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Medical Marijuana Laws: Still Hazy

June 18, 2010

San Diego News

By: Dave Good

Posted on Fri, Jun 11th, 2010

Last month,Joseph Nunes became the first casualty of the district attorney’s crackdown on medical marijuana distributors in San Diego, when he was sentenced to one year in prison and three years probation.

Nunes operated the Green Kross collective on Mission Boulevard. He was arrested in September of last year as part of a DEA-assisted raid by local authorities on hometown medical marijuana collectives and dispensaries. In all, 14 such dispensaries were raided.

Local law enforcement’s crackdown was due in part to a sudden proliferation of marijuana storefronts in neighborhoods countywide (and elsewhere in California) after the Obama administration, in the evidence of growing public pressure to legalize marijuana, announced that they would cease to prosecute medical marijuana collectives and their customers.

But in spite of Obama’s moratorium, pot to this day remains a Class One controlled substance. And since passing a measure to legalize, the state government’s direction has been to leave regulation of medical marijuana dispensaries up to individual jurisdictions. California pot law is a patchwork quilt of confusion.

Still, marijuana is said to be the nation’s number-one cash crop, surpassing corn and other commodities. So, some lawyers are gearing up to guide what, by all accounts, will continue to be a growth industry.

Lee Burdick is a San Diego Port Commissioner, and an attorney at Higgs, Fletcher & Mack, specializing in regulated industries. She sees no reason why the marijuana business as a whole should not become regulated along the same lines as alcohol beverages.

“My approach is, let me help [cooperatives and growers] become a legitimate business that participates in a legitimate industry,” says Burdick,”and help them take control of their own stake, not just of individual compliance, but also in participating in the development of a new industry.”

In 1996, California became the first state in the nation to legalize marijuana cultivation and possession for medical patients with the passage of Prop 215. Afterward, voters in 13 states passed referendums to legalize medical marijuana. But, not everyone was happy about it.

In Billings, Montana, two medical marijuana storefronts were firebombed recently in separate incidents. And crackdowns by law enforcement continue. Tacoma’s North End Club 420 was raided earlier this month, even though Washington legalized medical pot in 1998.

In San Diego, District Attorney Bonnie Dumanis formed the Narcotics Task Force which has been in large part responsible for medical marijuana arrests.

“The District Attorney,” says Alex Kreit, chair of the city council’s medical marijuana task force, “has unfortunately taken a very restrictive view of what the state allows for.” Kreit’s outlook for the future is not optimistic. “You will probably see more criminal work on medical marijuana issues in San Diego County than in other parts of the state.”

The larger problem, as Burdick sees it, lies in keeping her clients compliant in what is essentially a very large gray area created by the lack of any firm direction by either state or federal governments.

“At what point,” she asks, “do you exceed what is legally allowed under Prop 215 and become a drug lord?”

Burdick has plans to help guide the business of marijuana cultivation and distribution into a respectable business. “Once Prohibition was overturned, it didn’t become a free for all for alcohol,” she says. “It became a highly regulated industry.”

She sees a day when medical marijuana cooperatives would be treated as legitimate businesses with full voting rights and privileges. But first, she says, “They need to take control of their own fate and to be able to participate in those processes openly and without fear of retribution.”

But that is not a likely scenario in today’s climate, says David Speckman, a San Diego attorney in private practice who represents more than a dozen such medical marijuana collectives.

“As long as possession of marijuana is illegal at the federal level,” he says, “then you’re not going to see the type of organized structure and regulation that you would find with alcoholic beverage control at the state level.”

Federal law trumps state and local laws, says Speckman, and the hard facts are that the possession of marijuana is a crime.

“What [the feds] are saying is that for purposes of medical marijuana, they are going to defer to the states but with a very important caveat: that one may believe that they are in full compliance with state law and still run amiss of the federal law.”

Speckman says his goal is to help his clients to operate as close to legal compliance as they can, but admits that there is a fear factor among them. “There is,” he says. “And there should be.”

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