Delivering medical marijuana under the law in San Francisco
By: Chris Roberts
Special to The SF Examiner
A federal crackdown on medical marijuana services has not taken action on unlicensed deliveries.
It's not easy to open a medical cannabis dispensary in San Francisco, but it's very easy for patients to purchase their medicine from the comfort of home — even if the service is illegal.
Delivery services operating in seeming violation of city law advertise in print and on the Web, and operate in full knowledge of city officials, who say their hands are tied.
Meanwhile, the U.S. Department of Justice has shut down five licensed storefront dispensaries in The City since October, yet has not taken action on unlicensed delivery services.
San Francisco law requires vendors distributing marijuana to 10 or more people to obtain a medical cannabis dispensary license from the Department of Public Health. State medical marijuana law provides for nonprofit collectives or cooperatives to provide cannabis to people with a doctor's recommendation, but does not specifically address delivery services.
More than a year ago, Kevin Reed of The Green Cross -- which was then San Francisco's lone licensed delivery-only dispensary -- asked city officials to "level the playing field" between businesses such as his, which must pay local and state taxes and $8,656 in dispensary permit fees, according to The City's 2005 Medical Cannabis Act, and the roughly 19 delivery services at the time that advertised here.
Unlicensed delivery vendors escape paying fees by being based or claiming to be based outside city limits, according to Dr. Rajiv Bhatia, director of occupational and environmental health at the health department, which "did not anticipate" the legal wrinkle.
"These delivery establishments may be operating outside the bounds of state law," Bhatia said in an e-mail, adding that "confirming the nature and location of these operations require the use of surveillance and investigational tools not available to the Department of Public Health" and is the purview of law enforcement.
Melinda Haag, the U.S. attorney for Northern California, has shut down five of San Francisco's 26 licensed storefront dispensaries since an October news conference where she announced medical marijuana providers violating state and local law would be prosecuted. Spokesman Jack Gillund said Haag's office would not comment on the delivery services.
San Francisco currently has three licensed delivery-only dispensaries: The Green Cross, Medithrive and Divinity Tree. The latter two went delivery-only after the Justice Department shut down their storefront locations in the Mission and Tenderloin neighborhoods, respectively.
Two delivery services operating without city permits in San Francisco do have business licenses on file with the Office of the Treasurer and Tax Collector, policy and legislative manager Greg Kato said — Foggy Daze Delivery is registered as "Business Services, Except Advertising," and Nature's Relief has a license for "Other Retail Stores."
Foggy Daze Delivery has a business address in San Jose, according to records on file with the secretary of state.
Representatives for SF Green Delivery and Foggy Daze declined to comment on their businesses.
Other municipalities in the Bay Area regulate delivery services based outside their city limits. San Francisco's Medical Cannabis Task Force, a City Hall body created to recommend policy to the Board of Supervisors, included a recommendation to regulate out-of-town delivery services in its annual report, issued in the fall. To date, no legislative action has been taken.
Unlicensed delivery services "play in a legal gray area, and it isn't fair," said Shona Gochenaur, a marijuana activist with low-income patient network Axis of Love who sits on the task force. "This loophole needs to be closed."
Paying the man
Medical marijuana collectives doing business in San Francisco are required to pay taxes to both the state and The City.
$381,000 Local sales tax revenue in 2011 from city's 26 dispensaries
$8,656 Dispensary permit fee charged by SF
$4,019 Dispensary license and annual inspection fee in SF
$0 Cost to deliver medical marijuana in SF while based outside The City
$0 Tax collected from such delivery services
Source: Ted Egan, city's chief economist
Door to door
Medical cannabis delivery services offering marijuana to patients in San Francisco. None have operating permits from the Department of Public Health.
SF Green Delivery
California Green Medical
The Union Collective
The Greener Side
Mr Purple Skunk
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Posted by Mark DeLucas on October 29, 2011 1:48 PM
A California medical marijuana advocacy group is taking the Obama administration to court in an effort to halt the Justice Department's assault on marijuana growers and dispensers, the Los Angeles Times reports.
Americans for Safe Access, an advocacy group based in Oakland, Calif., has filed suit against U.S. Attorney General Eric Holder and northern California federal prosecutor Melinda Haag, claiming that the federal government's recent crackdown on medical marijuana operations is in violation of the Constitution's 10th Amendment.
Marijuana is a schedule 1 substance, deemed illegitimate for medicinal purposes and outlawed federally under the Controlled Substances Act, which the federal government is entitled to enforce. However, according to Americans for Safe Access, individual states are free to regulate substances as they see fit, and by virtue of the 10th Amendment the federal government cannot compel state authorities to contravene state law.
"Under the 10th Amendment, the government may not commandeer the law-making functions of the state or its subdivisions directly or indirectly through the selective enforcement of its drug laws," the suit claims.
"The federal government has instituted a policy to dismantle the medical marijuana laws of the state of California and to coerce its municipalities to pass bans on medical marijuana dispensaries," the lawsuit says. "To this end, the government has pursued an increasingly punitive strategy, which has involved criminal prosecutions of medical marijuana providers with draconian penalties and letters threatening local officials if they implement state law."
The suit cites, among other notices, a federal missive to the city of Oakland, informing city authorities that failure to enforce federal anti-marijuana laws would make them subject to prosecution.
"I like this lawsuit," San Francisco attorney Kenneth Wine told the San Francisco Weekly.
"While the federal government and its agents can do what they like in enforcing the federal criminal laws, they cannot compel the state to assist them," Wine said. "I suspect this case will cause the federal government in California to be very careful in the way they address state and local officials. Certainly, the threats and coercion against state and local officials by the U.S. Attorneys must stop, and likely will. For the feds to do otherwise is to put their marijuana enforcement strategy in jeopardy."
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Bill eases Maine's medical marijuana rules to do away with patient registration
AUGUSTA, Maine — A bill to ease Maine's regulations on the medical use of marijuana faces a legislative hearing.
The Committee on Health and Human Services holds its hearing Monday. Supporters say it expands and protects the rights of patients and caregivers.
The bill sponsored by Republican Rep. Deborah Sanderson of Chelsea would eliminate a requirement that patients register with the state. It also would take the decision about whether marijuana is appropriate in a given situation out of the hands of the state and let doctors decide.
Sanderson's bill would also prevent cities and towns from placing unreasonable requirements on caregivers and patients.
A separate bill unveiled last week would legalize personal use and private and commercial cultivation of marijuana, and tax consumer purchases at 7 percent.
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Venice pot doctors shut down after raid by state medical board and police
One of the Venice boardwalk’s eye-catching only-in-California features, the storefront pot doctors who lure patients with barkers, was shut down Wednesday, when the state medical board and law enforcement officers raided three locations linked to Medical Kush Doctor.
Investigators carted boxes and at least two large plastic bags that appeared to contain marijuana out of the deep-blue building next to Muscle Beach that houses a doctor’s office, a smoke shop and a popular dispensary called the Medical Kush Beach Club.
Jennifer Simoes, spokeswoman for the Medical Board of California, said the warrant was sealed. She declined to discuss the reason for the board’s investigation, but said the warrant was served at 1313, 1811 and 2017 Ocean Front Walk.
Attorneys for Medical Kush Doctor raced to the beach, but said they were not allowed on the premises. Graham Berry, one of the lawyers, said the warrant authorized a search of the offices, vehicles and “anything else that your imagination could run to.” He said it also allowed officials to seize records related to the unlicensed practice of medicine. “Since all these doctors appear to be duly licensed, I don’t know what they are referring to,” he said.
Berry said that the raid started about 10:15 a.m. and that by the time he arrived at 11, he found a line of patrol cars, a crowd gathered outside, news cameras and a news helicopter fluttering overhead. “Once I arrived, they pulled the sliding gate door down,” he said.
The Medical Kush Beach Club was also shut down, but Berry said, “It appeared to me that the target was the doctors and the practice of writing recommendations and the collective was a collateral casualty.” The Medical Kush Beach Club is operated by Sean Cardillo, who is also the registered agent for Kush Dr., the limited liability corporation that runs the doctor’s offices.
Cardillo could not be reached for comment.
Stewart Richlin, another attorney who represents Cardillo, said that agents seized 5 pounds of marijuana from the dispensary but that he expected it to be returned. “They involved the Medical Kush Beach Club unfairly,” he said. He added that he did not know whether any cash or equipment was seized but said no one was arrested in the raids.
Richlin said Kush Dr. rents space and provides promotional services for medical marijuana doctors. He said he believed the doctors followed state law in issuing recommendations for marijana use.
“As far as I know, it’s by the book. I’m surprised that this is happening,” he said. “I have a feeling by the time the fat lady sings on this it will be a lot of sound and fury signifying nothing.”
Simoes said the operation was conducted with the Los Angeles County district attorney’s office, the Los Angeles Police Department, the county Sheriff’s Department and the state Department of Corrections and Rehabilitation, which provided search dogs.
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Two lawsuits challenge Los Angeles' lottery plan for medical marijuana dispensaries
Los Angeles' latest plan — to hold a lottery to allow 100 medical marijuana dispensaries to operate — meets resistance from shop owners, who say they've followed all the rules yet still face closure.
By John Hoeffel, Los Angeles Times April 21, 2011
The next round of the costly, drawn-out legal brawl over how to control medical marijuana dispensaries in Los Angeles has begun with two new lawsuits challenging the city's latest ordinance.
The lawsuits, filed in Los Angeles County Superior Court, follow scores of other suits that stymied the city's fitful attempts to crack down on an unknown number of renegade dispensaries. The new ones could launch another series of judicial hearings and thwart the city's bid to enforce its ordinance.
Some of the oldest medical marijuana collectives in Los Angeles sued on April 13 to overturn the ordinance, which will choose the dispensaries to be allowed in a lottery, a process the lawsuit mocks as "a euphemism for a municipal game of 'Russian Roulette.'"
The 21 dispensaries suing the city are among those the City Council let operate when it adopted a moratorium on new stores in 2007. The city's first ordinance would have allowed them to stay open if they complied with restrictions on locations. But a judge ruled that key aspects of the law were unconstitutional, and the City Council passed a second ordinance that relies on a random drawing to select 100 dispensaries.
"We've done everything, everything that the city told us to do, and we're still sitting here looking at a lottery," said Yamileth Bolanos, the operator of PureLife Alternative Wellness Center, a dispensary on South La Cienega Boulevard. "We're fighting back. We have to fight back."
Bolanos, who also heads a coalition of the dispensaries the city allowed to operate during the moratorium, accused City Atty. Carmen Trutanich of creating an ordinance that could take her business away even though she said she has followed all city directives. "The city attorney has not acted in good faith," she said. "We don't believe that the things that he's done are fair."
House of Kush filed a separate lawsuit on March 21. The Eagle Rock dispensary and possibly hundreds of others were barred from participating in the lottery, which is limited to stores that were open when the city's moratorium took effect on Sept. 14, 2007. "This discriminatory treatment lacks a rational basis or compelling state interest," the lawsuit says.
A third lawsuit could be filed next week, said Stewart Richlin, an attorney who represents some of the dispensaries that successfully challenged the earlier ordinance. "We're going to bring it ASAP for multiple reasons," he said, "especially to stop any perception that this ordinance is constitutionally acceptable."
The city has appealed the judge's decision on its first ordinance, but has also taken steps to hold a lottery. It has accepted applications from 231 dispensaries and has told 206 others to close. Jane Usher, a special assistant city attorney, said the city disputes the claims in the new lawsuits.
Aaron Lachant, an attorney who represents the 21 plaintiffs that sued last week, said he plans to ask for an injunction to halt the lottery. "We'll file it as soon as we can," he said.
Lachant said the lawsuit is intended to protect the rights of those dispensaries the city allowed to remain open in 2007. City officials estimate that about 135 are still in business. "They want to work with the city, but they have not been given a fair chance," Lachant said.
The lawsuit targets the lottery and the process of choosing locations for dispensaries. It describes the lottery as "discriminatory, arbitrary, capricious, confiscatory and oppressive," and it calls the process of allowing the winners to pick their locations in the order they are drawn "a game of musical chairs."
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Sometime next month two of eight medical marijuana dispensaries in Maine are expected to open: one in Ellsworth and one in Auburn. Two are already taking medical cannabis on the road and selling it to authorized patients. There have been some stumbling blocks. Several cities and towns have passed temporary moratoriums against dispensaries. And next week lawmakers will consider a bill to change some of the program rules. But the state is finding that interest in medical marijuana is growing every day.
Tim Smale and his wife Jenna looked at 35 locations before settling on a building in an Auburn shopping center to set up their non-profit medical marijuana dispensary, known as Remedy Compassion. They plan to include an on-site kitchen to make medical marijuana tinctures and edible as well as topical cannabis cream to treat arthritis and muscle spasms.
They are keeping secret the location of their medical marijuana cultivation site, but say they plan to offer high quality strains to treat a variety of ailments. They've already received a green light from the state and plan to open in the next 30 days.
Smale says the goal is to keep prices as low as possible. "I can't come out the door and offer $99 ounces," he says. "We wouldn't be here. But I can offer what the market price is. So, for example our price to our patients is $336 dollars. And I think the market price is up in the neighborhood of $400 or $350--or something like that."
The market price means the black market which many patients are already familiar with. Smale says he'll offer five percent discounts to veterans and patients on MaineCare and Social Security. He'll start out with a small staff. Right now there are just four employees, including his wife and himself, and fewer than 100 patients.
But Smale says he's anxious to get medicine to patients who need it. He says he knows what it's like to need pain relief. He's suffered from debilitating migraines for more than 20 years. At their peak he was getting them two or three times a week.
"These are very intense episodes with nausea and intense pain, and it just sends me crying like a baby sometimes," he says. "So my wife, Jenna, has actually had to give me some cannabis during these headaches when I'm literally crying on the ground in pain."
Over the years, Smale tried all kinds of medications but found them ineffective or with unpleasant side effects. He says marijuana is the only thing that works for him. He prefers to inhale it with a vaporizer so he doesn't have to smoke.
"I get probably two migraines a month now, and maybe one of them will be so devastating that I'm in a massive amount of pain. So it's changed my life," he says. "If I didn't have cannabis, shoot me, put me away. Life is not worth living without cannabis. I couldn't live without it. I would be disabled."
So many people are interested in medical marijuana that Catherine Cobb of the division of licensing at the Department of Health and Human Services says she and her staff are fielding 50 or 60 calls a day from prospective patients.
Cobb says the medical marijuana program has now registered more than 1,000 patients and 300 caregivers. "I predicted 1,200 patients and 300 caregivers in the first year and we have enough applications in the queue to exceed that 1,200 number."
Under the rules, patients with a doctor's authorization who register with the state have the option of growing their own medical marijuana, choosing a caregiver to grow it for them or signing up with a licensed dispensary. Cobb has been interested to see what patients are choosing.
"We have quite a few patients who are choosing to grow their own, but if they haven't previously used medical marijuana they're tending to choose a caregiver or dispensary because they don't want to start from scratch and wait for two or three months before their own marijuana starts producing buds," she says. "So I think for some of them it's an expediency."
According to a recent report by DHHS, Kennebec County has the highest number of qualified patients, followed by Cumberland and York. And Cumberland, Oxford and York Counties have the highest number of registered caregivers.
The report also finds that 118 doctors have agreed to participate in the program, although many express concern about potential liability attached to their recommendations. Some employers have also prohibited their physicians from recommending the use of marijuana.
And that's one reason Jonathan Leavitt of the Maine Marijuana Policy Initiative wants to relax some of the existing rules. "A lot of small adjustments that we think need to be made and will help the law work better for everybody, bring it on par with the relationship that doctors and patients usually have, where it is up to the physician to decide what the appropriate medication is, not the state," he says.
On Monday, lawmakers will hold a public hearing on a bill that would, among other things, eliminate the state's patient registry and the list of medical conditions that medical cannabis can be used to treat.
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Medical marijuana dealer Scott Q. Shupe will avoid prison on drug-trafficking charges, at least for now.
“In this case it was clear you didn’t intend to break the law, which is in a state of flux as we speak,” Spokane County Superior Court Judge Tari Eitzen said during this afternoon’s sentencing hearing. “But the jury found you guilty. That’s what I’m stuck with.”
Eitzen imposed the least-possible jail term under the state’s standard sentencing guidelines, which is six months given Shupe’s criminal history, but then delayed the punishment if Shupe appeals, and comes up with a $5,000 bond. He also was ordered to avoid selling drugs to anyone.
“I think it’s funny that he may be the only person convicted for a dispensary, which may be legal in a week,” said defense attorney Frank Cikutovich, referring to efforts in Olympia to clarify the state’s voter-approved medical marijuana law. “I think it was a complete waste of resources as far as the county is concerned.”
Shupe had argued during last month’s trial that the state’s medical marijuana law enables dispensaries to supply doctor-approved marijuana patients, provided they serve just one patient at a time.
Prosecutors disputed that interpretation, arguing that the medical marijuana law, approved overwhelmingly by voters in 1998, makes no provisions for commercial dispensaries. Jurors agreed with the prosecution.
The case was watched closely by authorities and dispensary operators alike, with both sides hoping that the jury would provide guidance for what many argue is a confusing state law.
Outside the courthouse, about two dozen marijuana advocates spent the afternoon protesting Spokane’s crackdown on medical pot dispensaries. Shupe — who has a doctor-issued medical marijuana card — joined them and smoked some marijuana before heading to court.
Shupe, who has a previous felony conviction for growing marijuana at his home in 2006, said he hopes to avoid prison time. He still faces felony drug charges in Oregon related to a 2009 arrest.
Shupe credits what he calls the “military industrial complex” for keeping marijuana illegal, saying military officials are afraid no one will fight wars if marijuana is legal.
Protester Dennis Whited planned to attend Shupe’s sentencing. Whited owns the dispensary Medical Herb Providers. He began using medical marijuana after losing his leg in a motorcycle accident nearly two years ago.
He said he has no plans to close his dispensary but has been ordered out of his rental property on Freya Street after his landlord was warned by federal authorities about possible prosecution.
He said he’ll find a new building or will become a mobile dispensary.
“I don’t know what I’m going to do,” Whited said.
Meanwhile, in Olympia, state lawmakers are attempting to provide greater clarity in the voter-approved medical marijuana law. A proposal to regulate pot farms and medical marijuana dispensaries has cleared each legislative chamber but backers are still trying to iron out minor differences in each version.
Without the legislative guidance, communities have taken different approaches to enforcement. Seattle-area police and prosecutors, for example, have made enforcement of medical marijuana their lowest priority and have let dispensaries operate openly without interference.
Shupe’s defense attorney, Frank Cikutovich, said his client sold marijuana only to doctor-approved medicinal users. Cikutovich said Shupe routinely kicked out patrons who tried to buy pot without proper authorization.
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The owners of “Buds 4 Life”, a medical marijuana collective in Fresno, California, recently donated $5,000 to the Fresno Police Activities League, only to have their check returned forthwith. The Chief of the Fresno PD – Jerry Dyer – says that while the donation was made with good intentions, the city doesn’t support medical marijuana and taking the donation would send the wrong message to kids.
Buds 4 Life Owner, Brian Cooper said, “That’s all we were hoping to do was to just help some of these kids. Get them off the streets where the real problems lay, the gangs, the hardcore drugs.”
Herein lies one of the many problems with The War on Drugs. People like Police Chief Dyer and those who support him see no difference between cannabis and “hardcore drugs.” To them these caregivers are nothing more than scumbag drug dealers.
If you want to talk about sending the wrong message, what about making kids think marijuana is the same as crack and heroin? What happens when they find out – and they will find out, the Internet has changed the game – that they have been lied to? What happens when they find out the cannabis plant is non-toxic and has many medicinal properties and the people they used to trust told them it was a deadly “gateway drug?”
It would seem to me that raising money for programs that keep kids off the street is more important than making some kind of silly political statement about medical marijuana. Obviously, Chief Dyer feels differently.
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