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San Bernardino County has the worst record in dealing with medical marijuana
By Hempology | September 26, 2007
Inland Valley Daily Bulletin, CA
25 Sep 2007
Will Bigham
GRAY AREAS
Conflicting Laws Lead to Arrests, Confusion
California voters passed Proposition 215 – permitting the medical use of marijuana – more than a decade ago.
In some parts of the state, use of the drug is readily accepted by local governments and police departments, with dispensaries and doctors specializing in marijuana openly advertising their businesses.
Such is not the case in the Inland Empire, where medical-marijuana users, dispensers and growers generally face hostile local governments and police departments.
In San Bernardino County, sheriff’s deputies are instructed to arrest medical-marijuana users for possession even if they produce a state-sanctioned ID card proving their status as a medical user.
Medical-marijuana dispensaries that have opened without the blessings of local governments have been raided, sued and faced with ordinances barring them from those communities.
Much of the chaos surrounding medical marijuana in the Inland Empire results from ambiguous state laws, conflicts between state and federal law, and the relative newness of the program.
Following Federal Law
Although the laws governing the medical use of marijuana were passed at the state level, they are largely implemented and enforced at the county level.
Among local counties, San Bernardino County has the worst record in dealing with medical marijuana, activists say.
“I have heard numerous stories about tough cops in San Bernardino County,” said Dale Gieringer, director of the California branch of the National Organization for the Reform of Marijuana Laws.
“People commonly hear that story from the cops: ‘I’m going to arrest you and let the courts sort it out. We enforce federal law here.”‘
The federal government recognizes no medical use for marijuana and does not acknowledge California’s medical-marijuana program.
Senate Bill 420, passed in 2003, established a state system that requires county health departments to issue ID cards to those authorized to use marijuana for medical reasons. Los Angeles and Riverside counties have set up their systems; San Bernardino County has not.
The system was designed to prevent medical-marijuana users from being arrested.
San Bernardino County does not recognize cards issued by neighboring counties, and sheriff’s deputies arrest medical-marijuana users who would not be arrested in Los Angeles or Riverside counties.
“The sheriff believes that marijuana is illegal,” said Cindy Beavers, a spokeswoman for the San Bernardino County Sheriff’s Department. “There is a federal law that prohibits the manufacturing, sale or use of marijuana, and he does not allow his deputies to accept the medical-marijuana cards.”
Lanny Swerdlow, director of the Marijuana Anti-Prohibition Project, was an early advocate for medical marijuana. The Palm Springs resident is particularly knowledgable about medical marijuana in San Bernardino and Riverside counties.
San Bernardino County was ready to issue medical-marijuana ID cards in early 2006, Swerdlow said, but the effort was halted by the Board of Supervisors when the county joined San Diego County’s lawsuit against the state, filed because of the medical-marijuana program’s conflict with federal law.
Patients arrested in San Bernardino County who have a doctor’s recommendation are able to present evidence of that in court, said San Bernardino County Deputy District Attorney Michael Abacherli.
“As long as they have a doctor’s medical recommendation, we do not prosecute those cases, because they are excepted,” he said. “However, if the recommendations are not in proper form, or they have more than the allowed amount, then we do ( prosecute ).”
The county’s Probation Department takes the position that anyone on probation cannot legally possess marijuana even if they have a doctor’s recommendation.
Dispensaries Face Resistance
Medical-marijuana users can legally grow marijuana for their own use, but setting up such an operation takes space, time and money that many users do not have.
Most depend on other sources. The most common are medical-marijuana dispensaries, which provide products to users who have a doctor’s recommendation.
Until about two years ago, there were no dispensaries in the Inland Empire.
When they started arriving – in Claremont, Pomona, Norco and Corona – they were met with immediate resistance from local governments.
In those four cases, the dispensaries initially approached cities, seeking business licenses and were turned away. They were told that no regulations were in place allowing that type of business.
“They come and apply for a business license and try to do the right thing, and the city doesn’t allow them to,” Swerdlow said.
Thinking they had state law on their side, the dispensaries opened anyway. All four now are mired in legal battles with the cities in which they opened.
The Claremont and Norco dispensaries are closed pending the outcome of court cases. The dispensary in Corona was raided and shut down in July by federal authorities. And the operator of Pomona’s dispensary, Dave Touhey, was arrested in June during a raid of his dispensary.
As the legal issues hit front pages last year, most local cities passed bans and moratoriums on dispensaries, effectively blocking any possibility of others opening in the area. Most recently – just last week-the Norco City Council approved an outright ban on medical-marijuana dispensaries in that city.
The exceptions are Diamond Bar, which allows one dispensary, and Claremont, which in July gave initial approval for a dispensary to open in the city.
Abacherli said many of those who run dispensaries claim to be doing so out of compassion. A closer examination of their finances indicates that’s not the only reason, he said.
“A lot of these people are profiting off of ill people,” he said. “We’re after the people who are taking advantage of those people, or taking advantage of the laws as they stand on the books right now.”
Ambiguity Creates Problems
In discussing the state’s medical-marijuana program, activists, police and government officials can usually agree on only one thing: The state’s medical marijuana laws are poorly written.
Proposition 215, approved by voters in 1996, stated in general terms that people who have a medical need for the drug can use it legally. The full text of the law runs less than 400 words.
State officials quickly learned that the brevity of the law was problematic for medical-marijuana users and police, who in the absence of clear direction from the state were clashing over the most basic rights of medical-marijuana users.
A law designed to clarify the proposition, Senate Bill 420, was passed in 2003. It clarified the amount of marijuana a person can possess for medical purposes, and set guidelines for an ID-card program.
But much was still missing: guidelines for the operation of dispensaries, and rules for cultivating the drug in large quantities for medical purposes.
The ambiguity has allowed cities and counties to selectively enforce the guidelines of the program, medical-marijuana activists say.
The dispute is made worse by the state law’s conflict with federal law, which is often cited by local governments needing a reason to crack down on medical marijuana.
“We believe that the law is poorly written,” said San Bernardino County sheriff’s Lt. Greg Garland, head of the department’s Narcotics Bureau. “It makes it very unclear what’s legal and what’s not legal.
“For people who are trying to work within the parameters of what the state is trying to do for the citizens, it doesn’t give them enough direction on how to legally obtain and use marijuana.
“On our side of the fence ( police ), it doesn’t specifically state how we determine if somebody is making a profit. How do we show that they are or they aren’t?”
One apparent casualty of the law’s ambiguity is Paul Shaw, arrested in May along with two other men in connection with a warehouse in Azusa that was filled with marijuana plants.
In a jailhouse interview shortly after his arrest, Shaw said the marijuana was being grown strictly for medical purposes. It was sold and sometimes given away to only dispensary operators, individual users and caretakers.
Darrell Kruse, former operator of a dispensary in Claremont, said he once purchased marijuana from Shaw’s warehouse.
Shaw and the other men running the grow operation believed that because the marijuana was being distributed only to medical users, they were legally permitted to grow it.
But because S.B. 420 does not directly address the limits that can be placed on growing medical marijuana, Shaw is facing felony cultivation charges.
Activists say that for dispensaries, there are few other viable alternatives to acquire marijuana, making a large-scale grow operation a natural development in the still-young medical marijuana industry.
“There is no such thing as a legal grow house, so of course medical-marijuana dispensaries are getting their marijuana from illegal sources,” said Swerdlow. “The government is creating the problem.”
[sidebar]
ABOUT PROPOSITION 215
The following is the text of Proposition 215:
Section 1. Section 11362.5 is added to the California Health and Safety Code, to read:
11362.5. ( a ) This section shall be known and may be cited as the Compassionate Use Act of 1996.
( b ) ( 1 ) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
( A ) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine or any other illness for which marijuana provides relief.
( B ) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
( C ) To encourage the federal and state governments to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
( 2 ) Nothing in this act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for non-medical purposes.
© Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
( d ) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
( e ) For the purposes of this section, primary caregiver means the individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health or safety of that person.
Sec. 2. If any provision of this measure or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the measure which can be given effect without the invalid provision or application, and to this end the provisions of this measure are severable.
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