Supreme Court Decision a Minor Setback in Medical Marijuana Legalization Push

Monday’s state Supreme Court ruling that cities can choose to ban medical marijuana dispensaries counts as a setback—assuming setbacks can be measured by nothing lost, nothing gained.

According to local medical marijuana collective operators and advocates, the court’s unanimous decision did little more than uphold the status quo, after the city of Riverside’s decision in 2009 to declare a moratorium and shutter 56 dispensaries. The ruling now upholds bans in about 200 other California cities, including local municipalities such as Palo Alto and Gilroy.

But the same industry experts who dismiss the court’s decision as inconsequential also see a silver lining. The road to legalization is now paved for radical change in coming years.

“Patient access is a now a checkerboard, and that doesn’t make any sense,” says James Anthony, an attorney out of Oakland who specializes in cannabis dispensary land use. “Hopefully, regulation coming out of the state level will mandate, or at least encourage, local governments to control the zoning but not control whether or not medicine is accessible.”

Assemblyman Tom Ammiano (D-San Francisco), author of one of two bills working their way through the state legislature, says he hopes the Riverside decision will prompt lawmakers to action.

His bill would form the “Division of Medical Cannabis Regulation and Enforcement” within the Department of Alcoholic Beverage Control (ABC). Meanwhile, Senate President Pro-Tem Darrell Steinberg (D-Sacramento) and Sen. Mark Leno (D-San Francisco) have their own bill—SB439—that would regulate medical cannabis activity in-state.

“There’s every reason to believe the legislature, with the pro-tem’s support in the senate, will support medical cannabis regulation,” Anthony says. “Next year, we implement those changes.”

The real push for outright legalization is scheduled for 2016.

Despite poll numbers showing that a majority of Californians now supports the regulation of marijuana similar to alcohol, a lesson was learned from Prop. 19’s failure in 2010: Go to voters during a Presidential election, when turnout is greater.

“It’s a rookie move to try and push for 2014,” Anthony admits.

San Jose Mayor Chuck Reed announced Tuesday he was happy with the court’s ruling, but his city is “focused on providing a balanced approach to regulating medicinal marijuana so those who are seriously ill might have access in compliance with state law, while protecting our neighborhoods.”

Reed then went on to show the inherent conflict in such an approach by noting that “none of the facilities currently operating in San Jose is doing so legally. Our zoning code doesn’t have provisions for medical cannabis facilities.” This hasn’t stopped the city from attempting to collect a 7 percent sales tax on gross receipts from the city’s 100 or so collectives.

San Jose councilman Ash Kalra noted the “inconsistent” approach San Jose has taken, as it castigates collectives for illegal activity and then puts out a collection plate.

“That’s part of the ‘Catch-22,’” Kalra says. “I don’t think anyone has a problem taking the tax money from them, but at the same time there’s not much guidance that we’re providing, because we don’t have [a city] ordinance in place.”

Attempts to enforce the tax have been ineffective at best, and San Jose Councilman Sam Liccardo agrees that local governments are often unequipped to handle a drug that is still listed federally controlled substance.

“Cities don’t have the capacity to regulate drugs and shouldn’t be put in that position,” Liccardo says. “What we need is the [Food and Drug Administration] to deal with this, so we have legitimate pharmacies instead of these fly-by-night dispensaries.”

All things considered, it’s been a tough go lately for Bay Area dispensaries. U.S. Attorney Melinda Haag has been threatening dozens of San Jose landlords with prison time if they didn’t evict their pot-peddling tenants, and there is some debate if she is following U.S. Dept. of Justice orders or “going rogue” in some kind of cannabis jihad.

One collective owner tipped off the Oakland-based East Bay Express to the intimidating letters, according to an article last month.

“Haag threatened the landlord with property forfeiture, 40 years in prison, and asset seizure, among other penalties,” the article states.

San Jose, for one, finds itself in a sticky position when it comes to endorsing Haag’s efforts, as the city now collects more than $3 million a year in tax revenue while consistently experiencing budget shortfalls. Liccardo’s office says a public meeting is scheduled for May 21, when the city will discuss raising the cannabis sales tax to 10 percent. On June 4, the City Council could consider passing the new rate.

Dave Hodges, founder of the San Jose Cannabis Buyers Collective, says the local marijuana business tax is pointless until the city recognizes its dispensaries as legally legitimately zoned businesses. He’s not opposed to paying taxes, he says, but he will sue the city over the legality of the current tax until the city comes up with a legit zoning category for local pot clubs.

“We are opposed to paying a tax when doing so is ‘illegal under San Jose law,’” he wrote to the city on Monday. “If the city implemented a registration or permit process legally allowing cannabis clubs, we would be more than willing to pay the current tax and drop our lawsuit.”

Josh Koehn contributed to this report.

Jennifer Wadsworth is the News Editor for San Jose Inside and Metro Newspaper. Email tips to [email protected] or follow her on Twitter at @jennwadsworth.

19 Comments

  1. I’m in favor of legalizing marijauna, but it needs to be acknowledged that medical marijauana is a farce. Pretty much anyone can get a medical marijuana card and the number of truly “medical” users is small when compared to the total number of people with cards. Those running dispensaries are benefitting financially from a temporary oligopoly, so I feel little sympathy for them.

    • I agree with Jojo above.

      I also think marijuana should be legalized for RECREATIONAL use. “Medical marijuana” is primarily a way for dishonest people to obtain a license to violate the marijuana laws.* People shouldn’t have to make up some fake ailment in order to smoke pot; stop rewarding people for lying!

      *Yes, there are some people who use marijuana for bona fide medical purposes. I’d estimate that would be around twenty percent of all “medical marijuana” users, hence “primarily.”

    • “Cannabis” was featured in the United States Pharmacopoeia from the days of Sir William Brooke O’Shaughnessy up until the time of Anslinger, when the term “marihuana” and its unconstitutional “tax act” were foisted upon us. 

      The “farce” is its attempted prohibition. 

      Don’t think it’s “medicine”?  Look up “Storm Crow’s List” and get back to us, mmm-kay?

      • My point wasn’t that there is no legitimate medical use for marijuana. Rather, it was that most people who have cards aren’t really using for medical reasons.. I thought that was pretty clear, but maybe you were overly “medicated” while reading.

    • It isn’t an oligopoly when there are 100 vendors in one city.  That’s a farmer’s market.  What you probably meant was quasi-prohibition.  Yes, suppliers get higher prices in that sort of environment.

      Maybe you should look into how many scrips are written for ritalin or vicodin and how many who get them are “truly medical” users.  Manufacturers of those drugs are among America’s most highly regarded profiteers.

      What’s a farce is the idea that it’s wrong to grow a weed in your yard or for anyone to benefit financially from his or her activity.  If that were true, Santa Clara County D.A.s would be working for free.

    • Jojo, you are 100% correct.  “Medical” marijuana is a joke.  Only a very tiny fraction of the “patients” have a serious medical condition like cancer, AIDS, glaucoma.  Proposition 215 was passed to help people with these ailments, not to create a grey market for pseudo-legal weed.

      Easy access to “medical” marijuana just makes the average cannabis user complacent, as opposed to encouraging them to push for complete legalization.  During the last legalization attempt in 2010, dispensaries actually fought AGAINST legalization!  They knew that if pot became totally legal, they would lose their their exclusive market.

      Forget “Medical” Marijuana – Legalize it!

      That all being said, the fact that the city tries to keep dispensaries in legal limbo, claiming they are illegal while levying taxes on them, is a bit ridiculous.

  2. Doesn’t Sam Liccardo know that marijuana is a natural plant and not your typical pharmaceutical drug. The fact is, there are many herbal treatments that for one reason or another have not been approved [by the Food and Drug Administration]. It doesn’t take someone to long to find out that there is a very large market for supplemental herbs and vitamins, many not approved by the FDA (just go into any GNC store). And most of us for years now (Prop. 215 was approved by CA voters in 1996) know there is undeniable evidence for medicinal cannabis. And remember taht this natural medicine is always prescribed by trained medical physician.

    In my opinion these laws on availability for prescription use ought to be coming from the state level and not left to our local governments, who can play their political games by controlling the the zoning thus controlling whether or not this natural medicine is accessible to patients.

    • Comparing what is grown today with a “natural plant” is just as ridiculous as comparing a store bought turkey with a wild turkey, a farm pig to a wild boar or a student’s school apple to a “wild” apple.

      The marijuana grown today is vastly different and almost entirely “unnatural” to that which was used by Native Americans.  You likely smoke a strain of weed that has been genetically altered to produce hundreds of times more THC, grown under artificial light, in over fertilized soil with copious amounts of pesticides.

      Precisely because it’s not a pharmaceutical drug, you don’t know how much “medicine” is in it.  Legitimate prescriptions define how much and how often the drug you are supposed to take.  Marijuana users don’t know how much THC they are ingesting, because they likely have no idea how much is in the weed they buy.  As an aside, smoking is bad for your lungs- whether it’s tobacco or marijuana.  There is no debate in that regard.

      • Anonymously you have no idea what your talking about. Sorry. But I understand that the propaganda you have accepted is a hella of a drug to swallow.

      • Native Americans?  Really!?

        “Indian Hemp” aka Ganja aka Cannabis Indica is from *Asia* [as in India].  Where Sir William Brooke O’Shaughnessy found it.

        Precisely because of its therapeutic ratio of ~40k:1 there is no risk of toxic overdose.  We smoke until we’re satisfied.

        As an aside, the Tashkin study found tobacco smokers to suffer a 20x cancer rate of non-smokers, while pot smokers had slightly less lung cancer than NON-smokers.  Do you understand arithmetic?

  3. The mayor is being a hypocrite. If you are taking money from dispensaries through taxes, that is indirectly acknowledging them. He can say they are “illegal” all he wants but it won’t fly in court. Its too late for that kind of rhetoric, especially in San Jose. It’s time to legalize cannabis PHARMACIES, not dispensaries.

  4. I agree with those that call “medical marijuana” a farce.  I think the key point is that you can’t get marijuana from a real pharmacy.  When marijuana is available from real pharmacies, then no additional regulation is needed.  Until then, we need something.

  5. One of the things that would probably be most eye-opening for people who may be, as some on SJI are, a bit cynical about the medicinal value of medical marijuana- is that the very contents in the plant, (that people most commonly smoke marijuana for) are currently being sold in pill form in all our pharmaceutical stores, hospitals, and all, ironically FDA approved. The very THC component found in marijuana, is currently sold as Dronabinol and Marinol. I have been prescribed both for the treatment of nausea and vomiting while I was in cancer treatment. All I can say is that if you have never experienced cancer treatment, I can only tell you, that even a pill hurts like hell to take and keep in your stomach.

    So for me I prefer to use organic marijuana for therapeutic relief and the continued pain from years of cancer treatment- like the chronic pain and muscle spasticity that I so often experience. My life now includes the daily use of hemp seed oil, cannabis cream- and combined with proper nutrition and exercise has helped me in many ways live.

  6. Marijuana is the safest drug with actual benefits for the user as opposed to alcohol which is dangerous, causes addiction, birth defects, and affects literally every organ in the body.  Groups are organizing all over the country to speak their minds on reforming pot laws.  I drew up a very cool poster featuring Uncle Willie Nelson and The Teapot Party for the cause which you can check out on my artist’s blog at http://dregstudiosart.blogspot.com/2011/01/vote-teapot-2011.html  Drop in and let me know what you think!

  7. James Anthony is nothing but a scam artist. He says “It’s a rookie move to try and push for 2014”. Really, he is only trying to put more money in his own pockets. James is NOT a political expert. He is a “land use” attorney, and professional scam artist. The real political experts know the time is perfect for California in 2014. Who benefits most from another 3 years of “land use” and “medical marijuana” problems? James and the “Medical Marijuana Experts”.

    Thanks to their own greed, it’s easy to see what they are doing. All the “medical marijuana experts” pushing for 2016 are really just trying to milk “medical marijuana” for all they can.

    The only honest thing to do is Legalize Marijuana in 2014.

    • Truth,

      I have to agree with you. I have personally watched James make a mess in San Jose for the past 3+ years. It’s a huge shame most of the activist groups have consigned themselves to 2016. I don’t know if it’s really all greed based, but it sure seems like it.

      Now is the time to Legalize Marijuana in California! The only thing required is the $ for signature gathering. Join the discussion at http://savecannabis.org/JackHerer2014 and help us end Prohibition in California in 2014!

      Best Regards,
      Dave Hodges

  8. I got sucker punched by Ariel Loveland, owner of Elemental Wellness in San Jose. He was just found guilty by a jury of peers for assault.

    I don’t mind the clubs, but I would like to see tighter control on who can own/operate one. The little mermaid hired the best lawyer he could (Gilroy City Council member Perry Woodward) to try and get him off scott free. Perry managed a bunch of legal maneuvers for 2 years, kept delaying the case until finally the judge had to order trial. It was a 5 day trial. I’m sure this was a $20,000 case for Perry, and god knows how much it cost the county to prosecute Loveland. (not to mention, the lives of 12 jurors were interrupted for a week over his bulljosh).

    What bothers me about this is, in the alcohol board laws there are strict rules about who may/may not hold a liquor license. Felons and people that commit crimes of moral turpitude may not acquire a liquor license. There’s good reasons for this, but mostly because you don’t want to give the financial power to tie up the courts to a twit with money.

    Hopefully with this decision, San Jose will do the right thing and apply alcohol board laws verbatim to their pot club laws, so we can “weed” out the undesirable elements.

  9. The assertion that medical marijuana is a farce is unfounded because there are legitimate patients.  However abuse is widespread since a papercut is enough to merit a prescription.  When I was in San Jose I saw a man rolling a joint outside of Starbucks and proceed to light it up and smoke while people were enjoying their coffee.  The skunky smell was around nearly every corner in downtown and I thought this is really lame part of the culture.  There is no respect for the rest of the public.  As a father and an uncle to several children I’ve become less tolerant of many aspects of the legal marijuana movement. In the same way no one wants to be forced to be around cigarette smoke no one should be forced to breath in pot smoke, especially young children.

    However I don’t see regulation as a panacea to the problems that are associated and directly cased by the marijuana industry.  I don’t think regulation is the answer.  I think making the sale and profit from marijuana illegal is the answer. Not the plant itself.  Not the possession, or consumption, but the sale and profit.  The fact is there are too many criminal elements entrenched in the profit of it that all that would happen through legalization and regulation is that criminal ventures would be in a position to legitimize themselves and fund other illicit activities.  Sam Liccardo prosecuted Mexican Cartel members in Southern California, or at least tried to.  He knows the score very well and I think he has become corrupted somehow.  Perhaps not in the traditional sense but perhaps philosophically.  Maybe someone should do some sleuthing into his finances just to be safe.

  10. About the decision of supreme court, It looks very odd and is obviously not going help the situation, according to dr note this would make more complications in this case.
    And what is this medical thing in it, wouldn’t it harm after consumption.