State governments reconsidering medical marijuana dispensaries


Last week, Michigan authorities raided three Oakland County
marijuana dispensaries, confiscated files and plants and arrested 15
people, charging them with dealing marijuana, among other offenses. The
move stunned patients, who are allowed by state law to use the drug
legally as long as they have a required state-issued card declaring
medical need.

But the statute, put on the books by a successful
2008 ballot initiative, says nothing about dispensaries. Instead, it
only allows patients to grow their own pot, or to get it from a
caregiver who can provide marijuana to no more than five people.

The Oakland County
incident highlights a legal conundrum at the heart of many states’
marijuana laws. In seven of the 14 states that allow marijuana use for
medical purposes, registered patients are allowed to grow their own
supply or designate somebody as their grower. Michigan is one of those states. But the Michigan law is silent on how patients or their providers are supposed to begin growing an otherwise tightly controlled drug.

“The federal law says no (to dispensaries). The state law says no,” says Oakland County Prosecutor Jessica Cooper.

But how are patients and caregivers supposed to get
seeds and cuttings or learn how to grow marijuana without a dispensary
to guide them?

“Beats the heck out of me,” Cooper says. “These statutes aren’t well written.”

Statutes such as the one in Michigan
can present a chicken-and-egg problem: It’s legal for some people to
smoke pot, but how they’re supposed to get it is less clear. “It’s a
very gray area,” says Michelle Komorn, a Michigan attorney who represents medical marijuana patients. “How do I get started? How do I get seeds?”

In several of these states, entrepreneurs have
opened dispensaries even though they are not explicitly permitted under
state law. As the Michigan raids show, those dispensaries can find themselves in a tricky legal position. In Colorado, which has similar laws, Governor Bill Ritter this summer signed a bill requiring dispensaries to grow 70 percent of
the pot they sell. The law was an effort to rein in the unregulated
storefronts that have popped up around the state.

“None of these states have provided clarity in their laws,” says Allen St. Pierre, director of the National Organization for the Reform of Marijuana Laws.
“Almost all parties, including prosecutors and law enforcement, seem to
accept the magical quality of how the cannabis seems to arrive at the
patient’s home.”

Murky legalities are nothing new when it comes to
medical marijuana. Using marijuana with or without a prescription
remains illegal under federal law. But a recent memo from the U.S. Justice Department suggests that the Obama administration won’t prosecute marijuana users who are abiding by state laws.

Fourteen years after California
became the first state to allow medical marijuana, states are
increasingly confronted with unexpected problems in the rules governing
the use and the distribution of the drug.

At first, states looking to allow medical marijuana viewed California as a model to avoid. That was because prescriptions were easy to get, and storefront dispensaries proliferated.

Oregon and Maine
seemed to offer more prudent models, because they envisioned that
patients would grow their own cannabis or get it from a trusted source,
rather than allow storefronts to open. In many of the states that
followed this model, people can legally use marijuana but they can’t
legally buy it. Instead, they compensate growers for their services, or
their labor — -a legal distinction that keeps them from running afoul
of the law.

Lately, however, the legal tangles surrounding home
cultivation have states considering a return to the dispensary model,
but with stringent safeguards to prevent retail sites from blossoming
out of control.

In New Jersey last year, former Governor Jon Corzine signed one of the nation’s toughest medical marijuana laws. It
prohibits home cultivation and allows only six nonprofit distribution
centers, all of them tightly regulated by the state.

Medical marijuana also became legal this year in the District of Columbia, where patients will have to obtain it at a city-licensed dispensary. In Maryland, a bill with similar provisions sailed through the state Senate before getting bogged down in the House.

“Politicians now are very hesitant to allow home
cultivation,” says St. Pierre. “Whereas that was pretty much what they
were attracted to.”

States with existing medical marijuana laws have gone back to tweak them. Rhode Island last year allowed the operation of “compassion centers” to dispense the drug to patients. In April, Maine enacted legislation that allows up to eight nonprofit dispensaries to operate. But Arkansas, Hawaii, Michigan, Nevada, Oregon, Vermont and Washington still give little or no guidance to patients looking to acquire seeds or cuttings.

In Oregon,
a ballot initiative this November will attempt to clarify how plants
get into patients’ hands. If approved, Measure 74 will allow
dispensaries to open under the watch of the Oregon Health Authority. Jim Klahr, an Oregon
medical marijuana advocate, says the measure will allow patients
instant access to their medicine, rather than having to wait for their
plants to mature. (For Stateline’s guide to this year’s ballot measures, click here.)

Right now, patients gather in informal swap meets to
learn how to start cultivating marijuana and to exchange seeds or
advice, all the while avoiding direct financial transactions. Oregon’s informal distribution system came under pressure in 2005 when a U.S. Supreme Court decision found that a patient using medical marijuana under California’s law was in violation of federal law. But an opinion from the Oregon Attorney General’s office said that the state’s program could continue despite the court’s ruling.

In Michigan, where a legislative fix seems unlikely, the 15 people arrested in Oakland County are awaiting trial. It takes a supermajority of 75 percent of the Legislature to amend a voter-initiated statute, which means that the confusion there is not likely to go away anytime soon.

“It’s really through the court system that this needs to be clarified,” Komorn says.


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