Medical marijuana still hazy for small cities

By Reggie Ellis

Editor's note: The U.S. Supreme Court made its recent 6-3 ruling to uphold the federal ban's jurisidiction over state law just prior to press time. Next week, a look at how that decision will affect cities and laws regulating the use of medical marijuana.

It's been almost nine years since California voted to legalize the use of marijuana for medicinal purposes and, aside from large seizures of illegal operations in Sequoia National Park, the decision has had very little effect on rural Tulare County.

But last month the City of Tulare discovered that a medical marijuana information center had begun dispensing cannabis to about 50 patients. Because there were no local regulations in place, the dispensary was only limited by vague state laws. Steve Kabot, city attorney for Tulare and Exeter, recommended the Exeter City Council take action to ban dispensaries from the city.

That was until the Fresno City Council's decision to deny a dispensary in the Tower District was challenged in court. In light of the news, Kabot urged the council at its May 23 meeting to approve an ordinance temporarily barring any medical marijuana dispensary until zoning and land-use procedures can be put into place to regulate the new industry, similar to the council's ordinances regarding sexually oriented businesses approved last year.

"There hasn't been a huge public outrcy in Tulare or Visalia," Kabot said. "We will try to be proactive as we are seeing more and more of this appearing in the county."

Other small cities do not seem to be as concerned with the potential for a dispensary slipping in before regulations are in place. Woodlake City Manager Bill Lewis said the council has not discussed any regulations as of yet. He said Woodlake will probably wait to see how the courts rule in pending cases regarding bans and regulations.

"Nobody has been knocking down the doors to get that into Woodlake," Lewis said.

Lindsay City Manager Scot Townsend said the city council there has had a brief conversation about the issue but that no plans have been made. He said Lindsay may begin more serious discussions of marijuana regulations when it begins amending its General Plan for the next 20 years in July.

"No one has approached the city about coming here," Townsend said. "I'm sure we will look into it."

Farmersville City Manager Renee Miller said the city is so short-staffed that tackling that kind of ordinance is out of the question at this time. She said she doesn't feel it is a priority for the city, as no one has shown interest in opening a dispensary in Farmersville.

Marijuana Law

Fifty-six percent of voters approved Proposition 215 on Nov. 5, 1996, but Tulare County voted overwhelming (63%) against the measure. The law took effect the following day. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess a “written or oral recommendation” from their physician that he or she “would benefit from medical marijuana.” Patients diagnosed with any debilitating illness where the medical use of marijuana has been “deemed appropriate and has been recommended by a physician” are afforded legal protection under this act. Conditions typically covered by the law include but are not limited to: arthritis; cachexia; cancer; chronic pain; HIV or AIDS; epilepsy; migraine; and multiple sclerosis. No set limits regarding the amount of marijuana patients may possess and/or cultivate were provided by this act, though the California Legislature adopted guidelines in 2003.

Senate Bill 420 took effect on Jan. 1, 2004 and imposes statewide guidelines outlining how much medicinal marijuana patients may grow and possess. Under the guidelines, qualified patients and/or their primary caregivers may possess no more than eight ounces of dried marijuana and/or six mature (or 12 immature) marijuana plants. However, SB 420 allows patients to possess larger amounts of marijuana when such quantities are recommended by a physician. The legislation also allows counties and municipalities to approve and/or maintain local ordinances permitting patients to possess larger quantities of medicinal marijuana than allowed under the new state guidelines.

Senate Bill 420 also mandates the California Department of State Health Services to establish a voluntary medicinal marijuana patient registry, and issue identification cards to qualified patients. To date, however, no such registry has been established.

Senate Bill 420 also grants implied legal protection to the state’s medicinal marijuana dispensaries, stating, “Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients … who associate within the state of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions.”

Doctors cannot legally prescribe medical marijuana for fear of being stripped of their license. However, doctors can legally recommend marijuana as a therapy option. In San Francisco County, ID cards are issued by the county Health Department; no patient guidelines. Case by case consideration, generally contingent on police claims of indicia of illegal sales or diversion to non-medical market.

What To Do?

Kabot said that nearly 100 cities in California are struggling with the issue of legalized marijuana. Americans for Safe Access, an Oakland-based nonprofit group, and William McPike, an attorney, caregiver and qualified medical marijuana patient, sued the City of Fresno for what they referred to as a "ban" of state law. Under a Fresno ordinance approved Oct. 26, 2004, a dispensary cannot distribute pot to more than two people.

“It’s not a ban,” city spokesman Ken Shockley told the Los Angeles Times. “The city law is clear that, in the city of Fresno, a dispensary is limited to providing for two patients. If his position is that he cannot dispense medical marijuana in the city of Fresno, that simply is not true.”

Clovis has passed a similar ordinance and Visalia and Tulare are considering rules as well. The Northern California towns of Rocklin, San Rafael and Yuba City have banned cannabis clubs outright. Kern County District Attorney Edward Jagels announced in March that he will allow Prop 215 patients up to 49 plants and two pounds of medical marijuana, provided there are no indicia of sales. There are currently no guidelines to regulating medical marijuana use in Kings County.

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