Some states are cautious about medical marijuana. They limit the number of marijuana “prescriptions” that one doctor can write, prohibit the opening of supply outlets, and permit only sufferers from certain specific illnesses to qualify.
Seen from California, such precautions can look a little timid. In the Golden State, where the modern medical-marijuana era began with a law passed by voter initiative in 1996, medical marijuana is available from hundreds of storefront “dispensaries” and has spawned a large market in cannabis grown for these outlets.
At least 200,000 Californians are authorized medical-marijuana users, according to Americans for Safe Access, an Oakland-based medical-marijuana advocacy organization. “Certainly in Northern California, well over 1 percent of the adult population are medical-marijuana users, in some places 2 percent,” says Dale Gieringer, veteran state coordinator for California NORML (National Organization for the Reform of Marijuana Laws).
Law-enforcement officials concede that Californians on the whole support the system as it's developed. Yet that system and the state laws that underpin it fly in the face of federal law prohibiting sale, possession and use of cannabis, law-enforcement authorities argue. But the Obama administration's new policy of deferring to state medical-marijuana laws was followed by a California law-enforcement defeat on medical marijuana in the U.S. Supreme Court.
In May, the high court declined to consider a challenge to California's law that was based on its inconsistency with federal law. San Diego and San Bernardino counties had pursued that argument unsuccessfully through California state courts. The U.S. Supreme Court turned down without comment the counties' appeal of a California Supreme Court decision.
But an attorney representing the California Police Chiefs Association maintains that city governments are still prohibited from violating federal law. “Since distribution of marijuana violates federal law,” Martin J. Mayer wrote in a May memo to all police chiefs and sheriffs, “passing a zoning ordinance which, for example, only allows such operations to be conducted in the industrial or commercial zone of a city, would still be in violation of the laws of the United States and, therefore, prohibited.”
So far, that argument hasn't carried much weight with California's cities and counties. “The limited legal protections afforded to pot growers and dispensary owners have turned marijuana cultivation and distribution in California into a classic 'gray area' business, like gambling or strip clubs, which are tolerated or not, to varying degrees, depending on where you live and on how aggressive your local sheriff is feeling that afternoon,” David Samuels of The New Yorker reported last year in a long, from-the-inside look at the state's marijuana industry.
Since then, the “gray area” has expanded. In June, the Los Angeles Times reported that at least 600 medical-marijuana “dispensaries” — many if not most of them storefronts — are operating in Los Angeles County alone. They've proliferated because of a loophole in a city moratorium on new dispensaries. A hardship exemption allows outlets that opened after the moratorium began to keep running while the City Council prepares a comprehensive ordinance. That project has been under way for more than a year.
Some in law enforcement argue that dispensaries are illegal even under the state medical-marijuana law. Storefront outlets aren't mentioned either in the 1996 law that voters passed nor in the 2004 law designed to provide further specifications of how the medical-marijuana system would operate, medical-marijuana advocates acknowledge.
The law does mention that nonprofit cooperatives can supply marijuana. California Attorney General Edmund G. Brown Jr. concluded in formal guidelines issued last year that dispensaries could meet legal requirements as long as they could prove they weren't making profits, nor allowing any pot to enter the non-medical market.
Joshua Braun sells numerous varieties of marijuana at his HortiPharm Caregivers dispensary in Santa Barbara, Calif. (Getty Images/Rod Rolle)
The guidelines also said that cooperatives shouldn't buy cannabis from non-members. California NORML, which has played an active role in the evolution of the medical-marijuana system, challenges that conclusion. But, NORML adds, “In practice, this restriction can be easily avoided by simply enrolling all outside vendors as members of the collective.”
But that approach doesn't look so kosher to police.
“Too often 'medical marijuana' has been used as a smokescreen for those who want to legalize it and profit off it, and storefront dispensaries established as cover for selling an illegal substance for a lucrative return,” the California Police Chiefs Association says in a 2009 “white paper” on dispensaries.
The paper also concedes that protests haven't erupted, which in turn influences city and county officials. “Because the majority of their citizens have been sympathetic and projected a favorable attitude toward medical-marijuana patients, and have been tolerant of the cultivation and use of marijuana, public officials . . . have taken a hands-off attitude.”
The public acceptance may reflect the fact that marijuana use hasn't exploded in the state's high schools — though, to be sure, the level is relatively high. The California attorney general's most recent annual survey of high-school students reported that since 2003, the share of students who have smoked pot in the previous six months has remained stable, at about 20 percent for ninth-graders and 31 percent for 11th-graders.
“One of the most disturbing findings of the current survey is, among older students, recreational use of diverted (not prescribed by physicians) prescription painkillers ranks highest in illegal use behind marijuana,” the report said.
In short, says Ellen Komp, a spokeswoman for California NORML, the medical-marijuana system is providing cannabis to patients without causing social disruption.
“Dispensaries are operating in neighborhoods,” she says, “and the state hasn't gone to hell.”