Pubdate: Sun, 01 May 2005
Source: Marin Independent Journal (CA)
Copyright: 2005 Marin Independent Journal
Contact:  http://www.marinij.com/
Details: http://www.mapinc.org/media/673
Author: Josh Richman, Oakland Tribune
Cited: Americans for Safe Access http://www.safeaccessnow.org/
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)

MORATORIUMS, LAWSUIT MARK MARIJUANA DEBATE

A lawsuit filed last week against a Central Valley city signals medical 
marijuana advocates' growing concern over a municipal backlash against 
cannabis clubs up and down the state.

Oakland-based Americans for Safe Access sued Fresno last Monday for 
enacting a ban on medical marijuana dispensaries, which the group says 
violates California laws entitling patients and caregivers to the medicinal 
herb.

But almost nine years after Golden State voters approved a compassionate 
use law, what that law and a 2003 implementation law actually allow remains 
somewhat vague. Many cities, experiencing or fearing an explosion of 
dispensaries, recently have enacted moratoriums on any new ones to allow 
time for developing regulations.

"The last six months have shown a big increase in people feeling more 
courageous to try to open a local dispensary, and their inquiries to their 
cities is what has spurred a lot of these responses," said Americans for 
Safe Access organizer Hilary McQuie. "It became understood as the process, 
even though it's not necessary to have a moratorium just to develop 
regulations."

What's not permissible, she said, is an outright ban. "It's not 
appropriate, nor is it legal, to disallow dispensaries from operating in 
that locality."

Neither California's Proposition 25 of 1996, nor a 2003 law creating a 
photo-identification system for patients and caregivers, clearly addresses 
where and how patients and caregivers are to procure marijuana for medical 
use. The 2003 law, however, does provide that card-carrying patients who 
associate "in order collectively or cooperatively to cultivate marijuana 
for medical purposes" aren't subject to criminal punishment.

Fresno City Council last October passed an ordinance banning medical 
marijuana dispensaries that serve three or more patients; the city's police 
chief advised the council to pass it as a health and safety issue. A Fresno 
city spokesman didn't return a call seeking comment on the lawsuit Friday.

Meanwhile, dozens of California cities have put the brakes on any new 
dispensaries while they mull regulations. Rohnert Park on Tuesday became 
the latest, enacting a 45-day moratorium.

With cities and counties scrambling to develop their own dispensary 
policies, California seems poised to become a regulatory patchwork. Not a 
problem, McQuie said: "It's OK for local areas to have varying regulations 
around dispensaries just like local governments have zoning for other types 
of businesses."

Cities should look for an already-proven model, and McQuie said Oakland 
fits the bill. It's not perfect, she said - medical marijuana advocates 
still believe the city needs more than four clubs, with longer hours and 
fewer restrictions.

But a city report issued in early April found that "during their first 
seven months of operation, the permitted cannabis dispensaries have shown 
that, in general, they can function without creating a nuisance in the 
neighborhood or draining police resources." It also found "they likely 
increase the sales of other businesses in the neighborhood."

Other cities should put that in their pipes and smoke it, McQuie suggested, 
and "take courage from Oakland's example."

What California cities ought not to be doing is awaiting a U.S. Supreme 
Court decision in a case brought by patients Angel Raich and Diane Monson 
of Oakland and Oroville, respectively. That case deals only with Congress' 
authority to restrict wholly intrastate medical use of marijuana, and no 
matter how the court rules, California's laws will still stand, McQuie said.

"The outcome is irrelevant to dispensaries," she said. "Our fear is that 
local law enforcement won't understand that they're supposed to be 
following California law when there's a conflict between California and 
federal laws."

Actually, the state Attorney General's office might've said as much 
recently, acknowledging in a footnote to a brief in a case involving 
seizure of a patient's plants "that - both generally and in the specific 
context of interpreting the Compassionate Use Act - it is not the province 
of state court to enforce federal laws." 
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MAP posted-by: Richard Lake