marijuana by the general public, and might challenge an effort by San Francisco to help with medical marijuana cultivation. Even if the U.S. failed to deter the city in the courts, politics could come into play if the Bush administration moved to pull grants earmarked for San Francisco, the analysis said.
An official with the U.S. Drug Enforcement Administration's San Francisco office said the city could become a target.
'Federal law doesn't make any distinction about marijuana,' said Richard Meyer of the agency.
'No individual or institution is above the law. They would be in violation of the law, and it would be within our right to proceed as with any other investigation.'
For more than a decade, San Francisco has been a hot spot for the medical marijuana movement.
More than 7,000 medical cannabis ID cards have been issued by the city health department, and 14 medical marijuana buyers clubs operate within its borders. Buyers clubs, unlike cooperatives, do not grow their own supply and therefore have less protection under state and federal law, the city report said.
The city is looking to model its approach on a medicinal marijuana cooperative in Santa Cruz that challenged federal prohibitions on constitutional grounds after a September 2002 raid by drug agents shut down its growing operation.
Unlike pot-buyer clubs that sell marijuana to patients, the Wo/Men's Alliance for Medical Marijuana is a collective of 250 patients who grow and distribute cannabis with no money exchanging hands. The alliance argues that it is free of all vestiges of interstate commerce and thus immune from federal drug laws, which are based on the constitutional provisions of the commerce clause.
Under a federal court decision in December, collectives such as the alliance enjoy more protection from legal action by the U.S. government, officials in San Francisco believe.
State legislation signed into law last year also would help, city officials said. The law clarified that a single caregiver can serve more than one patient — allowing a collective to have a few gardeners who tend and distribute crops to a number of patients — and allowed for the creation of nonprofit cooperatives.
The statute also provides that marijuana may not be cultivated or distributed for profit, although a primary caregiver may get compensation for expenses.
Meanwhile, across the bay in Oakland, the City Council angered medical marijuana activists last week by approving limits on the city's swirling collection of medical marijuana vendors.
The City Council voted to issue business licenses to four nonprofit providers, forcing eight others to close in a medicinal pot zone known locally as 'Oaksterdam.'
The new regulations, which take effect in June, also forbid patients to smoke pot or consume pot brownies at the nonprofit clubs where they buy the drugs and limit possession per patient to 8 ounces of dry marijuana, six mature plants and a dozen immature plants.
The city had received complaints from a few businesses and nonprofits operating in the district because some patients allegedly were smoking pot outside. But other business owners said the pot clubs had increased foot traffic and commerce in the neighborhood.