Click photo to enlarge
MichealResendez,35,trims a marijuana plant in his San Mateo, Calif; backyard Friday, September 7, 2007. Resendez has been growing and smoking his own pot since 2001. (John Green/San Mateo County Times)
Two weeks after the DEA raided three San Mateo medical marijuana dispensaries that the county district attorney said violated state law, the County Counsel's office is preparing guidelines for the distribution of medical marijuana.

A model ordinance which the county and cities could adopt to regulate the distribution of medical marijuana would be good government, said San Mateo County Supervisor Jerry Hill.

"San Mateo County has always been at the forefront of attempting to meet the needs of its citizens, and we have a heart," Hill said. "If someone is suffering, then we want to prevent that. And if someone is suffering from adisease, and medical marijuana is their only relief, we want to facilitate that within the law."

That's the way San Mateo Mayor Jack Matthews feels about the matter.

A few days after the raids, Matthews proclaimed himself "absolutely 100 percent, four-square behind the use of marijuana for medical purposes."

Matthews, along with 66 percent of San Mateo County voters, supported Proposition 215, the 1996 measure which legalized medical cannabis in California.

The federal raids left him surprised. For one thing, he was uneasy that four establishments — the three that were raided and another that shut its doors when the DEA came to town — had "popped up, seemingly overnight," he said. And he was concerned that these dispensaries were operating illegally.


Advertisement

So Matthews and City Manager Arne Croce contacted Hill to discuss a county ordinance reining in the dispensaries. Initially, Hill said it was an issue for the state to resolve, a position echoed by other supervisors.

Then, the county supervisor backtracked. Recognizing that "any chance in the future that the state will take up this issue was slim to nil," he scheduled a chat with District Attorney James Fox.

Fox, the man who called in the DEA to raid the dispensaries, has insisted that the issue should be solved by the state. Nonetheless, he agreed that regulations could be useful in the absence of state regulation.

Today, medical marijuana advocates will converge in Redwood City for the county's Board of Supervisors meeting to voice their support for local regulations.

Regulating the distribution of medical marijuana legitimizes the rights of patients to get their medicine, they say. Establishing rules for law-abiding dispensaries fosters trust among cannabis providers, law enforcement and the community.

"People have a right under state law to have access to this medicine," said Bruce Mirkin of the Washington D.C.-based Marijuana Policy Project. "It's better for everybody to have safe, regulated access, and the way to achieve that is through a reasonable set of regulations.

"We think that regulation makes a lot of sense," he explained. "As long as it's real regulation and not regulation designed to create so many obstacles that it's a ban in the form of regulation."

Regulating marijuana

Oakland is one of 26 cities and in one of the eight counties in California that have ordinances allowing and regulating dispensaries, and their regulations represent a compromise between advocates, who want to maximize the freedom of dispensaries to serve patients, and politicians, who want to balance security concerns with the needs of a small community that relies on medical cannabis.

There are four dispensaries in Oakland, and they have each been chosen by the city to operate with a one-year, renewable license. Under state law, the dispensaries must be non-profit or not-for-profit collectives or cooperatives and serve only patients who have been given recommendations from a doctor to treat their illness with marijuana.

The patients, who use medical cannabis to treat ailments ranging from chronic arthritis and attention deficit disorder to terminal diseases like leukemia and HIV, sign forms which allow them to be members of the cooperative. Their member status entitles them to the purchase of cannabis, and their money goes toward operations overhead, which includes everything from security to rent to growing expenses. The patients may also grow marijuana and sell their excess to the dispensaries. 

Since Oakland introduced medical cannabis regulations in 2004, "the dispensaries have been so problem-free and crime-free that citizens who aren't participating hardly even know they exist," said Barbara Killey, an assistant to the Oakland city administrator.

Killey, who oversees the permitting and regulation of the city's dispensaries, would rather the federal government legalize medical cannabis so that pharmacies could sell the drug.

"Since that's not really a current option, then I think dispensaries are the next best alternative," she said.

The collectives pay business taxes to the city, draw people to the community to shop and even reduce crime in their neighborhood because of the security they hire to protect their operation, said Killey.

Medical marijuana advocates point to the success of cities like Oakland when advocating regulations, but they also complain that regulations are sometimes overly restrictive.

The city of San Francisco has an ordinance that makes it very hard for new dispensaries to open, said Kris Hermes of Americans for Safe Access, an Oakland-based medical marijuana advocacy group. Meanwhile, Oakland's four-dispensary limit may create higher prices through a monopoly, said Mirkin of the Marijuana Policy Project.

Naturally, law enforcement in jurisdictions which have established regulations think otherwise. If cities and counties enact regulations for medical marijuana dispensaries, lawmakers must set out "reasonable" guidelines, said Santa Cruz police spokesman Zach Friend.

Santa Cruz, which established its ordinance in 2005, has two dispensaries located in an industrial part of town, and few problems have been reported, Friend said.

Initially, there were fears that the dispensaries were situated too close to a public park, but the dispensaries "have done a pretty good job of policing themselves," Friend said.

The city of Santa Rosa passed an ordinance in 2005 which zoned dispensaries at least 500 feet away from parks or schools. The ordinance also limited the city to two dispensaries, and capped the membership at 500 people each.

Santa Rosa City Councilwoman Jane Bender said that the zoning restrictions protect children, and the caps ensure the city doesn't become a magnet for medical marijuana patients from outside the county.

Like many officials throughout the state, she worries that unethical doctors are providing recommendations for people who don't truly need medical marijuana, but she says there's nothing they can do to control that aspect. In any case, putting up with the failures of the medical board to control "phony prescriptions" is a "trade-off" in exchange for not "criminalizing sick people."

"I hope that people can work this out in San Mateo so that families who desperately need medical marijuana can get it," she said.

Non-profit versus for-profit

Medical marijuana advocates worry that sick people in San Mateo County will be limited in how they get their medicine under new regulations.

While cities like Oakland, Santa Cruz and Santa Rosa allow dispensaries that serve hundreds — even thousands of patients — there is already doubt that such facilities could exist in San Mateo County.

That's because the county district attorney has a different opinion on state law than medical marijuana advocates. While defenders of medical marijuana argue that the law allows for dispensaries that accept money from multiple patients in exchange for cannabis, Fox maintains that such operations serve "customers, not patients."

Dispensaries serving hundreds of patients are hardly non-profit cooperatives, Fox said.

"Can you explain to me any difference between these dispensaries and Safeway stores?" Fox said. "These growers are making money. (They're) not non-profit operations."

That's the reason he called in the DEA to investigate the three medical marijuana dispensaries in downtown San Mateo, he said. The operations were not "legitimate collectives," because they were selling marijuana to a list of patients, Fox said.

But that's exactly what the law allows, said Matt Kumin, a San Francisco-based attorney who represents a number of medical marijuana dispensaries throughout the state, including the Patients Choice Resource Cooperative, one of the raided San Mateo dispensaries.

Kumin, a former president of the California Association of Cooperatives, argues that Fox does not have a proper understanding of consumer cooperatives under state law. Far from operating like Safeway, the dispensaries are modeled after alternative supermarkets and businesses like REI, the outdoor-sports equipment cooperative.

Such consumer cooperatives offer members high-quality goods at low cost for those who don't grow their own food or manufacture their own sporting goods.

"Some patients just don't have the capability to cultivate their own medicine," said one East Bay dispensary operator. "Maybe they're blind, maybe they're in a wheelchair, maybe they live in a rental property where they're not allowed to grow medical cannabis. Maybe they don't have the thousands of dollars it takes to set up a grow room. There are plenty of legitimate reasons for medical cannabis patients not to grow their own medicine."

Fearing reprisal by the federal government, which does not acknowledge the state's medical marijuana law, the dispensary operator asked to remain anonymous.

He warned that a narrow view of state law which prohibits large-scale cooperative dispensaries would only "force patients to find each other in dark alleys somewhere," leaving them without the resources that a cooperative can provide.

"If you want responsible, professional people to distribute the medicine, you have to give them a license," he said.

Drafting fair regulation

San Mateo's mayor agrees that patients are better served by cooperative or collective dispensaries which can offer medical cannabis in exchange for money.

Forcing patients to grow their own medicine is "a very primitive way" of providing medicine, he said.

"What if we decided that you could have all the aspirin you wanted as long as you grew the birch trees?" he said. "If we're worried that (marijuana) is going to be abused, then we need to have careful screening of the people who sell it and the people who buy it."

That's why local officials in cities like Oakland, Santa Rosa and other jurisdictions have approved ordinances which enable cooperative dispensaries to flourish. However, medical marijuana advocates warn that many cities pass bad regulations when they rely on law enforcement to write them.

"It's important that the public officials in San Mateo County hear from all stakeholders involved," Hermes said. "That means patients, potential dispensary operators — and if you want to include the entire community, you'd want to also include physicians and advocates as well."

The process of drafting a model ordinance will take "months — and not just a few," said County Counsel Mike Murphy. When the draft is completed, city and county officials will have a framework. But elected officials are under no obligation to adopt regulations.

Micheal Resendez, a disabled veteran who lives in San Mateo, is rooting for an ordinance as soon as possible.

Resendez, 35, suffered severe hemorrhaging in his brain after he fell out of a speeding truck during training as an Army Ranger nearly a decade ago. Doctors prescribed him morphine, demorol, antidepressants and a host of other medication which he said turned him into "a walking zombie." When a friend turned him on to medical cannabis, he found that "it allowed me to have a life again."

Resendez grows his own marijuana, but he lost his ability to tend his garden when he injured his back several months ago. Until the dispensaries in San Mateo were raided, he visited them to get his medicine.

Now that he has nowhere to go in the county for a reliable source of medicine, he wants the county to draft regulations for dispensaries more than ever.

"If we voted for medical marijuana (in Proposition 215), then I think the county should be held responsible for regulating and maintaining distribution of cannabis," he said. "They're our government, they're the ones who we elect to work for us to make sure that the laws we vote for are enacted and regulated.

"These are the people we elect to take care of us. That's what we have government for."

Staff writer Michael Manekin can be reached at 650-348-4331 or by e-mail at mmanekin@sanmateocountytimes.com.