No standard for cities on pot issue

[palmspringsbum]

Posted on Mon, Apr. 10, 2006

No standard for cities on pot issue

By Tom Lochner
CONTRA COSTA TIMES

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."


--------------------------------------------------------------------------------
Reach Tom Lochner at 510-262-2760 or tlochner@cctimes.com.

[palmspringsbum]

Joint effort

Los Angeles, CA, 5/2/2006
BRAD A. GREENBERG , Staff writer
The L.A. Daily News


The plainly labeled brown door on the second floor of a Studio City office gives no indication of the marijuana being sold inside.

Valley Collective Care keeps the deadbolt locked. Inside sits an armed security guard; another watches over the stock. There is a surveillance TV in the lobby, a few copies of Amsterdam News and a white poster board with the handwritten message of the Fourth Amendment, protection from warrantless searches.

Between 11 a.m. and 7 p.m. daily, patients walk in with a slip of paper and an ID, and a few minutes later leave with a cure for what ails them.

Valley Collective was one of the first medical marijuana dispensaries in the San Fernando Valley when it opened last August. Now there are at least 20 in the Valley, with about 50 operating countywide and more than 200 throughout the state.

"This is the wild, wild West. Everybody is just trying to stake their claim," said Scott H. Linden, a Pasadena attorney who has helped several Valley dispensaries open.

Ten years after voters approved Proposition 215, legalizing marijuana for medicinal purposes, these pharmacies operate with little oversight.

Advocates maintain fairly comprehensive databases, but government officials, including those of the Los Angeles Police Department and the county's public health chief, don't even know how many dispensaries exist.

All it takes to get started are a few easily obtained business licenses, a willing landlord and a list of doctor-recommended patients such as Fritz Weaver, 44, of North Hollywood.

"I can function on pot and it doesn't destroy my liver," said Weaver, whose doctor told him to find an alternative to Vicodin for chronic back pain. "It's a no-brainer."

Cannabis clubs, or co-operatives, have been the source of controversy. Patients like Weaver have come to rely on them for comfort, but communities have taken a decidedly different view.

Because they house massive amounts of cash and thousands of dollars worth of marijuana, dispensaries have been targeted for smash-and-grab burglaries; Valley Collective had computers and an undisclosed amount of cash taken March 29. Some co-ops also have been accused of selling to people without prescriptions.

Seeking to limit such problems, some Northern California communities - including San Francisco and Oakland - have moved to regulate where, when and how these clinics operate.

Pasadena and 19 other cities have outright banned them.

And nearly 60 cities - including Simi Valley, Moorpark, Long Beach and West Hollywood, which already had seven - have enacted moratoriums on new dispensaries.

L.A. County Supervisors are scheduled to vote May 9 on a law to allow dispensaries in unincorporated areas, though not within 1,000 feet of schools, youth facilities, churches and parks. The proposed law would also require specific signage, proper lighting and security guards.

Sgt. Lee Sands, a Los Angeles police spokesman, said there has not been a trend of criminal activity occurring around cannabis clubs. The city has no regulations planned.

"Dispensaries must be regulated," said John Furry, founder of Weedtracker.com, which reviews co-ops based on their level of "compassion" for sick and dying people. Low marks fall to those places that overcharge because they know someone will pay.

"Many of these operators are in it just for the money," said Richard Eastman, an AIDS patient who in 1996 helped open L.A.'s first dispensary. "How could someone on Medicare or Social Security afford $20 a joint?"

Federal laws still consider it a felony to grow, sell or use marijuana. The U.S. Supreme Court ruled last June that Californians could be federally prosecuted for using marijuana - even if it was allowed under the state's Compassionate Use Act of 1996.

That means agents with the Drug Enforcement Administration could come knocking on Valley Collective's door any day. That's one reason co-ops keep close to the chest the names of their owners and employees.

DEA has performed dozens of raids during the past five years, the biggest and most recent on 13 dispensaries in San Diego in December. In many cases, paraphernalia has been confiscated but charges have not been filed.

Twenty people involved with medical marijuana have been convicted on drug charges since Proposition 215 passed, according to Americans for Safe Access. The DEA's office in Los Angeles couldn't verify that. To them, there is no distinction between using marijuana recreationally or medicinally - both are illegal.

But agents can't just shut down dispensaries the moment they open, said DEA spokeswoman Sarah Fenno.

"If you read in the paper someone was selling meth out of their house, we couldn't just go and arrest them. We would still have to conduct an investigation and obtain a search warrant or an arrest warrant to identify the players involved," Fenno said.

The Food and Drug Administration entered the politically charged arena April 20, when it said "no scientific studies supported medical use of marijuana."

That was endorsed by the White House Office of National Drug Control Policy, which interacts with DEA.

"We certainly don't want the absolutely fraudulent claim that this is some therapeutic medicine to sweep in here and confuse people about the risk that they are running when they take marijuana," Dave Murray, special assistant to the drug czar, said in an interview last week. "This is not a proven medicine. It has not been approved by the FDA."

This has caused much grumbling in the medical-research community.

"It's politics and not science that is driving the train here," said Dr. Donald Abrams, a professor of clinical medicine at University of California, San Francisco, whose studies have shown marijuana benefits some AIDS patients.

To many, the FDA's statement seemed to ignore a 1999 review by the Institute of Medicine, an arm of the National Academy of Sciences. That 288-page report found marijuana to be helpful with certain cancer and AIDS patients, particularly those having problems eating.

"There is an awful lot of scientific evidence," said Dr. John Benson, co-chairman of the review committee.

Cannabis sativa, as marijuana is known medically, has been found most beneficial for treating chronic pain; muscle spasms, such as those caused by multiple sclerosis; the physical wasting away of AIDS patients; and chemotherapy-induced nausea and vomiting.

Eastman, 53, of Hollywood was experiencing the wasting. Since contracting HIV in 1994, Eastman has been at death's door several times. Anti-retrovirals are keeping him alive, but they strip him of his appetite. Some AIDS patients literally starve to death.

Eastman didn't want to beat the disease, only to die from the treatment.

Early on he remembered that smoking marijuana as a teen had given him the "munchies," that stoner struggle to fill an insatiable hunger. Eastman's daily routine consists of taking protease inhibitors to combat the now-undetectable AIDS eight times a day and smoking marijuana twice, shortly after he wakes up and again two hours before bed.

"About an hour and a half ago, I smoked some medical marijuana, which is helping me eat this now," he said over a bacon-and-eggs breakfast.

"When we got the law in '96, I thought we'd won. Why do I still have to keep fighting 10 years later?" Eastman asked.

The debate over medical marijuana has been running for more than a century and a half.

Marijuana was introduced into western medicine in 1842, Abrams said. It was a legal, if unsavory, substance until four years after Prohibition ended. In 1937, marijuana had been identified as the drug of jazzmen and Mexican farmers, and Congress moved to outlaw it.

At hearings before the House of Representatives, the only opposition to the Marihuana Tax Act came from the American Medical Association, which thought cannabis cultivation and consumption should remain legal but be regulated.

"The AMA stood alone in opposing it because they believed there was no real evidence it was harmful and they believed it would impede further studies," Abrams said. "And they were right about that."

In 1942, cannabis was removed from the U.S. Pharmacopoeia. It wasn't until 1986 that the FDA approved Marinol, a synthetic concentrate of the ingredient THC. Many patients dislike Marinol because it takes longer to enter the bloodstream and is more potent when it does.

"People don't know what it is about," said Gerardo Servin, a 20-year-old Glendale man who uses marijuana for an anxiety disorder. "They just think people are medicinal cannabis users because they want to smoke pot. Every day people look at me and they judge me."

While some of the estimated 150,000 cannabis patients statewide have their prescriptions written by a family physician, like Servin did, many travel hundreds of miles to visit one of the self-proclaimed pot docs.

Many of these 35 physicians, who are listed on the Web site of the California chapter of the National Organization for the Reform of Marijuana Laws, specialize in cannabis-related cases.

Referrals can be found on other Web sites, too. Weedtracker.com has an advertisement at the top of every page that lists a phone number and reads: "Medical Marijuana Recommendations." The 877 number connects to the West Hollywood office of Dr. James Eisenberg, who declined interview requests.

During the past decade, the California Medical Board has disciplined four physicians for prescribing marijuana without a thorough examination. Eisenberg was not among those disciplined.

Once the prescription has been written, patients choose their co-op.

They are called co-operatives because, by law, the dispensary can only have a half-pound of marijuana in stock for every patient on its rolls.

Many of these places resemble "drug dens," said Linden, the attorney who has helped open dispensaries.

"It has started to turn around. The places I'm working with now are more professional," he said, echoing a common refrain of the six co-ops visited.

"When you walk in, it should be the same thing as walking into a doctor's office. That's how it should feel. It should be professional."

brad.greenberg@dailynews.com

(818) 713-3634