NOTHING IN MEDICAL MARIJUANA INITIATIVE LEGALIZES DISPENSARIES

It's 2010, so it must be the Legislature's fault.

It's natural, then, to conclude that this week's little dustup over
how people get their medical marijuana must have been caused by "Olympia."

Emiel Kandi, a former mini-casino owner who now runs a marijuana
dispensary in Tacoma, told The Seattle Times, "The Legislature wrote
a bad law. I'm a creative guy, and I drove a truck through it. But I
haven't broken the law."

Whether pot dispensaries break the law or not is subject to
interpretation. That's what led to the confrontation between Tacoma
and eight entities last week.

But what isn't open to interpretation is who wrote the law. It wasn't
the Legislature but the supporters of medical marijuana who wrote
1998's Initiative 692.

That measure did not legalize medical marijuana. Instead, it created
an affirmative defense against possession and use charges. That is,
show your permission slip and you are either not charged or not found guilty.

Yet even the most creative reading of the initiative cannot reveal
anything that legalizes dispensaries. In fact, initiative drafters
intentionally avoided references to how patients might get marijuana
other than to say they could produce it themselves. That was done to
head off federal pre-emption of the initiative, since the feds
continue to say that medical marijuana laws are not allowed.

The loophole Kandi refers to is a section meant to help patients who
are so sick or disabled that they can't procure their own cannabis.
In that case, they can designate a "primary caregiver" who can act on
their behalf.

So when patients enter most dispensaries, they sign a form
designating the owner as that caregiver. Often, they un-designate the
dispensary before they leave to abide by a provision in the
initiative that a caregiver "help only one patient at any one time."

But there are other sections of the initiative that seem to close
this loophole. First, the caregiver must be "responsible for the
housing, health, or care of the patient."

A brochure produced by the Washington Citizens For Medical Rights
says this: "The fact that a caregiver must be responsible for the
health, housing or care of the patient could narrow the definition of
'primary caregiver' considerably. Family members, very close friends
and roommates of patients will fit this definition most readily."

And, like the patient, the primary caregiver can possess "no more
marijuana than is necessary for the patient's personal, medical use,
not exceeding the amount necessary for a sixty-day supply."

Because the law doesn't say how legitimate patients can get marijuana
legally, and because few want to hassle those patients, cops and
prosecutors have developed a tolerance policy. As long as the
dispensaries are subtle and don't deal to nonpatients, the cops look
the other way.

But Tacoma received complaints about dispensaries that weren't subtle
and seemed to be pretty popular. An investigation alleges that
several were selling to customers without legitimate medical
authorization. Several busts resulted.

That brought the issue - and the tolerance policy - to light, and the
city tax office determined that the businesses weren't legal. Letters
were sent ordering that they close, and patients were rightly concerned.

Tuesday, Mayor Marilyn Strickland crafted a truce to give the state
another chance to permit legitimate providers without having to
tolerate those who hide illegal operations behind humanitarian cloaks.

For more than a decade, Sen. Jeanne Kohl-Welles, D-Seattle, has been
trying to do what initiative drafters didn't - clarify how medical
marijuana can be produced and dispensed.

Along with Tacoma Sen. Debbie Regala, she is preparing a bill to
allow growers and dispensers under strict regulation of state agencies.

Cities, cops and patients all want such clarity. Yet each year
Kohl-Welles has faced two problems - squeamish legislators who want
nothing to do with anything related to pot and disorganized
proponents who can't agree on the details.

"Some people want perfection," Kohl-Welles said. "I need something
that can pass the Legislature." If she fails, the Tacoma truce is temporary.