420 Magazine Background

The Pot Haze


New Member
Faced with conflicting state, federal laws, local officials struggle with medical marijuana issue.

Ten years after state voters approved the use of medical marijuana, Sonoma County's courts, law enforcement, politicians - and patients - are still struggling to make the law work in the face of unyielding federal policy that considers any use of the drug illegal.

That conflict is playing out this month in two Sonoma County courtrooms, in the Sebastopol council chambers and in the daily lives of 375 holders of state-issued medical marijuana ID cards who face huge fee increases.

The courts are dealing with law enforcement authorities who are refusing to return medical marijuana because they say they are bound by federal law.

At the same time, Sebastopol, following the lead of Santa Rosa and county government, is trying to set rules for setting up medical pot dispensaries in the city.

The result is a dizzying array of costly policies and regulations intended to both regulate marijuana use and help and protect medical marijuana users.

"It's a big mess," said Sonoma County Sheriff Bill Cogbill. "I'm really worried about how this is all going to play out. Unless something is done to clarify the law in this regard, we're going to see the proliferation of marijuana in society."

Berta Bollinger, 54, an active member and patient of the Caregiver Compassion Center in Santa Rosa, said advocates are working hard to get the federal government to recognize medicinal uses for marijuana.

"It's not going to happen in this administration," said Bollinger, who has a doctor's recommendation to use medical marijuana to treat her depression, panic disorder and pain and fatigue symptoms. "It's a slow process but we're getting there."

The proposed ordinance that goes before the Sebastopol City Council on Tuesday would require a public permit process handled through the city's Planning Department. Cotati also is considering an ordinance to regulate dispensaries within city limits.

Sebastopol and Cotati are moving forward after a period of several years in which cities countywide put a halt to the unregulated cannabis clubs that began appearing after the passage of Proposition 215, the Compassionate Use Act of 1996.
Local officials on their own

Since the act does not address the issue of how or where people are supposed to get their medical marijuana, local officials are on their own designing local regulations.

"It's been a struggle. This was just so unclear in state law," said Jane Riley, a planner with the Sonoma County Permit Resource and Planning Department. "With things like granny units, state law is very specific."

Sonoma County gave preliminary approval three weeks ago to an ordinance allowing for dispensaries to be set up in urban areas of the unincorporated county. The ordinance, which goes before supervisors March 20 for final approval, would require dispensaries to obtain a use permit to operate.

The final language in the ordinance is currently being fine-tuned, but supervisors have said they do not want on-site consumption and that operations should be restricted to beyond 1,000 feet of a school ground.

Under the proposed Sebastopol ordinance, only one dispensary would be permitted during the first year the ordinance is enacted. Another would be allowed in the second year. The number of dispensaries would be capped at two.

"We are putting it through the standard public hearing process," said Kenyon Webster, a city planner in Sebastopol. "We see this as a sensitive land use that needs careful review."

Webster cited potential adverse effects, such as parking and traffic problems as well as the potential for criminal activity.

Criminal activity is the element that upsets neighbors and the reason cities struggle to find locations.

In November, two men carrying guns and wearing ski masks forced their way into a Sebastopol home, bound the couple living there and left with marijuana plants intended for medical use.

In April, a 31-year-old Santa Rosa man was shot and killed in his Wheeler Street home. Police believe the shooter was there to take the victim's marijuana, kept for medical reasons.

Such examples have cities throughout the county moving carefully as they try to determine just where to allow marijuana to be sold.

"There are significant legal issues between what the voters of California envision and the federal government," said Webster.

Unlike under the county ordinance, on-site consumption would be allowed in Sebastopol.

Legal experts say that inconsistencies such as these are a direct result of a lack of direction from the state.

Santa Rosa City Attorney Brien Farrell said it's taken many years to make sense of Proposition 215 and SB 420, subsequent state legislation that created a voluntary medical marijuana ID program that was supposed to clear up ambiguities in the original proposition.

Law still 'getting worked out'

"There's a clear desire for consistency and clarity and an interpretation of what rules apply," Farrell said. "What is the law in California? That is still getting worked out these many years later."

Santa Rosa got its medical marijuana ordinance in November 2005, just seven months after adopting a ban to gain control of unregulated dispensaries, including one on Sonoma Avenue near Juilliard Park.

Nowhere has the conflict between federal and state marijuana laws become more evident than in the county courtrooms, where some law enforcement officials are refusing to return confiscated medical marijuana.

On Thursday, Deputy Sonoma County Counsel Anne Keck, representing the Sheriff's Department, was handed a setback in her effort to avoid returning 25 pounds of marijuana taken from the home of an employee of Marvin's Garden, a medical marijuana cooperative in Guerneville.

Superior Court Judge Raima Ballinger rejected Keck's request for lengthy civil discovery that would allow the Sheriff's Department to verify the legitimacy of Marvin's Garden, as well as the employee, Kenneth Wilson.

"We don't think that returning this property is legal," said Keck, adding that it was not clear if the marijuana was being held by "a lawful person."

Judge cites court's role

Ballinger made it clear to Keck that it was up to the court to decide whether the marijuana should be returned and that the job of the Sheriff's Department was to act as custodian of the confiscated property.

In a similar case, Judge Lawrence Antolini has ordered the Santa Rosa Police Department to return 18 pounds of medical marijuana to Shashon Jenkins, 26.

Jenkins was arrested in October but the District Attorney's Office decided not to file charges after Jenkins provided evidence that he was a medical marijuana user and a provider for other patients.

In both cases, law enforcement officials argue that returning the marijuana would put them in jeopardy of violating federal laws that make marijuana illegal, regardless of whether it is being used for medicinal purposes.

But William Panzer, an Oakland-based attorney who co-wrote Proposition 215, said that argument is a smoke screen. Panzer, who represents Marvin's Garden, said it's a question of jurisdiction.

"If you're in federal court, federal law applies. If you're in state court, state law applies," said Panzer. "Law enforcement doesn't like (Proposition 215) and they don't want to follow it."

Lack of federal clarity

Sheriff Cogbill said it's not that simple. He wants more clarification from both the Supreme Court and Congress.

Cogbill said the 2005 U.S. Supreme Court ruling that said medical use of marijuana was still illegal under existing federal laws fell short of declaring such laws as Proposition 215 illegal.

"What it does is put law enforcement and criminal justice in a quandary," Cogbill said. "If it has a medical use, then the federal government needs to recognize that and schedule it as one of those drugs that has a medical purpose."

The quasi-legitimacy of marijuana use has led to a lack of oversight and regulation of its use as a medicine, Cogbill said.

"If we don't have tighter controls on it, it's going to get out of hand," said Cogbill. "Those cannabis clubs have to get their pot from someplace. Are we now allowing organized crime to have a foothold in our community?"

The challenges are significant, but they are the natural result of trying to resolve the law and community needs, said one medical marijuana provider.

John Sugg of the Caregiver Compassion Center in Santa Rosa said city and county ordinances regulating marijuana dispensaries are a sign that marijuana laws are being taken seriously.

"Sure, it's been 10 years since the law passed, but the (Santa Rosa) ordinance demonstrates that the whole thing is maturing," he said.

Copyright: 2007 The Press Democrat
Website: http://www1.pressdemocrat.com/
Top Bottom