California NORML’s Dr. Dale Gieringer Wrote A Letter To Nancy Pelosi
Below is a letter that I was e-mailed by the legendary California marijuana activist Dr. Dale Gieringer. It might be one of the best medical marijuana arguments of all time. I can’t find any holes in his logic. However, I won’t hold my breath that the DOJ will back off of medical marijuana any time soon. Why is it that the feds try to just brush us all under the rug? Hopefully letters like this one below will help move the momentum:
Rep. Nancy Pelosi
US House of Representatives
Washington, DC 20515
Dear Rep. Pelosi:
We are writing to inform you about the ongoing federal crackdown on medical cannabis, which has had particularly destructive effects in the Bay Area.
The DOJ’s policy has been inconsistent, arbitrary, disrespectful of established state and local laws and regulations, and deliberately destructive of efforts to maintain a lawfully regulated market. The DOJ has arbitrarily targeted many law-abiding, tax-paying facilities that were supported by their communities, while overlooking many others that were not. At the same time, it has undermined local laws and ordinances to regulate marijuana production and distribution while offering no clear alternatives to local governments. The result has been to promote uncertainty and chaos, drive the market underground, promote criminality, and cost the state thousands of legal jobs and millions of dollars in tax revenues.
The DOJ has failed to provide a consistent policy with regards to state medical marijuana laws. In its 2009 Ogden memo, the DOJ indicated that it would not waste resources on medical cannabis facilities that were in “clear and unambiguous” compliance with state law. In June, 2011, the DOJ shifted course in the Cole memo, where it warned that it would not tolerate large-scale production facilities, regardless of state law. Subsequently, on October 7th, the four US Attorneys of California – acting at the direction of Washington, DC – announced a coordinated crackdown on the commercial marijuana industry. Enforcement actions included civil forfeiture, criminal arrests, and most notably the sending of hundreds of warning letters to landlords of medical cannabis facilities threatening them with forfeiture for allowing illegal activity on their property. The DOJ claimed to be concerned by massive illegal profiteering, but provided no evidence to document such claims in particular cases. In practice, DOJ’s tactics have varied from location to location, targeting both well-run and poorly-run facilities with seeming indifference. Meanwhile, the DOJ has actively sabotaged efforts by city and county governments to legally regulate the industry by threatening local officials with lawsuits for violating federal law. Confusingly, the DOJ has failed to provide any guidance as to what sort of state or local regulations it might deem acceptable. Even more confusingly, at hearings before the House Judiciary Committee on Dec 9th, A.G. Holder declared that the Ogden policy of respecting local law is still in effect.
(I) Targeting of Law-Abiding, Regulated Facilities
Despite the Ogden memo, the DOJ has targeted numerous well-run cannabis facilities that have been faithfully compliant with state and local laws and which were never large-scale producers or profiteers. The legal status of dispensaries varies between different parts of California, as state law gives city and county governments authority to regulate medical cannabis collectives. In some jurisdictions, such as Oakland and San Francisco, collectives are legally authorized and regulated under local ordinance; in others, such as San Diego and Orange counties, they are banned or severely restricted; in still others, there are no laws at all, leaving their status uncertain. The DOJ has understandably targeted many facilities in areas where they are opposed by local authorities, such as San Diego and Costa Mesa, where dispensaries fail to meet the Ogden memo criterion of “clear and unambiguous” compliance with the law. However, the DOJ has also targeted facilities with a record of complaint-free operation in cities with successful, long-standing dispensary regulations, including Oakland, San Francisco, Berkeley, Sacramento, Fairfax, and Arcata. In none of these cases have federal officials provided evidence of large-scale commercial production or profiteering.
Instead, U.S. Attorneys have complained that facilities are located within 1,000 feet of schools or playgrounds, and accordingly pose a threat to children. The legal pretext for action has been the Drug-Free School Zones Act, which prescribes enhanced penalties in these areas. This law was enacted before medical marijuana dispensaries existed and was intended to deter drug dealing by street traffickers to schoolchildren. In practice, all dispensaries in California require medical IDs for entry and exclude customers under 18. Furthermore, California already has a law of its own banning cannabis dispensaries within 600 feet of schools (but not playgrounds), the same distance as for liquor stores. The basis for federal jurisdiction in this matter is questionable, given that schools are typically the jurisdiction of local government, and a similar federal law banning firearms within 1,000 ft. of schools was declared unconstitutional in the Lopez decision. Furthermore, the DOJ has failed to provide any specific complaints from local residents against the dispensaries it has cited.
Following are instances in which the DOJ has run roughshod over local authority to force the closure of well-regarded facilities that were valued in their communities and operating in full compliance with local dispensary regulations.
* The Marin Alliance for Medical Marijuana in Fairfax, the longest continuously operating medical cannabis dispensary in the nation, operated without complaint since its founding in 1996. MAMM was officially recognized by the town of Fairfax and had been operating in compliance with a special use permit that laid out 84 specific conditions for its operation. In October, MAMM’s landlord received a letter from the DOJ, complaining that it was located within 1,000 feet of Bolinas Park, where there is a Little League field. This had never been a problem in the community, as it had been MAMM’s policy to close during Little League games. The Mayor of Fairfax sent a letter to DOJ (attached) strongly protesting MAMM’s closure. There is no record of any complaint by local residents against MAMM. MAMM was forced to cease operations, and the government has filed a forfeiture suit against its landlord.
* In San Francisco, the DOJ sent similar letters to several other dispensaries. all of them operating at locations approved under the city’s long-standing dispensary ordinance. One of the targeted dispensaries, the Divinity Tree, was forced by a DOJ landlord letter to close on the grounds it was within 1,000 feet of a playground. The location in question was in San Francisco’s Tenderloin District, a notorious skid row hang-out for derelicts, drunks, addicts, prostitutes, and petty criminals. The Divinity Tree had an excellent reputation among local patrons and businesses as a stabilizing force in the neighborhood. The playground was located two blocks away and around the corner so as to be completely invisible from the Divinity Tree. In the intervening space were several massage parlors, bars and liquor stores, and immediately across from the playground stood an adult theater with a marquee blatantly advertising an “erotic circus.” All of this makes nonsense of the DOJ’s pretense to have been protecting innocent children with its 1,000 foot rule.
* Three other dispensaries in San Francisco, Mr. Nice Guy, Medithrive and 208 Valencia St., received landlord letters for being too close to a school. The school in question had moved into the neighborhood three years after the dispensaries had located there. The principal of the school was interviewed as saying he had no problem with the dispensaries. At least two other S.F. dispensaries were closed on similar bogus grounds despite operating without complaints for several years. Like the Divinity Tree, all were located in accordance with city regulations. Like all dispensaries, they required medical ID’s for entrance and were not accessible to school children. As of this writing, DEA agents are actively investigating numerous other law-abiding, tax-paying San Francisco dispensaries.
* Across the Bay, the U.S. Attorney sent 1000-foot notice letters to the landlords of two prominent collectives that have been operating for years without complaint under established city ordinances. Both are well known for their active support for marijuana law reform. They are the Blue Sky Coffee Shop in Oakland, operated by Richard Lee, the renowned proponent of California’s 2010 legalization initiative, and the Berkeley Patients’ Group, one of the oldest collectives in the state, which is ideally located in a fenced lot with excellent security and parking.
* In the Eastern District of California, the U.S. Attorney targeted facilities in Sacramento that were operating in accordance with city ordinance and well regarded by the community. One of them, Sacramento Holistic Healing, had seen a precipitous drop in neighborhood crime since opening its doors (from 146 incidents in 2006 to 32 in 2010), possibly on account of the security guards and cameras that it employed. It was closed by the U.S. Attorney for being within 1,000 feet of a school. The city of Sacramento had been collecting over $100,000 per month under a medical marijuana tax enacted in 2011, but revenues have plummeted by 50% in the wake of DOJ closures.
While it is still too early to tally the total cost of the DOJ crackdown, it can be estimated that it has so far resulted in the loss of thousands of tax-paying jobs and tens of millions of dollars in tax revenues. Unlike illegal drug traffickers, legal dispensaries pay the state’s 8.25% sales tax, plus additional special taxes in certain jurisdictions, plus the regular payroll and business taxes applicable to other businesses.
The DOJ has refused to make known what, if any, state laws and regulations they might deem acceptable for dealing with medical cannabis In a meeting with Assemblyman Tom Ammiano regarding DOJ policy in San Francisco, U.S. Attorney Melinda Haag specifically declined to make policy recommendations, leaving local and state officials at a loss as to how to proceed.
(II) Federal Sabotaging of Local Regulation
The DOJ has deliberately undermined local laws and regulations aimed at lawfully controlling the marijuana market. On repeated occasions, DOJ has invoked the threat of federal prosecution to pressure local officials not to adopt laws authorizing marijuana facilities. In Oakland, Isleton and Eureka, DOJ pressured local officials not to approve licensing of large scale production facilities (even though they are currently tolerated in Colorado). In the city of Chico, DOJ pressured the city council to vote down an ordinance that would have allowed regulated dispensaries like those operating in many other communities in the state. Outside of California, tbe DOJ lobbied the governors of Rhode Island, Washington, Delaware and Vermont to scuttle state laws to allow licensed dispensaries. A Montana state legislator, Diana Sands (D-Missoula), says she is being investigated by DEA on account of her advocacy of marijuana reform.
Most outrageously, the DOJ has sabotaged the most successful outdoor cultivation regulation program in the nation, Mendocino County’s pioneering 9.31 ordinance. The county is located in the heart of California’s famous “Emerald Triangle,” where illegal marijuana growing has been a major law enforcement problem for a generation. In 2010, the Mendocino Board of Supervisors enacted county code 9.31 to allow for regulated outdoor collective gardens under the supervision of the sheriff’s department. Under the program, registered growers for patient collectives were allowed to grow up to 99 plants on condition that they submit to inspections, comply with environmental, land use and security regulations, and pay a fee to the sheriff’s department. Section 9.31 was written so as to be fully compliant with state law SB 420, which authorizes medical marijuana cultivation collectives. While growers were initially hesitant to register with the county, by its second year of operation the program had attracted enough confidence to enlist 94 participants. In 2011, the program generated $663,230 in fees for the Sheriff’s Department, which had been suffering from budget cutbacks. For the first time in memory, in 2011 California NORML did not receive a single complaint about abusive raids by the Mendocino sheriff’s department, which instead concentrated its efforts on illegal non-medical growers on public lands and elsewhere. Local officials remarked that the program was beginning to heal the rift of distrust between growers and the community. The Mendocino program proved so successful that several neighboring counties were considering adopting similar ordinances.
Confidence in the program was shattered abruptly on Oct. 14th, when the DEA raided the garden of the foremost participating advocate of the 9.31 program, Matthew Cohen of Northstone Organics. Machine-gun toting agents rousted Cohen and his wife out of their beds at 6 in the morning, ransacked their home, seized their computers and other property, and eradicated their garden in what was described as an “ongoing investigation.” The total number of plants seized – 99 – was well below the 2,000 plants that is normally considered the threshold for federal prosecution according to guidelines from the US Attorneys Office. DEA agents on the scene vilified the Mendocino program as a “sham.”
Subsequently, this January, the U.S. Attorney’s office threatened to sue the county to terminate the 9.31 program. The Board of Supervisors consequently repealed it, restoring the county’s would-be tax-paying growers to the status of illegal drug cartels. County Supervisor John McCowen predicted that the DOJ’s blackmail would “have the effect of driving medical marijuana back underground, making it more illegal, profitable and dangerous.”
The US Attorney’s office in Northern California declined to comment on the DOJ’s action, or to provide any legal guidance for local governments seeking to control or regulate marijuana cultivation.
(III) Other Counterproductive Federal Actions Against Medical Cannabis
In general, the thrust of recent DOJ policy has been to promote lawlessness and uncertainty in the cannabis trade, and to set back efforts to legally regulate, tax and control its production and distribution. The Obama administration has now closed and raided more medical cannabis dispensaries and prosecuted more medical cannabis cases than all of its predecessors. In other actions:
– The Dept of Treasury has been browbeating banks to close accounts of medical cannabis collectives, thereby forcing them to rely on more dangerous, untrackable cash transactions.
– The IRS has been denying tax-paying dispensaries reasonable expense deductions under IRS Code Section 280 (E).
– The BATF has denied medical marijuana patients the right to buy firearms, even while providing them to Mexican drug cartels via Operation Firestorm.
– The DEA has turned down a petition to reschedule marijuana for medical use, ignoring extensive scientific evidence of marijuana’s efficacy.
– The DEA continues to block licensing of a legal cultivation facility at the University of Massachusetts to conduct medical marijuana research.
– NIDA has blocked a proposed study on medical marijuana for PTSD.
We urge the Congress to put an end to the DOJ’s counterproductive, crimogenic attack on medical cannabis by changing federal law so as to afford state and local governments the authority to regulate cannabis legally.
Dale Gieringer, Ph.D.
Director, California NORML
2261 Market St. #278A
San Francisco, CA 94114
(415) 563-5858 / (510) 540-1066