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Lothar121

No Standard for Cities on Pot Issue
Tom Lochner | Contra Costa Times | 04/10/06

Nearly a decade ago, California voters legalized marijuana for medical purposes.

The Compassionate Use Act of 1996 allows patients to grow, possess and use marijuana on the recommendation of a doctor. It has meant relief to many who suffer from chronic pain and from illnesses such as cancer, arthritis, AIDS and many others.

Today, city and county officials across the state say they are caught between the will of the voters and federal law, which classifies marijuana as an illegal drug with no medical use and a high potential for abuse -- the same as heroin.

Almost 10 years since medical marijuana was legalized in the state, most local governments do not have regulations for medical marijuana dispensaries, popularly know as cannabis clubs.

Some cities, such as Concord, have banned them outright, invoking federal law, under which marijuana is illegal, period.

Others have enacted moratoriums as they wait to see what the courts and other cities are doing -- even as federal agents periodically raid dispensaries in the state.

"We don't distinguish between medical marijuana and marijuana," said Special Agent Casey McEnry of the U.S. Drug Enforcement Agency in San Francisco. "It's marijuana, and it is a violation."

Two U.S. Supreme Court cases in the last five years have confirmed the DEA's mandate to enforce the federal Controlled Substances Act in spite of California law to the contrary, McEnry said.

In June, the court affirmed that federal authorities can prosecute medical marijuana patients even if they are acting in accordance with state law. In a 2001 case, the court rejected medical necessity as a justification to use or distribute marijuana.

Reacting to the 2005 Supreme Court ruling in a bulletin to law enforcement agencies statewide, California Attorney General Bill Lockyer opined that "California's Compassionate Use Act is not pre-empted by federal law" and "the use of medicinal marijuana under state law is unaffected" by the ruling.

"It's a fascinating kind of game that's being played out there," said Marsha Cohen, a law professor at Hastings College of the Law in San Francisco and co-author of the text "Pharmacy Law for California Pharmacists." Ongoing tensions between the federal government and the state result in a "shadow medical system" surrounding medical marijuana, Cohen said.

Today, slightly more than 20 California cities have medical marijuana dispensary ordinances; an almost equal number have bans or ordinances so restrictive that critics say they amount to a virtual ban. About 50 cities have moratoriums on the opening of new dispensaries, according to Americans for Safe Access and an Albany city staff report.

Martinez is the lone city in Contra Costa County with a regulating ordinance, dating to 2000, one that advocates say is too restrictive; there is no known cannabis club in that city today.

Elsewhere in the East Bay, most cities did little or nothing until 2004 and 2005, which saw a flurry of moratoriums. Some cities enacted them on an urgency basis after would-be dispensary operators shopped the idea to planning departments.

The moratoriums -- in most cases, a 45-day urgency moratorium followed by a 101/2-month extension -- ostensibly bought the cities time to craft an ordinance. The moratoriums can be extended for a second year.

Dublin, Hercules, Livermore, Pleasant Hill, Pleasanton and San Pablo are in the first year of moratoriums. Albany, Antioch, El Cerrito, Oakley and Pinole are in their second year.

Albany and Pinole extended their moratoriums just this past week. Pinole city attorney Benjamin Reyes II, has said his direction is to draft an ordinance "that won't be immediately challenged by either the federal government or the Americans For Safe Access," a patient advocacy group that has sued Concord in state court over its marijuana dispensary ban.

"We're still at the information-gathering stage," said Pleasanton assistant city attorney Larissa Seto, whose city is under a moratorium until August. "This is so new."

Patients and advocates say cities are stalling, or worse.

"Any city that passed a moratorium that doesn't have an existing dispensary and hasn't taken any action to write an ordinance is clearly stonewalling," said Hilary McQuie, spokeswoman for Americans for Safe Access. "There are many good models of ordinances. It shouldn't take them a year."

"They're just caving in to the federal government," said Dennis Fulkerson, 42, of Antioch. A quadriplegic since a diving accident in the Delta 20 years ago, Fulkerson uses marijuana to soothe spasms in his lower back and legs and nausea that is sometimes so intense that "I couldn't see straight." For him, medical marijuana works faster than any conventional drug.

"It's my right," Fulkerson said. "It was voted in by the people of the state."

Deryl Bergman, 56, of Concord, suffers from fibromyalgia and osteoarthritis, but it was her foot neuropathy that drove her to seek out marijuana, she said.

The Compassionate Use Act gave hope to tens of thousands of Californians for whom marijuana is the medication of choice -- if not the only affordable alternative -- for treating cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine and other ailments. Between 150,000 and 200,000 Californians were medical marijuana users as of last year, according to the National Organization for the Reform of Marijuana Laws.

The 1996 act also envisioned "safe and affordable distribution of marijuana" to any patient who needs it, but left out the details.

The state Legislature in 2003 sought to mend that flaw by passing SB420, which set up a voluntary patient identification system and established threshold amounts for cultivating and possessing marijuana.

Contra Costa County earlier this year began to issue medical marijuana identification cards that are valid statewide.

But if the state's patients and dispensers got clarity from SB420, they remain outlaws in federal eyes.

"Theoretically, the feds could go after a person who possesses even a single joint, or less for that matter," said Joe Elford, legal counsel for Americans For Safe Access.

All of this leaves cities and counties, as well as patients such as Fulkerson and Bergman, in an uneasy legal twilight.

Federal authorities, however, say the Supreme Court rulings make the situation as clear as day.

"Anyone who dispenses marijuana is doing so at their own legal peril," said McEnry.

For Fulkerson, the Antioch patient, such words have an ominous ring. If dispensaries shut down, it could force patients to seek marijuana from illegal dealers on the street, he said.

"Right now, if I want to get some medicine, I have several choices," he said. "But that could change. And it makes me afraid."

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Little Nicky

Just a quagmire of differing opinions. And they have had 10 years to get their act together.

Toking Jedi

I feel the problem here is that local officials are too busy looking up to the federal government, fidgeting while they mull over whether to break Federal law, to remember that they first and foremost serve the PEOPLE, and not the federal government. The people voted for the 1996 Compassionate Use Act, and the people of the cities voted for their city representatives. I really think that it's up to the residents of each city to get on the asses of their representatives to stop stalling and use the examples of other cities to craft their own ordinances.

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nerphroll

Medical marijuana laws allow people to grow, possess, or use marijuana for medicinal purposes as directed and recommended by a doctor. But if you don't grow, how can you use or possess? Without a green thumb, you're forced to obviously buy from someone else, for which there is no state-supported provision in California. So all people are expected to become Mr. Lawn Doctor overnight? These laws are ridiculous and poorly thought out. If the state won't have the balls to follow through with medical marijuana, the current allowances are a waste of time and utterly useless. The Feds can still bust you at any time, even if you do grow your own. Marijuana needs to be taken OUT of the same boat as cocaine and heroin, and become de-monsterfied, to allow the feds to loosen up enough to let state medicinal marijuana laws serve some good.
This would all be so much easier if marijuana was legal.

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HELP ME IVE BEEN DOING THIS FOR OVER 13 YEARS!!!!!!!!!!
PURIFY ME!!!!!!!!!!!!!!!

Toking Jedi

I do agree with you, my good man. But your last sentence is a bit of circular logic. It would be easier if marijuana was legal--however, it isn't. Ok, maybe it's not so circular; seemed circular at the time. Anyway, my point is that it's not legal, so what are we going to do to make it legal?