STATE STILL HASHING OUT MEDICAL MARIJUANA RULES

More Than 10 Years After Voters Spoke, a Surge in Dispensaries Has
Cities and Counties Scrambling to Regulate, Fend Off DEA

Highly publicized raids last month on three medical marijuana outlets
in downtown San Mateo were the latest example of the continuing clash
between state and federal officials over medicinal cannabis.

And that clash is reverberating through communities across the state.

More than a decade after Californians voted to legalize medical
marijuana, an explosion of dispensaries and patients has cities and
counties scrambling to regulate the operations.

In San Mateo County, the Aug. 29 raids spurred county officials to
begin drafting an ordinance to regulate the clinics.

That process will likely take months, county Counsel Mike Murphy told
MediaNews earlier this month.

The raids surprised San Mateo Mayor Jack Matthews, who said he felt
uneasy that four dispensaries in the city -- the three that were
raided, and one that shut its doors after the Drug Enforcement Agency
arrived -- had "popped up, seemingly overnight," he said in an
earlier interview.

The situation was similar to one in Alameda County in 2005, when the
growth of medical cannabis dispensaries in unincorporated areas led
officials to draft a ordinance limiting the number of outlets there
to three -- down from seven that were operating in the area in 2004.

Earlier this week, the city of Livermore joined Dublin and Pleasanton
in banning medical marijuana dispensaries, saying the bad elements
that such facilities bring to the area outweigh any public benefit.
Many Contra Costa cities have banned dispensaries, including Concord,
Antioch and Pleasant Hill.

And in Los Angeles -- where the number of dispensaries soared from
just a handful to more than 200 in the past two years -- city
officials recently passed a moratorium on new clinics until they can
develop guidelines.

Hundreds of other cities up and down California have no regulations
on medical marijuana dispensaries, including at least 28 where
clinics or delivery services are operating, according to a MediaNews analysis.

Law enforcement officials say a lack of local oversight could allow
dispensaries to open near schools or parks, with no way for
authorities to prevent it.

"I think they could easily be surprised," said Modesto police Chief
Roy Wasden, who heads a statewide task force on medical marijuana.
"They're not prepared for the issues that will surround dispensaries
opening up."

According to Americans for Safe Access, a medical marijuana advocacy
group, 27 cities and eight counties in California have ordinances
allowing and regulating dispensaries.

An additional 56 cities, including Dublin, Fremont, Pleasanton and
South San Francisco, and three counties have enacted bans (which some
advocates maintain are illegal), and 80 cities and seven counties,
including Contra Costa, have imposed temporary moratoriums, according
to Americans for Safe Access.

In June 2005, Alameda County's Board of Supervisors passed a law
limiting the number of marijuana dispensaries in unincorporated areas
and establishing a selection process.

Under the law, one dispensary is allowed to operate in each of the
three zones created within the county's unincorporated areas:
Ashland, San Lorenzo and Castro Valley. The new ordinance forced a
handful of dispensaries in the county to shut down.

Each of the three dispensaries with county permits must renew the
permits every two years. The renewals are reviewed by county health
and zoning departments and approved by the Alameda County Sheriff's Office.

According to Capt. Dale Amaral of the sheriff's office, the county's
ordinance is set to be reviewed by the board of supervisors sometime
in the next several months -- something the board asked to do when it
approved the rules in 2005.

As part of the review, the sheriff's office and the county Department
of Environmental Health have proposed two significant changes to the
law -- one would allow the three licensed dispensaries in
unincorporated Alameda County to carry hashish, and the other would
outlaw those dispensaries from carrying any food made with marijuana.

The remainder of the state's 478 incorporated cities and 58 counties
have not addressed the issue.

Across California, there are at least 400 known medical marijuana
dispensaries -- and likely hundreds more that are unpublicized.

About 15,000 Californians have registered for state medical-marijuana
identification cards. Because the cards are voluntary and not
required to obtain medical marijuana, officials cannot say with
certainty how many people actually are seeking the drug.

Pro-legalization groups estimate there are 150,000 to 200,000
medical-marijuana users in California -- up from about 30,000 five years ago.

Law enforcement agencies remain concerned about the potential for
unregulated dispensaries, with their stashes of drugs and cash, to
attract crime to neighborhoods.

And some of the facilities, they say, are simply profitmaking
enterprises that sell at stiff prices to healthy youths and the
seriously ill alike.

The Los Angeles Police Department has reported an increase in crime
near some facilities and has received complaints about activities,
including one dispensary handing out fliers for free marijuana
samples to students at Grant High School in Valley Glen.

Alameda County authorities noted the same spike in crime near some
facilities in unincorporated areas.

Medical-marijuana advocates and some academic experts, however, say
such concerns are overblown.

"I think that's something that law enforcement is using as a tactic
to spread fear," said Kris Hermes, a spokesman for Americans for Safe Access.

"And to intimidate city and county officials from doing what's right
and what's just, which is to establish protections for these
facilities and, if necessary, regulate them in some sensible way."

The Reason Foundation issued a report earlier this year saying that
marijuana-related crimes have decreased since Proposition 215 --
allowing medical use of marijuana in California -- was passed by
voters in 1996.

"Common sense would say there's no reason why a well-regulated
dispensary would add to ambient crime in the neighborhood at all,"
said report author Skaidra Smith-Heisters.

The only factor that might contribute to crime, she said, "would be
the fact that they're operating without any ground rules right now."

Although the Bay Area was the first to embrace medical marijuana --
and its cities were the first to figure out how to handle
dispensaries -- the fastest growth has shifted to Los Angeles, and
especially the San Fernando Valley.

Three years ago, the city had perhaps one or two known dispensaries.
Today, there are at least 150 listed in directories maintained by
advocacy groups. City and law enforcement officials say there are as
many as 200 to 400.

About half of the city's known dispensaries are in the San Fernando
Valley, meaning a region that has about 5 percent of the state's
population has 19 percent of its medical marijuana facilities --
more, in fact, than the entire Bay Area from San Jose to Marin County.

The Los Angeles City Council recently placed a moratorium on the
opening of new facilities while it figures out how to deal with the growth.

Council members are generally sympathetic to dispensaries that are
seen as helping the seriously ill, but they want to be able to
regulate them and weed out the bad actors.

Although California voters legalized medical marijuana in 1996,
growth has occurred only recently because there had been confusion
about how the law worked. In 2003, the state enacted legislation
spelling out a series of specific regulations.

The U.S. Supreme Court in 2005 essentially confirmed the validity of
Prop. 215, but it also upheld the federal government's right to
prosecute marijuana patients under federal law.

Escalated tensions have followed those rulings.

Angel Raich of Oakland and others sued the government in October 2002
to prevent any interference with their medical marijuana use.

The Supreme Court, in a May 2001 ruling on the Oakland Cannabis
Buyers Cooperative, said there's no collective medical necessity
exception to the federal ban, which defines marijuana as having no
valid medical use.

But it didn't rule on constitutional questions underlying the medical
marijuana debate, so Raich and her lawyers tailored a case to raise
those issues.

In June 2005, the U.S. Supreme Court ruled 6-3 to uphold the federal
ban, finding that even marijuana grown in backyards for personal
medical use can affect or contribute to the illegal interstate market
for marijuana and so is within Congress' constitutional reach.

The case was remanded for review on other issues, but after a defeat
in the 9th U.S. Circuit Court of Appeals -- which ruled in March that
medical necessity doesn't shield medical-marijuana users from federal
prosecution, and medical marijuana use isn't a fundamental right
protected by the Constitution's guarantee of due process of law --
Raich dropped the case in May.

Oakland also is ground zero in another high-profile case
demonstrating the clash between state and federal law.

The self-proclaimed "Guru of Ganja" Ed Rosenthal, 62, of Oakland was
convicted in May in federal court of three felonies for growing
thousands of marijuana plants for patients.

Rosenthal, a columnist for "High Times" magazine, said he was acting
as an agent of the city in growing the cannabis for the Oakland
Cannabis buyers Cooperative.

Although Rosenthal was ultimately convicted, he received no further
sentence beyond the one day in jail he had already served. He has
vowed to appeal his conviction as a miscarriage of justice.

About nine states have laws permitting medical marijuana, according
to Rosalie Pacula, a drug policy analyst with the RAND Corp.

But California has attracted more attention from the federal
government, in part, she said, because its laws are looser than other
states', allowing patients to possess larger quantities and allowing
dispensaries to flourish.

"If you're really interested in protecting patients, keep the
quantities low," Pacula said.

Some in Congress are trying to get the DEA to back off, including
Reps. Dana Rohrabacher, R-Huntington Beach, and Maurice Hinchey,
D-N.Y., who support a bill that would block funding for prosecutions
of medical-marijuana patients.

Without such protections, businesses that believe they are operating
legitimately under California state law still keep an eye out for
federal agents and often try to maintain a low profile.

Holistic Alternative Inc., a nonprofit dispensary in Canoga Park,
opened three months ago and finds it hard to attract new patients
because it can't advertise.

Instead, it and other facilities rely on Internet advertising -- a
more discreet option than hanging a big sign out front.

David, a co-owner who asked that his last name be withheld, said he
founded the dispensary with a partner who uses marijuana for
medicinal purposes and wanted to help others.

"I would hope they would leave us alone because most of our patients
are actually really sick," he said. "Probably 90 (percent) to 95
percent of my patients are really sick and do need the medicine.

"If they don't get it from us, I can't see these older ladies and
gentlemen in their 60s and 70s walking around getting drugs off the street."

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REGULATING MEDICAL MARIJUANA

Most cities and counties with ordinances regulating medical marijuana
dispensaries have passed them within the past three years.

Most include provisions restricting the facilities to more than 1,000
feet from a school, park or other dispensary, requiring security
measures and restricting operating hours to the daytime.

Twenty-seven cities and eight counties in California have ordinances
allowing and regulating medical-marijuana facilities, according to
Americans for Safe Access, a pro-medical-marijuana group. These
include Alameda County and the cities of Albany, Berkeley, Hayward,
Martinez, Oakland, San Francisco, San Jose and Santa Cruz.

Fifty-seven cities and three counties have bans, including Stanislaus
County and the cities of Antioch, Concord, Dublin, El Cerrito,
Fairfield, Fremont, Livermore, Oakley, Pinole, Pleasant Hill,
Pleasanton, San Pablo, San Rafael, South San Francisco and Union City.

Seventy-nine cities and seven counties have temporary moratoriums,
including Contra Costa County and the cities of Antioch, Brentwood,
Manteca and Marin.

According to a listing compiled by the pro-legalization group NORML,
there are at least 49 dispensaries or delivery services in San
Francisco and the East Bay, one in Marin County and 11 in the South
Bay/San Jose area.

Oakland passed an ordinance in February 2004 restricting the number
of dispensaries in the city to four. They have to be more than 1,000
feet from a school, library, park or other dispensary, and can
operate only from 7 a.m. to 8 p.m.

Alameda County passed an ordinance in 2005 that limits to three the
number of dispensaries that can operate in unincorporated areas. They
have to be more than 1,000 feet from a school, library, park,
recreation center, drug recovery facility or other dispensary, and
they must be located in a commercial or industrial zone.

Santa Clara County passed an ordinance in 2006 that says its intent
is to provide regulation for the convenient, affordable and safe
distribution of medicinal marijuana to all patients in medical need
of marijuana. It restricts the facilities to commercial and
neighborhood-commercial zones, and it limits them to more than 1,000
feet from schools, places of worship and other dispensaries. The law
also allows on-site cultivation of medicinal marijuana, but it does
not allow on-site consumption.

San Jose passed an ordinance regulating medical marijuana
dispensaries earlier than most major cities, approving in 1998 a
series of regulations that include a ban on marijuana consumption on
site, limiting hours to 9 a.m. to 9 p.m. and prohibiting dispensaries
from delivering medical marijuana to patients.

Santa Cruz has an ordinance that prohibits dispensaries from within
600 feet of a school, public park, drug treatment facility or other
dispensary, or within any high-crime area. It prohibits the growing
and ingesting of marijuana on the premises. It restricts them to
operating from 7 a.m. to 7 p.m. weekdays or Mondays through Saturdays
in commercial areas.

Source: MediaNews research