State & Local Government

The feds stay on the attack in California, and fallout mounts from last week's state Supreme Court decision allowing local dispensary bans. There's news from other states as well. Let's get to it:

Last Monday, US Attorney Melinda Haag moved to seize a building housing a San Francisco dispensary. Targeted is the Shambala Healing Center, a city-approved dispensary. Under federal pressure, Shambala's landlords earlier sought to evict it, but failed because it complies with state laws. While Haag has moved to seize buildings in Oakland, Berkeley and Marin County because they housed cannabis dispensaries, this is the Justice Department's first forfeiture action against a San Francisco landlord. Shambala was one of eight San Francisco dispensaries whose landlords received asset forfeiture threat letters starting in the fall of 2011.

Last Tuesday, the city of Garden Grove told dispensaries in the city they must shut down. The city sent out a cease-and-desist notice to dispensary operators, warning they must close this week or face $1,000 a day fines. The city had banned dispensaries in 2008, but turned to a registration process in 2011, then stopping registering dispensaries last year as it awaited the state Supreme Court's ruling on whether locales can ban them. After the high court upheld local bans, Police Chief Kevin Raney sent out a letter calling on all of the more than 60 dispensaries within Garden Grove to close no later than Tuesday. Dispensary owners who do not comply could face criminal charges, the letter said, as well as fines or civil lawsuits.

Last Wednesday, US Attorney Melinda Haag defended her use of lawsuits against dispensaries. Lawsuits against landlords of medical marijuana dispensaries and letters threatening the landlords have been reasonable and are supported by educators, addiction specialists, police officers, clergy, parents and others who are "negatively affected by marijuana," Haag said in a statement. "The marijuana industry has caused significant public health and safety problems in rural communities, urban centers and schools in the Northern District of California. Because some believe marijuana has medicinal value, however, we continue to take a measured approach and have only pursued asset forfeiture actions with respect to marijuana retail sales operations very near schools, parks or playgrounds, at the request of local law enforcement, or in one case, because of the sheer size of its distribution operations."

Also last Wednesday, the Berkeley Patients Group vowed to fight Haag's efforts to shut it down. "We intend to vigorously defend the rights of our patients and the citizens of Berkeley to be able to obtain medical cannabis from a responsible, licensed dispensary," said Sean Luse, the chief operating officer of the Berkeley Patients Group. The previous week, Haag filed suit against the dispensary's landlord seeking to seize the San Pablo Avenue retail space. Haag had previously forced the Berkeley Patients Group to move by threatening to seize its old locale because it was too close to a school. The Berkeley Patients Group, founded in 1999, is the oldest  continuously operating medical marijuana dispensary in the Bay Area and  serves more than 10,000 patients.

Also last Wednesday, a Thousand Palms dispensary shut down after last Monday's state Supreme Court ruling. The ruling upheld the right of localities to ban dispensaries, and the owner of the Hazy Colitas dispensary said he was closing his doors on his attorney's advice -- before Riverside County sheriff’s deputies did it for him. In nearby Palm Springs, the owner of the CCOC dispensary said he feared he would have to close his doors as well. Palm Springs is the only city in Riverside County that allows dispensaries, but it limits the number of city-approved permits to three. Plans to allow a fourth are on hold. The city has already shut down 12 non-permitted operations and will continue to work on closing five dispensaries still operating without proper permits, said Palm Springs City Attorney Doug Holland. CCOC doesn't have a permit.

Last Thursday, San Bernardino police raided and closed one dispensary and raided a second only to find it had already shut down. City officials reported that 18 of the 33 dispensaries in the city had already shut down in the wake of last week's California Supreme Court ruling. The city had ordered them to close last Tuesday. City officials vow to shut down the rest, too.

Also last Thursday, the Stockton city council took its first step toward banning dispensaries just three years after it moved to allow them. The council moved after city staff warned that by allowing dispensaries the city could leave itself open to federal enforcement measures. At the Thursday meeting, the Planning Commission voted 5-2 in favor of the ban. One already permitted dispensary may be allowed to stay open.

Last Friday, San Bernardino police raided a dispensary that had previously been ordered to close but had quietly reopened, staying closed during the day, but doing business in the evening. City officials said they weren't interested in making arrests, but in closing down dispensaries.

On Monday, the Riverside County Democratic Central Committee passed a resolution calling on state legislators to "enact statewide regulations and licensing requirements that will provide for the safety and concerns of local communities as well as fulfill the mandate of Proposition 215... 'for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.'" The committee said strong community support is needed to boost statewide regulation efforts at the capitol in Sacramento.

Also on Monday, San Diego's draft law on dispensaries was given to the mayor and city council. The proposal builds on an ordinance passed two years ago. Medical marijuana advocates considered the zoning law component too restrictive, however, and collected enough petition signatures to get it rescinded, but ended up with dispensaries being made illegal in the city. Mayor Bob Filner has made getting regulated dispensaries back in the city a priority. The newly drafted ordinance would allow dispensaries to operate legally for five years under a conditional use permit. A 100-foot buffer would be required between dispensaries and residential zones. It also forbid dispensaries within 1,000 of public parks, playgrounds, child care centers, schools, churches, municipal libraries, residential care facilities and other pot shops.

Illinois

On Sunday, Lt. Gov. Sheila Simon came out in favor of a pending medical marijuana bill, saying that testimony from seriously ill veterans and other patients helped change her mind. The bill has passed the Illinois House and awaits a Senate vote. The bill would allow patients with more than 30 medical conditions to seek recommendations for medical marijuana, but also requires background checks of both caregivers and patients, limits patients to purchasing 2.5 ounces at a time, and bars them from growing their own. They would have to go to state-regulated dispensaries.

Maine

On Monday, a dispensary workers union filed a complaint against Wellness Connection of Maine, the state's largest dispensary operator. The complaint filed by the United Food and Commercial Workers with the National Labor Relations Board accuses the company of subjecting employees to unfair labor practices, including retaliation for participating in union activity. The NLRB’s regional director in Boston will investigate the claims and determine whether they should lead to formal action.

Massachusetts

Last Wednesday, the Public Health Council finalized medical marijuana regulations. They are set to go into effect May 24. The regulations leave the determination of appropriate medical marijuana use to doctors and patients, rather than restricting it based on an arbitrary list of conditions, restricts patients to 10 ounces every two months (but allows doctors to recommend more), allow patients to visit doctors other than their primary care physician for recommendations, allow patients to use multiple dispensaries, and sets a financial hardship threshold at 300% of the federal poverty line. Dispensaries are set to open next year.

Michigan

Last Friday, Attorney General Bill Schuette ruled that parents who use medical marijuana aren't disqualified from child custody or visitation. That immunity isn't absolute, however, Schuette clarified. Judges can determine if use presents unreasonable dangers to children, but they can't independently decide if a parent is qualified to use medical marijuana. Schuette's opinion came in response to a question from a state legislator.

On Monday, it was revealed that the state Medical Marijuana Review Panel was dissolved after the state admitted it erred in setting it up. "After a careful review of the Medical Marihuana Act… the make-up of the current Medical Marihuana Review Panel does not meet the administrative rule requirements… As a result, the Department of Licensing and Regulatory Affairs will be appointing a new panel that complies with the law. No further meeting of the review panel will be held until the new panel is appointed," the state said.

A bill to decriminalize the possession of small amounts of marijuana has made it through the Vermont legislature, winning final approval Monday. Gov. Peter Shumlin (D) has said he supports it. If he indeed signs it, Vermont will become the 17th state to either decriminalize or legalize marijuana.

Under current state law, possession of up to two ounces of marijuana is a misdemeanor punishable by up to six months in jail for a first offense and up to two years in jail for a subsequent offense.

"We applaud the Vermont Legislature for adopting this much-needed legislation and setting an example for other states in the region and around the country," said Matt Simon, a legislative analyst for the Marijuana Policy Project. "The exceptionally broad support demonstrated for this measure reflects the progress our nation is making toward adopting a new and more sensible approach to marijuana policy."

The Marijuana Policy Project has spent years lobbying for marijuana reform in Vermont.

"The days of criminalizing people simply for using a substance less harmful than alcohol are coming to an end,” Simon said.

That's already the cost in most of the states in the region. Connecticut, Maine, Massachusetts, New York, and Rhode Island have all decriminalized pot possession. In New England, New Hampshire is now the lone hold-out.

The Colorado legislature Wednesday approved a pair of bills that will establish a regulated marijuana market for adults. The legislature was charged with doing so when voters approved the marijuana legalization Amendment 64 last November.

The marijuana regulation bills are House Bill 1317 and House Bill 1318. The former creates the framework for regulations governing marijuana retail sales, cultivation, and product manufacturing, while the latter enacts a 10% special sales tax (above and beyond standard sales taxes) and a 15% excise tax on wholesale sales.

Under Colorado law, the tax bill will have to be approved by voters in November. But three-quarters of Colorado voters support such pot taxation, according a Public Policy Polling survey.

"The adoption of these bills is a truly historic milestone and brings Colorado one step closer to establishing the world's first legal, regulated, and taxed marijuana market for adults," said Mason Tvert, director of communications for the Marijuana Policy Project, who served as an official proponent and campaign co-director for the ballot measure approved by Colorado voters in November. "Facilitating the shift from the failed policy of prohibition to a more sensible system of regulation has been a huge undertaking, and we applaud the many task force members, legislators, and others who have helped effect this change," Tvert said. "We are confident that this legislation will allow state and local officials to implement a comprehensive, robust, and sufficiently funded regulatory system that will effectively control marijuana in Colorado."

Look for an in-depth analysis of the new regulations coming soon.

In a ruling that will leave California's patchwork approach to medical marijuana dispensary regulation in place, the state Supreme Court ruled Monday that local governments can ban dispensaries from operating within their jurisdictions. For patients, that means access to medical marijuana at dispensaries will depend on the political currents in their city or county.

The case was City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., in which Inland Empire sued the city after Riverside using its zoning power to declare that dispensaries were nuisances and ordered them shut down. Inland Empire went to court to block the city from forcing it to close.

The decision was eagerly -- and anxiously -- awaited by all sides. Cases on local bans had been percolating through the state court system for several years, with state appeals courts splitting on the issue. An appeals court had earlier sided with the city of Riverside, but a trial court last summer held that Riverside County could not ban dispensaries, and an appeals court in Southern California had struck down Los Angeles County's ban on dispensaries.

The move by the city of Riverside was part of a broader counter-offensive against the proliferation of dispensaries after the Obama administration signaled in 2009 that it would take a largely hands-off approach. According to the medical marijuana defense group Americans for Safe Access, more than 200 cities or counties in the state have since moved to ban dispensaries. That move toward local bans has since slowed, in part because of uncertainty over their legality and in part because the federal offensive since the Obama administration shifted gears in the fall of 2011 has driven hundreds of dispensaries out of business.

Patient and industry advocates had argued that allowing localities to ban dispensaries ran counter to the intent of the state's voter-approved medical marijuana law. The law called for making medical marijuana accessible to people with doctors' recommendations for its use. But the state's high court sided with the localities.

"The issue in this case is whether California's medical marijuana statutes preempt a local ban on facilities that distribute medical marijuana. We conclude they do not," wrote Justice Marvin Baxter for a unanimous court. "The CUA and the MMP [state medical marijuana laws] do not expressly or impliedly preempt Riverside's zoning provisions declaring a medical marijuana dispensary, as therein defined, to be a prohibited use, and a public nuisance, anywhere within the city limits."

"While the California Supreme Court ruling ignores the needs of thousands of patients across the state, it simply maintains the status quo," said Joe Elford, chief counsel with Americans for Safe Access, which filed an amicus 'friend of the court' brief in the case. "Notably, the high court deferred to the state legislature to establish a clearer regulatory system for the distribution of medical marijuana, which advocates and state officials are currently working on."

"There is nothing surprising about this; it affirms the status quo," said Dale Gieringer, longtime head of California NORML. "I've been following the court cases and reading the state constitution, and it seems pretty clear that local governments have broad authority under California law."

"Today's decision allowing localities to ban will likely lead to reduced patient access in California unless the state finally steps up to provide regulatory oversight and guidance," said Tamar Todd, senior staff attorney for the Drug Policy Alliance. "The good news though is that this problem is fixable. It is time for the state legislature to enact state-wide medical marijuana oversight and regulation that both protects patient access and eases the burden on localities to deal with this issue on their own. Localities will stop enacting bans once the state has stepped up and assumed its responsibility to regulate."

"We're hoping that we can fix this by having some sort of state regulation system where people have access wherever they live in the state, if not by local dispensaries, then at least by some sort of delivery service," Gieringer said. "I think they're trying very hard to do something this year. Remember, last year, the Assembly passed a regulation bill and the Senate came very close, and now we have the leader of the state Senate supporting the same concept, so I think the prospects are pretty good for action."

The statewide medical marijuana regulation bills this year are Assembly Bill 473, sponsored by Assemblyman Tom Ammiano (D-San Francisco), and Senate Bill 439, sponsored by Senate President Pro Tem Darrell Steinberg (D-Sacramento). Both bills have passed their first committee votes and are supported by a broad coalition of patients, dispensaries, and law enforcement groups.

But until and unless statewide regulation is passed in Sacramento, the battle over patient access to dispensaries is now going to be fought in city council chambers and county supervisor meeting rooms in cities and counties across the state. That is going to mean differential access to medical marijuana depending on the political complexion of the localities where patients reside.