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Autumn 2005
O'Shaughnessy's
Journal of the California Cannabis Research Medical Group

Local Responses to Dispensaries Vary From Outright Bans to Regulation

By Dale Gieringer


"PROXIMITY MAP" shows areas of San Francisco that would be off limits if medical cannabis dispensaries could not locate within 1,000 feet of playgrounds or schools, or within 500 feet of substance-abuse facilities.

In the past year, the number of cannabis providers listed on the Cal NORML website more than doubled to over 150. Dispensaries, co-ops and delivery services opened in many previously underserved parts of the state, including Sacramento, San Diego, Los Angeles, Bakersfield, and the Central Valley. But local governments are enacting ordinances clamping down on the providers. A few jurisdictions have excluded them entirely on the theory that they are illegal under the Supreme Court’s Raich decision. Many others have sought to limit them out of concern that they attract an undesirable clientele. Others have imposed restrictions in response to specific neighborhood nuisance complaints.

As of early October there were at least 56 localities with moratoriums on medical cannabis dispensaries and 13 with outright bans, according to Americans for Safe Access (ASA). Nineteen jurisdictions had enacted regulations under which dispensaries were operating.

This Spring ASA filed a civil lawsuit against Fresno, one of the first cities to ban dispensaries, arguing that state law (SB420) acknowledges “dispensing collectives.” In early October ASA filed similar suits against Concord, Pasadena, and Susanville.

Such cannabis-friendly communities as San Francisco, Sonoma and Alameda counties have witnessed a growing number of nuisance complaints aimed at dispensaries by disgruntled neighbors. Complaints have included parking and loitering problems, public smoking, disorderly conduct, redistribution of pot, and a conspicuous predominance of apparently able-bodied, young male (ABYM) clients. Although the complaints have focused on a small number of clubs, critics have proposed sweeping measures to sharply restrict all of them, including limiting the number of facilities, banning on-site consumption, and stringent licensing and zoning requirements.

Oakland Started Trend
Advocates are trying to avoid a repeat of their experience in Oakland, where a hostile city council enacted the first ordinance to license and regulate dispensaries. The Oakland ordinance limited the city to just four dispensaries, closing most of the clubs in the previously thriving “Oaksterdam” district and causing an exodus of business to outlying localities, which have responded with crackdowns of their own. In addition to exacting a hefty licensing fee on dispensaries, the Oakland ordinance prohibited on-site consumption and required that dispensaries be at least 1,000 feet distant from each other and from the nearest school, park, library or youth center. Although cannabis supporters in Oakland struck back with a victorious ballot initiative, Measure Z, calling for taxed and regulated sales of cannabis for general adult use, they have so far failed to get the City Council to roll back the ordinance on dispensaries.

San Francisco
San Francisco has become the center stage of the debate over dispensary regulation. The city has an estimated 40 facilities, more than anywhere else in the Western hemisphere. Until this year, they operated virtually free of regulations or problems.

Controversy erupted in March when it was reported that a new club was opening in a residential hotel used to house homeless people under Mayor Gavin Newsom’s “Care Not Cash” program. The San Francisco Chronicle editorialized that it was inappropriate to locate a pot club in a facility housing people with substance abuse problems. The Chron-icle also revealed that a new club on Divisadero was being run by an ex-felon who had done time for selling cocaine. (The fact that medical marijuana is frequently used as a harm reduction substitute for alcohol and other drugs of abuse was ignored in the public debate.) Newsom called for “common sense and grounding as it relates to the proliferation of these clubs in San Francisco.”

The prospect of a moratorium on new clubs led to several hurried openings, which in turn led to complaints by residents in the Excelsior, Dogpatch and other districts. Neighbors escalated their complaints about two facilities serving large clienteles: MendoHealing Alternatives on Lafayette St. and the Green Cross on 22nd near Guerrero.

On March 29th the Board of Supervisors unanimously passed a measure by Ross Mirkarimi imposing a moratorium on new clubs pending enactment of a permanent ordinance. Mirkarimi stated that the move was not intended to limit patients’ access, and that it might even prove useful in staving off federal raids. Three supervisors have submitted legislation for a permanent ordinance: Mirkarimi, whose proposal is favored by most patient advocates, plus Sup. Sean Elsbernd and Gerardo Sandoval, who have proposed more restrictive measures.

Drug-policy reform groups, including California NORML, ASA, and the Drug Policy Alliance support regulation as a necessary step towards legitimization. At issue are the rules themselves. Among the most contentious issues is whether to limit the number of dispensaries in the city.

Elsbernd initially proposed a city-wide limit of just eight dispensaries, a proposal that was commended by the S.F. Chronicle. Medical marijuana advocates objected that 40 clubs is hardly too many in a city with 715 liquor stores and over 3,400 licensed alcohol outlets. Elsbernd withdrew his proposal and instead proposed a one-year moratorium at current levels, with a study to determine the proper number of facilities after that.

Marijuana advocates are opposed to any numerical limit on dispensaries. They argue that market forces, not politicians, should determine the number of clubs, and that any artificial limit will invite monopoly and corruption and adversely impact patients’ interests. Moreover, if the intention of the DEA is to move against large-scale distributors, as stated, city policy should encourage small-scale distribution.

A poll of San Francisco voters conducted by Evans-McDonough —sponsored by California NORML— showed that most San Franciscans do not view the dispensaries as a problem and favor a liberal policy on marijuana. The poll found that 60% oppose making it more difficult to get medical marijuana in the city, while up to 63% support outright adult-use legalization. It’s online at:
http://www.canorml.org/news/SF%20Poll%20Release.htm.

Patient advocates scored important gains from the city Planning Commission at public hearings on the Mirkarimi bill. The bill, which has emerged as the leading proposal before the Board, would require dispensaries to apply for permits from the Public Health and Planning and Building Departments. The application fee would be $7,396. Neighbors within 300 feet would be notified to participate in the planning review. Facilities would have to be located at least 500 feet from schools, or 1,000 feet if they allow smoking on the premises. Most existing facilities can abide by the 500-foot rule, but the 1,000-foot rule would exclude all but a few pockets of the city.

In an important victory for patient advocates, the Planning Commission unanimously rejected an “anti-clustering” amendment backed by Sandoval and Elsbernd, which would prohibit dispensaries from operating within 1,000 feet of each other. It also rejected proposed proximity restrictions from community clubhouses and cultural centers.

Attorney Patrick Goggin wants to see “a provision for a hearing before the Planning Commission on a permit application,” in whatever legislation the Supervisors pass. “Absent such an amendment,” he says, “land use decisions will be made in a vacuum, violating due process and democratic principles.”

Mirkarimi’s bill was approved by the Supervisors’ Budget and Finance Committee on Oct. 6. The committee rejected proposals by Elsbernd to expand the 500-foot buffer zone around schools to 1,000 feet and to impose a 1,000-foot “anti-clustering” provision. At Mirkarimi’s suggestion, it also dropped a 500-foot proximity restriciton from drug-treatment centers, which would have forced a number of existing facilities to relocate.

Mirkarimi agreed to amendments making it tougher for facilities to locate in Elsbernd’s and Sandoval’s districts by requiring conditional-use permits.

The committee hearings attracted about 100 supporters of the dispensaries and about half as many opponents, many of whom lived near the Green Cross. At Sup. Bevan Dufty’s urging, the com-mitee considered regulations that would exclude Green Cross from the neighborhood, while allowing a more modest nearby facility, the Love Shack, to operate.

Sticking Points
Mirkarimi’s bill is expected to be heard by the full Board of supervisors on Oct. 18. While patient advocates are generally supportive, there remain certain problems they are working to iron out.

They were particularly upset that the original language, as drafted by the City Attorney’s office, made no accommodation for private patient cultivation collectives. Instead, it defined any group of four or more patients who distribute medicine among themselves as “dispensaries.”

The result would be to subject small, private collective gardens to the same expensive licensing and zoning requirements as storefront retail establishments. Advocates complained that this would violate the mandate of state law SB 420, which specifically encourages patient cultivation collectives. Mirkarimi responded by changing the threshold for dispensaries from four to 10 patients, but advocates argue that this doesn’t solve the problem, since some collectives are larger.

Another sticking point in the Mirkarimi bill is the ban on on-site smoking within 1,000 feet of schools. This restriction was inserted at the insistence of the City Attorney, who claims that state law SB 420 prohibits smoking of marijuana within 1,000 feet of schools. However, knowledgeable attorneys from the task force that wrote SB 420 insist that this is erroneous, and that rather than forbid smoking, SB 420 simply does not “authorize” it. The Evans-McDonough poll found that fully 75% of San Franciscans support on-site smoking at the dispensaries given proper ventilation. In any case, Mirkarimi argues that his bill doesn’t restrict on-site vaporization or other forms of consumption.

The Mirkarimi bill would also establish new SB 420 cultivation guidelines in San Francisco. The original draft would have set new limits of 24 immature or 12 flowering plants and 1 pound of marijuana per patient, twice the current state default limit. At the urging of patient advocates, Mirkarimi is considering an amendment to raise the limit to the old Sonoma guidelines of 100 square feet of growing area and three pounds per patient.

While advocates are happy about their success so far in moving the city toward more liberal legislation, they are still worried that recalcitrant Supervisors could saddle the bill with unreasonable and burdensome amendments.

Restrictive Options
Medical marijuana supporters are crossing their fingers that San Francisco will not recapitulate the example of other communities which have drastically cut back on the number of clubs.

In Alameda County, the Board of Supervisors approved an ordinance slashing the number of dispensaries in the unincorporated part of the county from eight to three. The ordinance was aimed at a cluster of clubs in the Ashland-Cherryland district south of Oakland, where several new facilities sprouted up in response to Oakland’s crackdown last year. Although most had been operating quietly and discreetly, neighbors began to take notice when crowds of customers started showing up at the Health Center on 14th St. Neighbors complained about disorderly, out-of-town customers loitering, acting insolent, urinating in public, and redistributing marijuana to their friends. Other clubs in the area were hit by armed robberies.

The Board of Supervisors held hearings last spring at which residents conceded the need for some medical marijuana dispensaries, but took issue with their heavy local concentration. “When I voted for Prop. 215, I never dreamed it meant all of these clubs would open near my home,” cried one exasperated resident.

Alameda County Sheriff Charles Plummer threatened to call in the DEA and shut down all of the clubs unless the Board acted promptly to regulate them. Parents demanded that clubs be kept at least 1,000 feet from schools, saying they were a bad influence. A few complained that local teens were robbing patients on the street and stealing from their parents’ stashes. (No one alleged that clubs were illegally selling to children.)

Patient advocates objected that the 1,000 foot school buffer zone would force the closure of some exemplary clubs, one of which was 900 feet from a school (to which liquor stores and strip joints were even closer). The Supervisors accommodated by allowing a 15% variance on the 1,000-foot limit.

Advocates fought hard to prevent the county from banning on-site consumption as proposed in the original draft of the ordinance. They argued that would only relegate patients to smoking in the streets and cars. As an alternative to smoking, California NORML proposed that the county allow on-site use of cannabis vaporizers, which avoid the health and air pollution problems of smoked marijuana. Studies have consistently shown that marijuana is a lesser accident hazard than alcohol, on-site use of which is widely condoned. The board agreed to let dispensaries offer on-site vaporization, provided they obtain written approval from the county health department.

Marijuana advocates failed to head off an amendment reducing the total number of dispensaries allowed in the unincorporated areas to three. (Sup. Nate Miley had proposed a limit of five.) The Board voted to allocate licenses one apiece to each of three districts: San Lorenzo, Castro Valley, and Ashland-Cherryland (which had a cluster of five). Dispensaries are required to have separate bathrooms for men and women, situate their premises so that distribution isn’t visible from the street, and shut down for the hour during which students are walking home from nearby schools. The ordinance is to be supervised by the sheriff’s department in cooperation with the department of health. Sheriff Plummer voiced support for the ordinance. “We have a golden opportunity in this county to set an example for the rest of this state with this ordinance,” he said. “If we do this right, no one has to worry about the federal government moving into Alameda County. They know us, they trust me.”

Santa Rosa
More stringent regulations have been proposed in Santa Rosa, where the public mood turned ugly on account of one particular dispensary, Resource Green, located in a residential neighborhood across from a park known for drug activity.

Neighbors complained that the club was frequented by “healthy 20-something customers” who were clogging the streets, smoking in public, playing loud music, urinating in the bushes, and reselling pot to others outside.

The Santa Rosa city council responded with a draconian draft ordinance that would cut the number of clubs in the city from three to two, limit them to 500 customers per month, forbid sales of paraphernalia or anything other than marijuana, sharply limit hours, prohibit on-site consumption, and impose strict location and licensing requirements.

Patient advocates, led by the Sonoma Alliance for Medical Marijuana, doggedly fought to keep even more stringent measures out of the ordinances, including a proposed ban on medical marijuana consumption anywhere on city sidewalks, streets or property.

Under pressure from SAMM, the proposed ordinance was amended to allow on-site vaporization and sale of medical cannabis consumption aids. However, the limit of two clubs with 500 customers per month remains in place. Advocates are hopeful that the restrictions will be liberalized following a six-month review period. The ordinance was barely approved by a 3-2 vote in late September. Dissenting councilmen said they preferred an all-out ban.

The Santa Rosa controversy spilled over to Sonoma County after a new club announced its intent to open just outside the Santa Rosa city limits. In response, Sonoma Supervisors proposed a moratorium of their own. The County also moved to cut back on its Prop 215 cultivation limits, allowing just 25 instead of 100 plants in a 100 square-foot area. Sonoma patients are hoping for a friendlier reception in Sebastopol, which is considering an ordinance intended to pave the way for a model local dispensary.

Public officials have been especially offended by the high proportion of “able-bodied young males” frequenting the clubs. Medical marijuana advocates respond that many seriously ill patients suffer invisible illnesses, such as HIV, migraines, etc. However, a growing number of users are obtaining recommendations for complaints of anxiety, stress, insomnia, depression, attention deficit disorder, or substance abuse without any record of prior medical treatment. Recommendations can be easily obtained in a few minutes from a growing number of commercial clinics and referral services which advertise to the public. “It’s common knowledge that anyone who wants a recommendation can get one,’ says one savvy expert on teen drug use, “The kids all know about it.”

The situation has also been publicized in media exposes. Fox TV News and KTVU (Oakland) sent in reporters to show how easy it is obtain marijuana using dubious medical claims. Complaining of a knee injury, a KTVU reporter visited the MediCann clinic in Oakland, filled out a five-page form, paid $100, and walked out with a recommendation after a three-minute interview in which the doctor never examined his knee. Proclaiming that getting marijuana was “easier than going to the Safeway,” the news team went on to buy $200 in pot from a delivery service at a rendezvous in Belmont.

Some proponents defend the liberal dispensation of medical cannabis, arguing that many seemingly healthy ABYMs are self-medicating for valid psychological reasons. One advocate of this view is Tom O’Connell, MD, who has published findings in this paper (See “Cannabis Use in Adolescence: Self-Medication for Anxiety,” Winter/Spring 2005). Based on interviews with 3,000 patients, predominately under-40 males, O’Con-nell reports that virtually all his patients have a history of youthful psychological and drug-abuse problems. Typical symptoms include anxiety, depression, attention deficit disorder (ADD), dysfunctional relationships with their fathers, and early involvement with alcohol, tobacco and other drugs. O’Connell contends that this population uses marijuana to alleviate bona fide emotional problems.

Critics charge that there is no published evidence that marijuana is actually beneficial for such patients, and that O’Connell is just rationalizing non-medical, recreational use or abuse. Some attorneys warn that courts and juries are unlikely to accept recommendations for dubious complaints unless patients have a solid record of ongoing treatment for a serious medical problem. “It is not a viable alternative to [claim] that all of the 20-somethings hanging out, openly re-distributing on the street, publicly urinating, etc. are actually valid patients,” warns NORML defense attorney Bill Panzer.

Self-Policing Advocated
A growing number of patient advocates are calling for improved self-regulation by medical cannabis providers in order to ward off stronger measures. “People who really need medical marijuana are being inconvenienced by the few who are misusing it as an excuse,” says patient advocate Jane Weirick, president of the Medical Cannabis Association, a trade association dedicated to setting standards for medical cannabis providers. In order to curb abuses, Weirick recommends prohibiting public advertising, adopting strict odor control measures, ending cross referrals between dispensaries and physicians’ clinics, and offering discounts on smaller as opposed to larger purchases in order to discourage re-distribution.

In Southern California, West Hollywood has enacted interim guidelines on medical cannabis dispensaries. Blessed by a sympathetic city government and sheriff’s department, West Hollywood has blossomed into a major center for medical cannabis patients in the LA area, with seven facilities currently operating along Santa Monica and Sunset boulevards.

The city enacted a moratorium on new facilities in order to address growing pains that had accompanied their rapid expansion. Three have suffered robberies, while two were raided by police and forced to close down or relocate due to operational problems.

The West Hollywood guidelines require facilities to have licensed, unarmed security guards; prohibit on-site consumption of cannabis, alcohol, tobacco or food; prohibit on-site issuance of physician’s recommendations; limit hours to 10 am to 8 pm Monday through Saturday and noon to 7 pm Sunday; prohibit dispensaries from keeping more than $200 cash on hand overnight; and extend the present moratorium on new facilities.

LA county supervisors also adopted a moratorium on dispensaries in the unincorporated parts of the county. The city of Los Angeles, where there are only a couple of dispensaries, has yet to act.

The backlash against medical marijuana has taken a different form in Ukiah, the heart of marijuana-friendly Mendocino County, where some residents have complained about the widespread smell of marijuana gardens. In reaction, the city council passed a temporary emergency ordinance banning open-air gardens altogether. In addition to requiring that all marijuana be grown in enclosed, locked structures, the council lowered the number of plants that can be grown to six from 25, the normal Mendocino limit.

Patient advocates argue that the ordinance is overly broad and should be targeted only at larger gardens that actually pose a nuisance. “We’re punishing the people of our city who have legitimate medical marijuana diseases,” said Dane Wilkins, director of Northern California NORML. Patient advocates are fighting to modify or repeal the most objectionable features of the ordinance.

In more conservative parts of the state, cities have acted pre-emptively to prevent new clubs from opening. Dozens of cities have reacted to inquiries by potential dispensary operators by passing bans or moratoriums, among them Fresno, San Luis Obispo, Ontario, Simi Valley and Yuba City. The Fresno ordinance is particularly broad, in that it forbids any caregiver from serving three patients or more. Americans for Safe Access and attorney Bill McPike filed a lawsuit against Fresno in late April, arguing that state law SB 420 specifically encourages non-profit collective or cooperative patient gardens.

Propaganda Campaign
Hostile law-enforcement officials have stirred up a propaganda campaign against dispensaries. In July 2004 Police Chief Mark Siemens of Rocklin, a conservative central valley town that has banned dispensaries, circulated a report to other cities about problems associated with dispensaries The report cites interviews with police chiefs from Oakland, Hayward, Fairfax, Roseville and Lake County, who complain that dispensaries attract criminals, robberies, smoking in the streets, and resale of marijuana. Some of the alleged wrongdoing is actually legal activity, such as distribution of baked goods and hashish.

Other evaluations have been more favorable. In an April, 2005 review of Oakland’s dispensary ordinance, the city administrator concluded, “during their first seven months of operation, the permitted dispensaries have shown that, in general, they can function without creating a nuisance in the neighborhood or draining police resources.”

City officials in Hayward and Fairfax have also expressed satisfaction about the operation of local dispensaries.

The legal status of medical marijuana dispensaries remains murky. Nothing in state law directly legalizes retail sales of medical marijuana. However, state law SB 420 specifically authorizes non-profit patient cultivation “cooperatives” or “collectives.” Many cities have interpreted this to mean that they must allow dispensaries of some kind, but the exact requirements are unclear.

In response to the Supreme Court’s Raich decision a number of communities have backed away from permitting dispensaries, although that case had no direct bearing on their legal status under federal law. Attorneys agree that further litigation in state courts will be needed to clarify the legality of cannabis dispensaries under California law. In the meantime, new ordinances will continue to proliferate just like the dispensaries themselves.


Artwork courtesy of John E. Denney


O'Shaughnessy's
O'Shaughnessy's is the journal of the CCRMG/SCC. Our primary goals are the same as the stated goals of any reputable scientific publication: to bring out findings that are accurate, duplicable, and useful to the community at large. But in order to do this, we have to pursue parallel goals such as removing the impediments to clinical research created by Prohibition, and educating our colleagues, co-workers and patients as we educate ourselves about the medical uses of cannabis.
 
SCC
The Society of Cannabis Clinicians (SCC) was formed in the Autumn of 2004 by the member physicians of CCRMG to aid in the promulgation of voluntary standards for clinicians engaged in the recommendation and approval of cannabis under California law (HSC §11362.5).

As the collaborative effort continues to move closer to issueing guidelines, this site serves as a public venue for airing and discussing these guidelines.

Visit the SCC Site for more information.