THE POT HAZE

Faced With Conflicting State, Federal Laws, Local Officials Struggle With
Medical Marijuana Issue

Ten years after state voters approved the use of medical marijuana,
Sonoma County's courts, law enforcement, politicians - and patients -
are still struggling to make the law work in the face of unyielding
federal policy that considers any use of the drug illegal.

That conflict is playing out this month in two Sonoma County
courtrooms, in the Sebastopol council chambers and in the daily lives
of 375 holders of state-issued medical marijuana ID cards who face
huge fee increases.

The courts are dealing with law enforcement authorities who are
refusing to return medical marijuana because they say they are bound
by federal law.

At the same time, Sebastopol, following the lead of Santa Rosa and
county government, is trying to set rules for setting up medical pot
dispensaries in the city.

The result is a dizzying array of costly policies and regulations
intended to both regulate marijuana use and help and protect medical
marijuana users.

"It's a big mess," said Sonoma County Sheriff Bill Cogbill. "I'm
really worried about how this is all going to play out. Unless
something is done to clarify the law in this regard, we're going to
see the proliferation of marijuana in society."

Berta Bollinger, 54, an active member and patient of the Caregiver
Compassion Center in Santa Rosa, said advocates are working hard to
get the federal government to recognize medicinal uses for marijuana.

"It's not going to happen in this administration," said Bollinger, who
has a doctor's recommendation to use medical marijuana to treat her
depression, panic disorder and pain and fatigue symptoms. "It's a slow
process but we're getting there."

The proposed ordinance that goes before the Sebastopol City Council on
Tuesday would require a public permit process handled through the
city's Planning Department. Cotati also is considering an ordinance to
regulate dispensaries within city limits.

Sebastopol and Cotati are moving forward after a period of several
years in which cities countywide put a halt to the unregulated
cannabis clubs that began appearing after the passage of Proposition
215, the Compassionate Use Act of 1996. Local officials on their own
Since the act does not address the issue of how or where people are
supposed to get their medical marijuana, local officials are on their
own designing local regulations.

"It's been a struggle. This was just so unclear in state law," said
Jane Riley, a planner with the Sonoma County Permit Resource and
Planning Department. "With things like granny units, state law is very
specific."

Sonoma County gave preliminary approval three weeks ago to an
ordinance allowing for dispensaries to be set up in urban areas of the
unincorporated county. The ordinance, which goes before supervisors
March 20 for final approval, would require dispensaries to obtain a
use permit to operate.

The final language in the ordinance is currently being fine-tuned, but
supervisors have said they do not want on-site consumption and that
operations should be restricted to beyond 1,000 feet of a school ground.

Under the proposed Sebastopol ordinance, only one dispensary would be
permitted during the first year the ordinance is enacted. Another
would be allowed in the second year. The number of dispensaries would
be capped at two.

"We are putting it through the standard public hearing process," said
Kenyon Webster, a city planner in Sebastopol. "We see this as a
sensitive land use that needs careful review."

Webster cited potential adverse effects, such as parking and traffic
problems as well as the potential for criminal activity.

Criminal activity is the element that upsets neighbors and the reason
cities struggle to find locations.

In November, two men carrying guns and wearing ski masks forced their
way into a Sebastopol home, bound the couple living there and left
with marijuana plants intended for medical use.

In April, a 31-year-old Santa Rosa man was shot and killed in his
Wheeler Street home. Police believe the shooter was there to take the
victim's marijuana, kept for medical reasons.

Such examples have cities throughout the county moving carefully as
they try to determine just where to allow marijuana to be sold.

"There are significant legal issues between what the voters of
California envision and the federal government," said Webster.

Unlike under the county ordinance, on-site consumption would be
allowed in Sebastopol.

Legal experts say that inconsistencies such as these are a direct
result of a lack of direction from the state.

Santa Rosa City Attorney Brien Farrell said it's taken many years to
make sense of Proposition 215 and SB 420, subsequent state legislation
that created a voluntary medical marijuana ID program that was
supposed to clear up ambiguities in the original proposition. Law
still 'getting worked out' "There's a clear desire for consistency and
clarity and an interpretation of what rules apply," Farrell said.
"What is the law in California? That is still getting worked out these
many years later."

Santa Rosa got its medical marijuana ordinance in November 2005, just
seven months after adopting a ban to gain control of unregulated
dispensaries, including one on Sonoma Avenue near Juilliard Park.

Nowhere has the conflict between federal and state marijuana laws
become more evident than in the county courtrooms, where some law
enforcement officials are refusing to return confiscated medical marijuana.

On Thursday, Deputy Sonoma County Counsel Anne Keck, representing the
Sheriff's Department, was handed a setback in her effort to avoid
returning 25 pounds of marijuana taken from the home of an employee of
Marvin's Garden, a medical marijuana cooperative in
Guerneville.

Superior Court Judge Raima Ballinger rejected Keck's request for
lengthy civil discovery that would allow the Sheriff's Department to
verify the legitimacy of Marvin's Garden, as well as the employee,
Kenneth Wilson.

"We don't think that returning this property is legal," said Keck,
adding that it was not clear if the marijuana was being held by "a
lawful person." Judge cites court's role Ballinger made it clear to
Keck that it was up to the court to decide whether the marijuana
should be returned and that the job of the Sheriff's Department was to
act as custodian of the confiscated property.

In a similar case, Judge Lawrence Antolini has ordered the Santa Rosa
Police Department to return 18 pounds of medical marijuana to Shashon
Jenkins, 26.

Jenkins was arrested in October but the District Attorney's Office
decided not to file charges after Jenkins provided evidence that he
was a medical marijuana user and a provider for other patients.

In both cases, law enforcement officials argue that returning the
marijuana would put them in jeopardy of violating federal laws that
make marijuana illegal, regardless of whether it is being used for
medicinal purposes.

But William Panzer, an Oakland-based attorney who co-wrote Proposition
215, said that argument is a smoke screen. Panzer, who represents
Marvin's Garden, said it's a question of jurisdiction.

"If you're in federal court, federal law applies. If you're in state
court, state law applies," said Panzer. "Law enforcement doesn't like
(Proposition 215) and they don't want to follow it." Lack of federal
clarity Sheriff Cogbill said it's not that simple. He wants more
clarification from both the Supreme Court and Congress.

Cogbill said the 2005 U.S. Supreme Court ruling that said medical use
of marijuana was still illegal under existing federal laws fell short
of declaring such laws as Proposition 215 illegal.

"What it does is put law enforcement and criminal justice in a
quandary," Cogbill said. "If it has a medical use, then the federal
government needs to recognize that and schedule it as one of those
drugs that has a medical purpose."

The quasi-legitimacy of marijuana use has led to a lack of oversight
and regulation of its use as a medicine, Cogbill said."If we don't
have tighter controls on it, it's going to get out of hand," said
Cogbill. "Those cannabis clubs have to get their pot from someplace.
Are we now allowing organized crime to have a foothold in our community?"

The challenges are significant, but they are the natural result of
trying to resolve the law and community needs, said one medical
marijuana provider.

John Sugg of the Caregiver Compassion Center in Santa Rosa said city
and county ordinances regulating marijuana dispensaries are a sign
that marijuana laws are being taken seriously.

"Sure, it's been 10 years since the law passed, but the (Santa Rosa)
ordinance demonstrates that the whole thing is maturing," he said.