SMOKE AND MIRRORS

The South Bay's Incoherent Medical Marijuana Ordinances Create Confusion,
Driving Some Local Activists to the Brink of Reefer Madness

JUSTIN MARIK leans back in a chair at a coffee shop across the street from
De Anza College, his legs spread wide and his blue eyes calm behind his
wire-rimmed glasses. Just last year, the 22-year-old says he turned his
life around with marijuana.

At the age of 12, he depended on Ritalin for his attention-deficit
disorder. He took Paxil and Prozac for depression during his teenage years,
and he always kept Zanax on hand for his occasional panic attacks. He
suffered migraines every week, fell behind in school and gradually crawled
into a shell while his social life disappeared.

Despite all this, Marik seems relaxed and friendly, often relating the
trauma of his formative years with a half-smile. What happened?

"Well, I've smoked pot three times today," he explains. A few joints have
now replaced his daily pharmaceutical cocktail. The graphic designer has
loosened up so much that he confidently approaches a young woman at the end
of his interview.

Marik isn't afraid to come out about his choice of medicine. Unlike many
underground patients in the South Bay, he is making his personal needs
political. He recently joined the budding political action group Area 420,
based in San Jose.

"I don't like to hide my identity," he says. "That's how they demonize us
so much. People think we're lowlifes or something because the government
wants them to."

Eight years after the passage of California's Proposition 215, which
legalized the sale of marijuana to the critically ill, the medical
marijuana scene lingers on the fringes of society. Ill repute shed on
clinical practices for writing recommendations pales in comparison to the
suspicion that clouds the drug's distribution channels. Especially for
patients in the South Bay, getting in and out of the nearest dispensary is
a much bigger ordeal than hopping in the car to the nearest Walgreen's.

Void of any prominent medical marijuana supply lines, San Jose remains more
conservative on the issue than its Bay Area neighbors. San Francisco,
Oakland and Santa Cruz are all home to cannabis dispensaries or co-ops.
Santa Cruz and San Francisco counties issue official ID cards for medical
marijuana patients, and Oakland recently passed Measure Z, which will put
private cannabis use at the bottom of the law enforcement priority list.

Now three South Bay activists are heading a burgeoning movement to break
down some of the bureaucratic walls limiting the legitimate cannabis
community locally. And a small neighboring city on the north side of Santa
Clara County may further eclipse the valley when it comes to supporting
this controversial industry.

Zoning In

It's interesting to note that San Jose became the first U.S. city to
monitor and permit medical marijuana distributors in 1997. Shortly after
state Proposition 215 passed with 56 percent of the vote, the San Jose City
Council voted on a zoning ordinance that would regulate where and how
dispensaries could operate.

In response to the section of the Health and Safety code that legalized
marijuana for medical purposes in California, local legislators stepped in
to provide specifics and added this section to the zoning code: "The intent
of this proposition was to enable persons who are in medical need of
marijuana to obtain and use it without fear of criminal prosecution. In
order for this to occur, there must be places which dispense marijuana to
those who qualify for its use in accordance with state law."

The ordinance required dispensaries to be at least 500 feet from schools,
day-care centers and churches, and at least 150 feet from residential
areas. They could not operate outside the hours of 9am to 9pm, sell
anything other than marijuana, allow smoking on the premises or admit
anyone under 18. Opening a dispensary would require meeting these
conditions as well as applying for a special-use permit so that the
planning department could make sure the facility would not have an adverse
effect on the surrounding area.

At the time the zoning ordinance was passed, Robert Niswonger was running
the San Jose Cannabis Club from his home, close to a school and a church.
Niswonger challenged the city's right to regulate his operation (claiming
freedom under Proposition 215), but the city found him guilty of violating
the new zoning laws and shut him down.

In a small office on Meridian Avenue, Peter Baez and Jesse Garcia were also
operating a medical marijuana dispensary, the Santa Clara Medical Cannabis
Center. Though the two men sided with law enforcement and even helped draft
the zoning ordinance, they soon balked at the regulations. At one point
they threatened to go on a hunger strike (one had AIDS, the other cancer)
unless San Jose changed the law that required them to grow all their
product on the premises.

In March of 1998, the San Jose Police Department forced the Cannabis Center
out of business by seizing its patient files, computers and bank account.
Baez faced felony charges, all of which were eventually dropped, for
allegedly selling pot to five people who didn't qualify under Proposition
215. The court case turned Baez into a living martyr for the medical
cannabis community, but it may have had a chilling effect on dispensaries.
Since then, no one has successfully opened one in San Jose or Santa Clara
County.

The county's cannabis history is almost as bleak. The Board of Supervisors
scrambled to put together an ordinance after San Jose released its laws,
and a local business owner, Suzie Andrews, started talking about opening a
dispensary inside her head shop, Rainbow Smoke Shop, in the Burbank
district (an unincorporated area of the county surrounded by west-central
San Jose).

But the county's ordinance mimicked that of San Jose, including the clause
that dispensaries could not sell anything other than marijuana, effectively
nixing Andrews' plan. According to Santa Clara County planner James Reilly,
the stringent location restrictions of the ordinance make it extremely
difficult for a dispensary to take root. In addition, the application
requires a use permit and site approval, which adds up to more than $8,000
in fees. Reilly says the Planning Department has not received any
applications or serious inquiries in eight years.

Betting on Mainstream

Around a table at a small cafe in San Jose, three local medical marijuana
activists discuss the difficulties that they've run into with the Santa
Clara County and San Jose governments. None of these men are going to go
away without a fight.

Meet Dennis Umphress, a gray-haired, round-bellied man whose clear, sober
voice occasionally betrays an edge of biting humor. An active member of the
Libertarian Party, freedom of choice trumps most issues for him, but as a
representative for the state advocacy group Safe Access Now, he is fighting
for more regulations in the medical marijuana field so patients can go
about their business without feeling like criminals.

Next to him is Jim Lohse, a high-strung man with ruddy cheeks who has
memorized his entire Rolodex. He speaks at a rate of 500 words per minute
and jokes with a twitch of his head, "You should see me when I'm not
stoned." Lohse is a medical marijuana patient and caregiver, which means
that he grows a crop of weed in his backyard during the summer and
distributes the harvest to needy patients who have a hard time driving to
dispensaries in the East Bay. Lohse wanted to expand his network of
patients last September, so he posted an ad on Metro's Back Page. Hence
Area 420 was born.

Chuck (who declined to give his last name) now manages Area 420, although
Lohse still runs the website (www.area420.com). The edges of Chuck's
heavy-lidded blue eyes wrinkle when he smiles, and his gentle demeanor
seems to balance Lohse's intensity. As part of his information network, he
directs callers to medical marijuana resources and is trying to bring the
local community together with monthly meetings and barbecues. The hard part
is getting medical marijuana patients to lend their public support.

"Ninety-five percent of patients don't want to be politically active,"
Chuck says. "They just want to get their medicine from a local source." He
aims to break this trend with his advocacy group.

"Some people are still very fearful," Lohse explains. "What if this all
gets overturned in a couple of years and it becomes illegal again? I have
it in my health records that I used marijuana. I'm just making a bet that
it's all going to go mainstream from here."

Dispensing With Approval

In Umphress' quest to liberate the medical cannabis scene in the South Bay,
he has found that local politicians are avoiding the hot issue. He first
contacted San Jose City Councilmember Pat Dando, and one of her staffers
told him he should go to the county. Craig Mann, Terry Gregory's former
chief of staff, told Umphress that medical marijuana wasn't on the
councilman's agenda. Councilmember Chuck Reed confirms that there is "zero
going on at the council about medical marijuana." He says it's not a city
issue, so the council doesn't want to give attention to something over
which it has "no authority or responsibility."

In fact, San Jose seems to have grown colder toward medical marijuana in
the past few years. Umphress recently discovered that the zoning ordinance
for dispensaries passed in 1997 had disappeared from the books. Calls to
the Planning Department and the city attorney's office yielded vague
assertions that the legality of dispensaries had come into question.

City Attorney Rick Doyle says the local government was waiting to see what
the courts would do, although he couldn't cite any specific cases. A dig in
the city clerk's office brought up a massive zoning code rewrite that took
effect in January 2001. A few months prior to the rewrite, public notices
were posted about the broad-sweeping change, but none mentioned the fact
that the city was going to drop this particular ordinance.

Now, opening a marijuana dispensary would require applying for a
conditional-use permit, limited to heavy industrial areas. But Joan
Hamilton, San Jose principal planner, says there is still some doubt as to
whether or not the Planning Department would be able to approve one.

"San Jose is not making a friendly atmosphere for legitimate medical
marijuana patients to get their medicine locally," Umphress says. "Legal
questionability hasn't stopped quite a few other counties."

According to the California NORML website (www.canorml.org), there are
approximately 120 dispensaries, delivery services and co-ops throughout the
state where patients can obtain medical marijuana. A few of these delivery
services, based out of town, serve the San Jose area.

"It comes down to: do you want to help ease the suffering of people or do
you want to ignore the problem and pretend it's going to go away?" Umphress
adds.

It sounds like San Jose is doing the latter. "There is no need to have
regulations in the zoning code because our feeling is that there aren't
going to be any dispensaries requested," Doyle explains. Then might the
lack of zoning and dubious permit approval discourage prospective
dispensary owners? "That's certainly not the case," the city attorney
responds firmly.

But there's more to this official version. Daniel Halpern, a San Jose
attorney, says he is working with a group of three people who want to open
a dispensary in the South Bay. The process is still in the beginning stages
so the individuals involved have declined to give their names, but Halpern
says when they started looking for a location, they were "completely
discouraged" by the city's position. "San Jose is extremely against
dispensaries," the attorney says. "We were trying to stay away from a fight
with the city ... because I know that they would probably win and bury my
clients financially."

The party recently found a spot in the Burbank district and has begun to
seek the county's approval.

About a year ago, Lohse considered opening a dispensary but decided there
were too many hurdles in terms of overhead costs, time commitment and
security. "It's not a very glamorous business," he explains. "People whine
all day and try to show you fake ID cards, and then you take the risk of
selling it illegally."

Lohse prefers his small caregiver group, where he can verify everyone's
doctor's notes personally. He says he is toying with the idea of opening a
co-op so other people can help him grow the weed. The pot advocate is
trying to stay on the good side of law enforcement; he says he invited the
sheriff's office to check out his grow operation in Santa Clara, but they
never took him up on the offer.

The problem is, there aren't enough small groups like Lohse's to meet the
needs of local patients. Considering the obstacles a private party would
have to tackle in order to open and run a dispensary, Chuck of Area 420
suggests a possible solution: let the county do it. He has launched a
petition to request that the Board of Supervisors establish a medical
cannabis taskforce to look into the possibility of distributing marijuana
through the county hospital system. So far, Chuck has collected about 500
signatures and plans to present his petition at a BOS meeting in early
January or in February.

Lohse thinks this request is a far stretch from what the county might agree
to, but Chuck remains a bit more idealistic. "I'd like to have a big field
out there growing it, but I don't think they'd ever go for that," he laughs.

Racing the Run-Around

In early 2004, Kevin Thibault ventured into Mountain View looking for a
location to start up a medical cannabis dispensary. He currently runs a
small co-op in Felton, where he provides for about 25 clients, and saw the
need for another source in the South Bay. His exasperating journey shows
how marijuana-related establishments fizzle without the backing of firm
local guidelines.

Thibault says he first approached the Mountain View Planning Department and
said he wanted to open a dispensary. The woman he spoke to was a bit "taken
aback," he recalls, and said she needed to speak with the district
attorney. The next day he returned and she gave him the go-ahead to find a
site.

He came up with a 400-square-foot space in medical zoning on El Camino Real
and returned to the Planning Department to get approval. Over the course of
a month, he ran into the pitfalls of a system that wasn't prepared for him.
He contacted the city repeatedly and got the run-around instead of a
straight answer.

Because of the delay, he lost the first location. By that summer, he found
another site, also on El Camino Real. He gave a $3,000 down payment and
managed to avoid signing a lease until he knew things would be stable. This
time, he got a lot closer to his goal.

After badgering the Planning Department again, he was finally told that his
operation was good to go and all he needed to do was get a business
license. The day before he opened up shop on Sept. 1, he notified the
Mountain View Police Department of his intentions. He left copies of his
business license and his medical marijuana ID card. He didn't hear anything
until three days later.

After two days of business, two plainclothes officers knocked on the door
of his dispensary. He openly showed them his operation. They stayed for
about 15 minutes and were very nice, he says. But the blow came when they
told him he was too close to a school and requested that he shut down.

"I said, 'Fine, I'm closed this afternoon.' I don't want to do this without
having the police on my side," Thibault says. As cooperative as he was, the
dispensary owner says he could have been spared a lot of trouble if the
Planning Department had warned him about this factor ahead of time.

But Thibault hasn't given up. He is still searching for a location that
"makes everybody happy." Al Savay of Mountain View planning says his
department is working very closely with Thibault to develop regulations for
dispensaries. "This is really a new issue for us," he says.

Savay says he is collaborating with the Police Department and the city
attorney's office to discuss guidelines for the new land use and how to fit
dispensaries into the local community. The planner commends Thibault's
patience. Now Thibault is just crossing his fingers for the chance to
realize the spirit of Proposition 215. He points out: "What's the point of
voting in a law if there's no way to implement it?"