By Phillip Smith
California medical marijuana dispensaries — and their patients — are under a sustained, two-pronged attack, and that is having a dramatic impact on patient access across the state. Under pressure from the federal government on one hand and newly-emboldened local officials on the other, dispensary numbers are shrinking and ever larger swathes of the state that legalized medical marijuana nearly 17 years ago are without anywhere to get medical marijuana.
Anyone who is following the situation in the Golden State at all closely has seen a numbing litany of reports of dispensaries forced out of business, including from some of the most venerable, respected, and law-abiding operations in the state. What had been the occasional raid or prosecution by the DEA or federal prosecutors during the early years of the Obama administration has turned into a heightened onslaught since the issuance of the notorious Cole memo, written by Assistant Attorney General James Cole, two years ago next week and the announcement by California’s four US Attorneys that fall that they were declaring open season on dispensaries.
And while recalcitrant city and county law enforcement and elected officials had managed to make access to medical marijuana a patchwork affair across the state through moratoria and bans, pressure from local officials has only escalated since the state Supreme Court’s decision in City of Riverside v. Inland Empire Patients Health and Wellness Center early last month. In that case, the court ruled unanimously that localities could indeed use their zoning powers to ban dispensaries, not just regulate them. Since that ruling, localities that had hesitated to impose or enforce existing bans have responded with alacrity.
Reading the writing on the wall, Inland Empire closed its doors the day after the ruling. In other places, officials weren’t waiting for dispensaries to shut down — they were ordering them to. In May, Stockton took its first steps toward a dispensary ban, San Bernardino bragged that it had shut down 18 dispensaries and was working to close the remaining 15, Palm Springs was working to shut down five, a Thousand Palms dispensary closed its doors with the owner saying he didn’t want Riverside County deputies to do it for him, Garden Grove ordered all 62 dispensaries there to shut down or face prosecution (and reported days later that they had), Los Angeles voted to shrink its number of dispensaries from 500 or more to 135, and Anaheim ordered its last 11 dispensaries (down from 143 in 2007) to close.
The big chill continued this month, with Bakersfield moving to ban dispensaries, Riverside County threatening to arrest the owner of one of its three remaining dispensaries (down from 77 in 2009) until he closed his doors, and Santa Ana reporting it had shut down 42 dispensaries (bringing the total closed there to 109) and was siccing the DEA on the remaining 17.
“We think the Inland Empire decision just maintains the status quo — more than 200 local governments had banned distribution outright in their jurisdictions — but now, you’re seeing local government wielding a bigger stick to shut down dispensaries operating in defiance of existing bans,” said Kris Hermes, communications director for Americans for Safe Access (ASA).”Anaheim, San Bernardino, Long Beach, Riverside, mostly in Southern California, where dispensaries were flouting those bans, they are now being forced to shut down.”
“Cities that weren’t moving forward are now,” said Lanny Swerdlow, founder of Inland Empire and member of the Patient Advocacy Network. “A number of cities in Riverside have been closing collectives real fast, with San Bernardino being the most aggressive at the present time. Palm Springs is the only city in the Inland Empire that actually has zoning for collectives, and they have three operating there. The county is moving more slowly — most collectives have not even been served notices yet — but it’s just a matter of time,” he predicted.
Meanwhile, according to ASA, federal prosecutors have sent out more than 600 “threat letters” since their offensive began, including 103 sent to Los Angeles dispensaries earlier this month. The letters warn either dispensary operators or landlords or both with asset forfeiture and/or criminal prosecution, with the threat of lengthy federal prison sentences hanging over their heads. Not surprisingly, they have been quite effective.
“Before the 103 letters sent out this month, we estimated that about 500 letters had been sent out and about as many closures had occurred as a result of the US Attorneys’ efforts to threaten dispensary operators and landlords, said Hermes. “With the combined momentum of the federal attacks and the state Supreme Court decision, I think we’ve seen more than 700 dispensaries shut down over the past couple of years.”
Some of the iconic operations that helped define the dispensary movement are gone, such as the Marin Alliance for Medical Marijuana, scared out of business by federal threats, or Richard Lee’s Coffee Shop Blue Sky, shuttered by DEA raiders. Others like San Francisco’s Shambala are under attack, while it seems that only the biggest players, such as the Berkeley Patients Group and Harborside Health Care Centers in Oakland and San Jose, have the wherewithal to fight the feds in court. Those latter dispensaries are both contesting federal asset forfeiture actions right now.
Sometimes it’s the federal government; sometimes it is recalcitrant local officials. Sometimes, the two work hand in hand.
“The city of Riverside sent letters to the Justice Department requesting they come in and close collectives down, and they’ve gone to a couple in San Bernardino and closed them down, too,” said Swerdlow.
Many dispensaries remain open for business — ASA’s Hermes estimated their number at a thousand or more — some because local authorities have embraced them instead of trying to run them out on a rail, others because the US Attorneys simply don’t have the resources to devote all their time to shutting them down. But the unquestioned reduction in dispensaries numbers, perhaps a decline of as much as 40% over the past couple of years, means that patients are having a more difficult time getting access to their medicine.
“We’ve been hearing from patients about access problems,” said Ellen Komp, deputy director for California NORML, who added that it’s not just dispensaries. “More and more places are passing cultivation ordinances, people are having their gardens torn up or being visited by code enforcement. We’re reeling from it,” she said.
“Patients should not have to drive hundreds of miles to get their medicine, and the tragedy of it is that there are still dozens of localities that have regulatory ordinances that are functioning quite well,” said Hermes. “Those facilities are not going away unless they are shut down by the federal government, which has usually stayed away from those places. There is a community of dispensaries across the state, but the access is haphazard.”
And there are broad areas of the state with no effective access.
“It is unacceptable that dispensaries are located only where local governments are tolerant enough to allow them,” said Hermes. “The entire county of San Diego has been rid of dispensaries because of intolerance at the local and federal level. The entire Central Valley is virtually devoid of dispensaries, so is almost all the San Francisco peninsula from San Mateo down. Sacramento County is devoid of dispensaries thanks to the federal crackdown.”
“What’s going on now is absolutely horrid,” said Swerdlow. “The only people benefiting from this are the criminals and the police. Patients are having to drive hundreds of miles to cities with collectives, or get their medicine the old-fashioned way, on the black market.”
To change the situation is going to require battling at the state, local, and federal level. One immediate response has been an explosion of medical marijuana delivery services, but one immediate reaction has been to move to ban them, too, as Riverside County is considering.
“We’ve been getting lots of inquiries about starting delivery services,” said CANORML’s Komp.
Another, ongoing, response is to attempt to pass statewide legislation to regulate dispensaries. That effort in Sacramento is dead for this year, but could be revived next year.
Another possible response is a statewide initiative that would regulate and emphatically legalize dispensaries, but no one is ready to go on the record about that yet.
Ultimately, it’s about getting the federal government off California’s back. While bills have been filed in Congress, no one is holding their breath on that score. And the Obama administration appears content to maintain its status quo war of attrition.
If the California dispensary industry wants to survive and thrive, it might want to look in the mirror — part of the problem for California dispensaries, said Swerdlow, was the industry’s failure to organize effectively.
“If the DEA sent out letters to gun stores saying they were going to shut them down, there would be a couple of thousand people demonstrating,” he argued. “We’ve done a piss poor job of doing the things that need to be done to protect our rights. Money-grubbing collective owners never formed any useful or meaningful trade associations to protect their rights. Those jerks got what was coming to them,” he said bitterly.
If dispensary operators were short-sighted, Swerdlow said, patients have not been much better, despite the efforts of groups like ASA and CANORML to organize them.
“Most patients don’t do anything,” he said. “They just want to get the marijuana.”
Protecting patients and collectives requires effective political action at the local level, Swerdlow said. He has pioneered — for the medical marijuana movement, at least — the creation of groups within the Democratic Party to press the party at the local level, known as Brownie Mary Clubs.
“We were the first medical marijuana affinity group ever chartered here, and we’ve made progress here. We’re working for political candidates, and I was a delegate to the state Democratic convention. That’s the kind of thing that can make a difference,” he said.
But medical marijuana advocates need to understand that this isn’t everybody’s issue, even if others are sympathetic.
“Everyone is sympathetic, most Democrats get it, at least all the ones I meet,” he explained, “but this isn’t their issue. They’re about health care or the environment or schools. They will support us, but we have to be there to get that support.”
There is work to be done to protect patient access to medical marijuana in California. There are various options. It is up to medical marijuana patients and dispensary operators, as well as those ancillary businesses profiting from them, to more effectively take up the cudgel.
But it is ultimately a fight for federal recognition of medical marijuana, or at least, of states’ rights to experiment with marijuana policy. That’s not just up to California patients and dispensary operators, but all of us.
[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]
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