Calif. Supreme Court To Review Medical Marijuana Regulation In Cities
January 23, 2012 1:07 p.m.
Greg Schultz, owner, Medical Marijuana Collective.
Alex Kreit, former chair of the city's Medical Marijuana Task Force and professor at Thomas Jefferson School of Law
Related Story: Impact Of CA High Court Review Of Medical Marijuana
CAVANAUGH: This is KPBS Midday Edition. I'm Maureen Cavanaugh. The California Supreme Court last week said it would take on the hot potato issue of medical marijuana insofar as to whether local governments can ban dispensaries. Cities around California and in San Diego County are busy banning dispensaries, either initially or pie way of de facto bans. At the same time, federal agents have been raiding medical marijuana dispensaries, most recently in Kearny Mesa, in accordance with a federal crackdown allowanced last fall. It might be a good time to try to get some information on this medical marijuana mess. Greg Schultz is owner of a medical marijuana collective in San Diego, and welcome to the program.
SCHULTZ: Hi, how are you?
CAVANAUGH: Good, thank you.
SCHULTZ: I'm actually a director.
CAVANAUGH: I'm sorry, director of the collective. And Alex Kreit, former chair of the city's Medical Marijuana Task Force and professor at Thomas Jefferson School of Law. Welcome back to the show.
KREIT: Thanks for having me.
CAVANAUGH: Let me start with you. What did the California Supreme Court say it would consider in the medical marijuana case?
KREIT: There's two different issues. One is can localities ban medical marijuana dispensaries completely? It's a pretty straightforward question, yes or no. The second case is the extent to which they can regulate dispensaries, zoning regulations, these kind of thing, and that is a question of federal preemption. At what point does federal law preempt state or local law and stop that regulation?
CAVANAUGH: How far can the state Supreme Court go in deciding a matter like that?
KREIT: They can decide entirely that issue of preemption, it's something that could be brought into federal court, appealed all the way up to the US Supreme Court, that issue of federal preemption. And that's, you know, going to be a particularly important issue because right now, most of the low regulations that exist in the state operate on the basis of some kind of permitting system. And intermediate appellate court in California issued a somewhat unusual decision that was inconsistent with some other court rulings, and they said that kind of permitting scheme goes too far. It's okay to have these state laws that just exempt medical marijuana, say, from state prosecution or say there's an affirmative defense in state court, you could have restrictions on hours. But if you have a permitting scheme, that goes beyond just allowing these dispensaries and going into authorizing them, if you authorize them, that's preempted by federal law, and if that decision holds up in the state Supreme Court, that's really going to throw into flux and disarray, a lot of the local regulations across the state. That's going to be an important facet of these decisions that the Court's granted review on.
CAVANAUGH: The flip side of this seems to be the decision to actually ban dispensaries. Poway became the latest city to ban dispensaries in San Diego County. Why are cities choosing that option instead of regulation?
KREIT: Well, I think part of it is because of the difficulty in regulation, especially with this other decision, talking about permitting, not permitting, a lot of cities throw their hands up in the air and say, wow, this is going to be a legal thicket. Maybe it's easier to institute a ban. As a matter of public policy, I think a ban is a bad idea. The reality is, California voters have supported medical marijuana, and I think localities should look at that and say part of that is having safe access. If you institute a ban, the law doesn't change in terms of patients. Patients still use it, but they've got to get it somewhere. And if you institute a ban, all you do is drive those patients into the black market. It's much better to have a regulatory scheme, what say what the permitting can be, what the hours of operation can be, that way the patient vs that access and don't feed the black market.
CAVANAUGH: There is a third way, and the City of San Diego seems to have chosen that third way. It's a de facto ban on dispensaries
That is, basically, there's no way that you can get -- heelly operate one because there are no regulations, and yet there isn't a formal ban. What's the legal basis for that?
KREIT: Well, that is -- in San Diego, we have a pretty unusual situation. The City Council formed the medical marijuana task force, which I was happy to serve on, and we made some recommendations to the City Council in how to regulate these dispensaries. The city passed an ordinance that was restrictive, but they passed one. Some folks on the medical marijuana side opposed that ordinance. So they gathered signature it is and put the issue back to the City Council. Are we going to rescind it or put it to a vote at great expense to the taxpayer? They decided to rescind it. The city attorney has to look at it and say, well, there's nothing that regulates medical marijuana dispensaries, how should we interpret current land use codes? One option would be to say dispensaries fall under some other existing part of the land use code, say hospitals or private clubs or some other existing designation. The city attorney has looked at the codes, and in his office's opinion, they say there's no code, there's no use that these dispensaries fall into. Therefore, they're not permitted within the city, and you have this sort of de facto ban scenario. That's something that, you know, even though there is a defactee ban, places are continuing to operate in large part because this theory hasn't been tested out all the way through the Courts.
CAVANAUGH: Let me bring Greg Schultz into the conversation. He's director of the medical marijuana collective. Now, we saw in the news recently DEA agents raiding four dispensaries in San Diego. They have been ordered to shut down in 45 days. How concerned are you that your collective will be raided?
SCHULTZ: Countried, I don't know filled say concerned. I know it's going to be raided. We've noticed that the DEA is definitely doing surveillance on us.
CAVANAUGH: How do you notice that?
SCHULTZ: Because they weren't very smart. They were basically in marked cars, cars that said US government on them, and they were sitting across the street taking pictures. So we know that they're watching, we are know that we're going to be raided at some point. I've also bullpen on quite a few programs. So it's not like I'm hiding. But we just prepare for that, and we're not doing anything illegal. I have an extremely large patient base of very ill people. And I have told those people from the very beginning, I will serve them. And I'm going to keep serving those patients until I can't serve them anymore.
CAVANAUGH: Now, when there is a raid on a facility like yours, what actually happens? What have you heard, if anything, from other people who have had their collectives raided? Items taken what happens?
SCHULTZ: We're actually quite knowledgeable about the raids. The DEA agents are typically coming in with masks on so you can't see their face, they are accompanied by two San Diego police officers, and they come in with guns drawn, obviously, and it's a very hostile type of situation. Typically, they're putting everybody on the floor, getting everybody in handcuffs, and once everybody is secured, then they're going through and taking all the business records, all the patient records, all the medication, and money that's on sight. Surprisingly, the only people that have been arrested in any of the raids so far were people that weren't actually there at the dispensaries themselves. There was actually two people arrested, and one of the people was outside, and when they pulled up, he threw his hand it is up, and when they took him into custody, they found he had a concealed weapon. And the other person was somebody who was dealing heroin, and when they pulled up, he hit the floor, so they took him into custody and found out he had heroin on him. Neither one of them were actually connected to the dispensary themselves. So no (from the actually dispensary as yet has been arrested
MAUREEN CAVANAUGH: I've heard they are issued a warning?
SCHULTZ: They're being given a new notice from the feds telling them you have 45 days to shut down. But there is no physical lock placed on the door or anything like that.
CAVANAUGH: You bring up a point that a lot of people do point to when they say, well, we don't want marijuana dispensaries in our neighborhood, we talked about the guy who was dealing heroin had nothing to do with the actual ownership or directorship of the collective, but even so, a lot of people claim that medical marijuana sales have been abused, too many people can get prescriptions, the places threaten neighborhoods. What do you to say to that?
SCHULTZ: Like with anything, there is some abuses to it, and I'm a member of the PCA, and we definitely are looking for regulation.
CAVANAUGH: What is the PCA?
SCHULTZ: The patient care association of California. So we definitely don't want that type of image, and we don't want that around the dispensaries. So unfortunately, when it comes to their saying that too many people are able to get the recommendations, we can't do anything about that. That's the state medical board. They oversee the doctors that are doing it. My collective actually works with a group of doctors that do this, but they're also the only practicing doctors in the community. They stale practice on a daily basis at hospitals all around town. Most of the doctors have come out of retirement to do this. And so it's obviously in their interest just to make a quick buck. We're not necessarily -- we don't necessarily endorse at my collective. We would like to see tighter regulations in that aspect of it. We can't regulate that, that's not our position to do. We can only take what we have at hand and make sure that it's correct and valid. And go from there.
CAVANAUGH: Greg, let me ask Alex, you heard the description of the DEA agents coming in with the guns and the people on the floor. Are you surprised that it's come to this?
KREIT: Well, I am a little surprised in as much as this is really not consistent with what President Obama said on the campaign trail with what attorney general holder said when the president got into office, which was they said we don't think it's a good use of federal resources, squares resources to go after these folks who are in compliance with state laws. And it's kind of -- especially odd, the timing, because now when we have these federal deficits, everybody is concerned about how we're going to tighten our belt, tax dollar-wise, it seems an odd time to use all these federal resources to have people coming through, guns blazing, with multiple agents into this storefront. So that aspect of it I think is a little surprising.
CAVANAUGH: What kind of sense have you made of this?
>> When I look at the lay of the land, I think a lot of it is that the president's position was basically based on this memo. The attorney general's office released a memo advising local offices saying we don't think it's a good use of resources to go after these folks who are in compliance with state law. But it was not a directive. There was no self-enforcing mechanism. I think they released this memo, there are some local offices staffed by folks who have been there for a long time who just disagree with that position. And I think that I started to test the wars, going after some folks in ways that were inconsistent with that initial memo. And they started doing it more and more. And after that, at a certain point, the Department of Justice issued a second memo going back on that first one, and taking us now to a policy that's not much different as it was under president bush.
CAVANAUGH: What is your sense of how much people are turning to a black market to get marijuana that they use as medicine?
SCHULTZ: I think the percentage could be very high because you're looking at what we started, we had 280 plus dispensaries. In the last three month, we're down to 26. You're going to have all of those patients from all of those dispensaries that were going other places, that are basically calling around and finding out that so many of them are closed, they're getting depressed and discouraged, and they're going to end up going to the black market. You do have a percentage of them that would probably never do that. But then they're going to be left suffering and back on prescription drugs that not only will do whatever, but they're also damaging and other organs and stuff lick that. And one other thing, San Diego's got a unique situation here. The DEA is here because of one reason. And that's because Jan Goldsmith brought them in. Of that's the only reason they're here. Mr. Goldsmith was ordered by the mayor to shut these places down, and he brought the DEA in. That's why San Diego is going through this.
CAVANAUGH: This is not something that Mr. Goldsmith has said publicly. This is a determination that you're make something
SCHULTZ: No, it's been said. One of your colleagues here as also interviewed Jan Goldsmith, and he did stress that he was told by the mayor to shut these places down, and it's been said by self officials that the DEA is working with the city attorney's office. That's why San Diego is going through these issues with the DEA. The DEA has to -- most of the time they have to have cooperation from the local officials to be able to come in and do this. So that's why they're running rampant.
CAVANAUGH: You say that you've made a promise to the people who use your medical marijuana dispensary that you won't let them down, but if they come in and raid your place, give you 45 days to cease and desist, and get out of the store, what are you going to do?
SCHULTZ: Continue to fight. We're planning on, hike everybody else, fighting with lawsuits, and just fighting through the legal channels to try and get this taken care of. One other thing I did want to mention is the Supreme Court is actually looking at a third case, and that is the trout V. City of Dana Point, and that case is about zoning. That was whether a zoning ordinance that bans dispensaries violates the patient's rights to equal or adequate medical access of medication. So that's a third case that they're also looking at.
CAVANAUGH: We are just out of time. I want to ask you a quick question though. When is the California Supreme Court going to take up these cases?
KREIT: Well, the first time that they had one of these medical marijuana cases before them, it was a year or two, drawn out. Hopefully we'll get a quicker decision. There might even be a ballot measure coming up in the fall. There's a group that filed language to do a ballot initiative, if it were to go forward and pass would clarify some of these things as well. It might even be before the California Supreme Court takes up some of this. We might have some clarity with this potential ballot measure.
CAVANAUGH: I want to thank you both. I know we'll probably be having you back on, talking about this same issue.