Massachusetts becomes the 18th medical marijuana state; now comes the difficult work of implementation

By: Kris Hermes, Americans for Safe Access

Earlier this month, an overwhelming sixty-three percent of Massachusetts voters approved Ballot Question 3and, in so doing, became the country’s 18th state to pass a medical marijuana law. Massachusetts is now the latest in a growing number of states that are choosing to implement their own public health laws, regardless of any reluctance by the Obama Administration to develop a comprehensive federal policy on medical marijuana.

But, getting Massachusetts voters to turn out in sufficient numbers to pass Ballot Question 3 was only the first step in what is expected to be a lengthy implementation process.

The Massachusetts Department of Public Health (DPH) has 120 days after the law is enacted on January 1, 2013 to design regulations that will help DPH implement the law. However, until the program is up and running, patients can still go see their physician to discuss medical marijuana and, after January 1st, can obtain a recommendation for its use. That way, patients can be protected, without delay, from any unnecessary law enforcement incursions.

The new law restricts qualifying patients from possessing “more marijuana than is necessary for the patient’s personal, medical use, not exceeding the amount necessary for a sixty-day supply.” Therefore, in addition to developing a patient registration process in the first 120 days, DPH is tasked with using “the best available evidence” to determine what might constitute a 60-day supply of medical marijuana.

DPH then has until January 1, 2014, one year after enactment, to license distribution facilities, called “nonprofit medical marijuana treatment centers,” thereby making medical marijuana accessible to patients throughout the state. The law requires that in the first year DPH must license at least fourteen treatment centers, one for each county in Massachusetts, but no more than five per county and no more than 35 for the entire state.

The law tightly restricts cultivation in the state, requiring licensed treatment centers to produce their own supply and, generally, preventing patients from cultivating themselves. However, patients who can show a financial and/or physical hardship can apply to DPH to grow their own, once those regulations are established.

Because it’s important to involve patients throughout the implementation process, Massachusetts Patient Advocacy Alliance (MPAA), the group largely responsible for the law’s passage, will be embarking soon on a campaign to educate patients and ensure they are contributing to the development of statewide regulations. MPAA is currently preparing an FAQ for patients and concerned Massachusetts residents. Educational material will also be accessible at MPAA’s website: www.MassPatients.org, and yet-to-be-scheduled public education events are being planned over the next few months.
According to MPAA’s Matt Allen:

We’re here to make sure that patients are fully involved in the implementation process, and since this is a public health issue we want to make sure that patients’ needs are recognized and respected.

MPAA is also continuing to build its base of advocates in order to begin the process of working with DPH and the state legislature so that the law will work effectively. If you’re a Massachusetts resident and want to get more involved in the law’s implementation, go to the MPAA website and fill in your contact info. Together we can make the law work for Massachusetts patients!

Harnessing Our Power for Victory - Americans for Safe Access National Medical Cannabis Unity Conference

 

We are pleased to announce Harnessing Our Power for Victory – Americans for Safe Access National Medical Cannabis Unity Conference, taking place February 22nd - 25th at the Mayflower Renaissance Hotel in Washington, D.C.

Americans for Safe Access and our allies will fight even harder for safe access in 2013. This is our chance to show the Obama Administration and the new Congress our strength in unity – and to make our voice heard like never before in the nation’s capitol! The conference is a chance to network with other activists from around the country, attend panels and workshops to improve your skills and increase your knowledge, and to engage in direct citizen-lobbying efforts in the halls of Congress on Monday, February 25th.

Please use the links below to find more information regarding the conference. We will be updating the website weekly to include information on scholarships, exhibitors, sponsorships and the program schedule, so keep checking back!

Registration for the National Medical Cannabis Unity Conference

Information regarding the different types of conference registration

Travel & Accommodations for the National Medical Cannabis Unity Conference 

Information on lodging accommodations as well as traveling to the conference and around D.C.

Making the Most Out of Your Conference Experience

Cast your vote for panel suggestions and outstanding activists to be awarded at the conference.

Funding Your Way to the National Medical Cannabis Unity Conference

Information on funding your trip

Call for Abstracts Information & Application Page for the National Medical Cannabis Unity Conference 

Call for Abstracts

Four Ballot Initiatives Fail to Secure the Rights of Medical Marijuana Dispensaries to Exist in Four San Diego Cities While a Landmark California Appellate Court Decision Defines Dispensaries as Legal

By: Terrie Best  - San Diego Americans for Safe Access

San Diego CA - Hidden in the clouds of vapor in some reporter’s desk is a story whose magnitude was almost missed in the hubbub of the 2012 presidential election. On October 24th, 2012, the Fourth District Court of Appeals in San Diego overturned a medical marijuana dispensary operator’s guilty verdict, ruling that storefront dispensaries are legal under certain circumstances. The published decision created case law with clear direction on those circumstances, thereby defining the legality of store front medical marijuana dispensaries.

The People v Jovan Jackson appellate decision emphatically rejected the idea that medical marijuana dispensaries are illegal; it also provided elements for a defense to dispensary operators who are often victimized by law enforcement unwilling to investigate whether the operators they target abided state medical marijuana law.

The San Diego District Attorney (DA) and failed mayoral candidate, Bonnie Dumanis’ modus operandi has been to charge all dispensary operators with crimes, making no attempt to apply the state’s medical marijuana laws in her investigations. She relies on her own interpretation of the law (interpretations that have been squarely rejected by appellate courts throughout the state), questionable tactics designed to keep evidence from jurors’ eyes, and continues to prosecute case after case, at great public expense.

However, if the comments of some of San Diego’s legal community who have read the Jackson appellate decision bear out, we should see a change in practice and a more cooperative DA when it comes to criminal prosecutions for distributing marijuana.  Certainly it would be more cost effective for the DA to use the appellate court’s decision to establish an investigatory procedure for determining if an alleged marijuana distributor is complying with California medical marijuana law before embarking upon a costly criminal prosecution.

Joe Elford, Americans for Safe Access Chief Counsel and the attorney who argued the appeal, has issued the following statement regarding the Fourth District’s ruling. "This landmark decision not only recognizes the right of dispensaries to exist and provide medical marijuana to their patient members, it also grants a defense for those providers in state court. By rejecting the Attorney General's argument that patients who utilize dispensaries must collaborate, or 'come together' in 'some way' to cultivate the marijuana they purchase, the court is establishing a clear standard for dispensaries across the state."

It seems apparent the appellate court recognized the need for a framework in which dispensaries can operate under state law. Because San Diego’s law makers have refused to hammer out that framework, the appellate court has done it for them. We can only hope the DA will take heed.

Lance Rogers who defended Jovan Jackson at trial had this to say in an on-camera interview: “The California appellate court gave an historic ruling which said three things.  1. Under state law it is legal to operate a store front medical marijuana dispensary.  2. It is legal to sell medical marijuana for medical purposes 3. If you are a sick and dying medical marijuana patient you don’t have to grow your medicine yourself, it is perfectly acceptable to buy it from somebody else.”

Melissa Bobrow, a local attorney issued this written statement in regards to the ruling, “This was an important decision for the legal community. We can only know the law when people like Jovan Jackson and his attorneys fight. We have another piece of the medical marijuana law puzzle in place - for now.”

Much blood, sweat, tears and grassroots activism has gone into the effort of patients in San Diego and its various municipalities to simply convince lawmakers to define zones where dispensaries can exist. This effort has been met with push back by lawmakers and law enforcers every step of the way. Obstacles from lawsuits, to ignoring the Medical Marijuana Task Force recommendations, to outright banning and simply refusing to open zones for dispensaries have thwarted San Diego patients for years.

Illustrating how organized and focused San Diego advocates have become, ballot initiatives were in place in Imperial Beach, Lemon Grove, Solana Beach and Del Mar in the 2012 election in hopes some of these cities would provide one or two zones in which safe access to medical marijuana could exist.

All the initiatives failed.  Imperial Beach’s Yes on S campaign even had politicians against them who launched a No on S campaign using the San Diego DA’s very narrow interpretation of state law to spread mistruths that dispensaries are illegal as well as other propaganda.

Another local medical marijuana attorney who was present at oral arguments, Jessica McElfresh said “By stating clearly the legal requirements to operate a medical cannabis collective and to receive an affirmative defense in criminal court for doing so, the ruling in People v. Jackson is a watershed not only for medical cannabis patients in San Diego, but also for them statewide.  However, the ruling is particularly welcome in San Diego, not only because the case originated here, but also because the San Diego District Attorney’s Office has aggressively prosecuted medical marijuana patients according to its own narrow interpretation of the law.  Hopefully, that will now cease.”

With established elements of defense for dispensary operators now in place from the appellate ruling, one could argue we have statewide legal guidelines for how dispensaries should operate to be entitled to their defense should they need one.

If the DA then chooses to raid and prosecute a dispensary operator who has those defense elements in place and can readily avail the investigators of them, will the DA choose to prosecute anyway, thereby making the procedure the punishment and clogging the courts with costly prosecutions doomed to failure?

What the DA’s office asserts on the Jackson decision is not very encouraging: “We continue to embrace our interpretation that the Legislature limited the protected activity to the cultivation of marijuana for medical purposes and not large-scale distribution of marijuana,” said Steve Walker, a spokesman for the office.

In response to Walker’s statement, San Diego criminal defense attorney, Bahar Ansari, had this to say: “It appears that the DA’s office plans to ignore the Jackson court’s ruling and continue its flagrant disregard for the will of California voters, the medical marijuana laws as enacted by our state legislature, and the rulings of our state courts of appeal.  In doing so, the office offends our common sense notions of justice and fairness. Just as importantly, in my opinion, it violates certain Rules of Professional Responsibility imposed by the State Bar of California on all prosecutors, namely to seek the truth and ensure that justice is done.”

An attorney and medical marijuana advocate who watches from northern California, Mark Wuerfel said “The Jackson decision is instructive in both the manner in which qualified patients must act to conform to the requirements of State law to be entitled to immunity from prosecution; and also to underscore the manner in which prosecutors, such as those at the San Diego District Attorney’s Office, maliciously and wrongfully prosecute qualified patients at the taxpayers’ expense to pursue their misguided personal agendas to engage in a county-wide vendetta that unequivocally violates the legal and civil rights of such qualified medical marijuana patients.”

Stephen Whitburn, who was a member of the San Diego Medical Marijuana Task Force was asked for his thoughts and had this to say, “A key problem is that the state laws and guidance on medical marijuana are ambiguous enough that different interests can interpret them in different ways. Our state government must do a better job of spelling out what is allowed under state law. In the meantime, I think it would be sensible for law enforcement to take a moderate stance, prosecuting clear and egregious violations of state medical marijuana laws but refraining from prosecuting the types of cases that are increasingly being rejected by juries and the courts. The real losers in this ongoing tug-of-war are cancer, AIDS and other patients who truly find relief from medical marijuana but whose access to it is impeded by those prosecutors who choose to impose their own very restrictive interpretation of what the state law allows.”

With guidelines in place through People v Jackson as well as several others decisions, it will be interesting to see how the DA will attempt to make criminals out of patients now. As for zoning, how long can cities refuse to open zones?   And, if they refuse to open zones forcing dispensaries to operate outside of zoning, will their very operation be a criminal act or, with the addition of the Jackson ruling to the plethora of case law supporting rights of patients and dispensaries, will operating a dispensary now become a civil issue?

Regardless, The Jackson’s decision puts medical marijuana patients and their providers just that much closer to being free from unjustified arrest and prosecution.

All members of the community who weighed in with their thoughts thanked Jovan Jackson for fighting.

Larry Sweet, another Medical Marijuana Task Force Member was solemn when he said, “It is by design that we may find compassion in the Appeals process when the lower courts are ruled by personal and political interests. I never doubted Jovan or his courage."

Further information:
Landmark appellate court ruling: http://AmericansForSafeAccess.org/downloads/Jackson_Appeal_Ruling.pdf

Jackson appeal brief filed by ASA: http://AmericansForSafeAccess.org/downloads/Jackson_Appeal.pdf

Attorney General reply brief: http://AmericansForSafeAccess.org/downloads/Jackson_Appeal_AG_Reply.pdf

ASA reply brief: http://AmericansForSafeAccess.org/downloads/Jackson_Appeal_Reply.pdf

Medical Marijuana Initiatives San Diego Results

Final Results for all the medical marijuana initiatives in San Diego County:

PROP H - CITY OF DEL MAR Regulation Med Marijuana
Reporting 5 of 5 at 100.0% counted.
NO 1053 56.40 %
YES 814 43.60 %

PROP S - City of Imperial Beach Med. Marijuana Dispensaries.
Reporting 12 of 12 at 100.0% counted.
NO 2869 59.76 %

YES 1932 40.24 %

PROP T - CITY OF LEMON GROVE Marijuana Dispensary Ordinance
Reporting 14 of 14 at 100.0% counted.
NO 3570 61.31 %
YES 2253 38.69 %

PROP W - City of Solana Beach Med. Marijuana Dispensaries
Reporting 14 of 14 at 100.0% counted.
NO 3193 62.92 %
YES 1882 37.08 %

Bilbray Endorses Medical Marijuana Initiative in Imperial Beach

By: Eugene Davidovich

Imperial Beach, CA – Incumbent City Council member Brian Pat Bilbray today, issued an official endorsement in support of Proposition S a voter initiative slated to appear on the November 6th ballot in the City.  

"With my sister having to use medical marijuana to treat her stage three melanoma this issue is very emotional and personal for me and my family. If the federal government is not going to take it up upon themselves to start regulating, allow the FDA to actually look at it so it can be put in pharmacies, then it is up to the states to do exactly what they have done,” said Bilbray. 

If passed Prop S would repeal the city’s current prohibition on medical marijuana dispensaries and replace it with strict zoning and operational requirements that would allow for a limited number of patient collectives and cooperatives to open in industrial and commercial zones of the city. Those that open would have to meet all operational and zoning requirements laid out in the measure including video cameras, centrally monitored alarm systems, overnight security, as well as strict non-profit operation.

“Fact of the matter is, it does work, patients do need it I have seen it firsthand. Patients deserve the right to safe local access in Imperial Beach. It’s time to end the rhetoric and let reason, science, and evidence drive our public policies. I will be voting Yes on S and encourage all my constituents to do the same,” Bilbray held.

Bilbray’s endorsement joins an expanding and bipartisan list of endorsements which include City Council candidate Erika Lowery, Democratic Party of San Diego County, Green Party of San Diego County, the County’s Libertarian Party, as well as the San Diego and Imperial Counties Labor Council AFL-CIO.

Next Tuesday, voters will decide whether to allow the continued criminalization of the most vulnerable citizens in Imperial Beach to continue through the draconian ban, or protect the sick and dying through strict zoning and operational requirements in Proposition S.

Advocates are confident that once presented with a choice, voters will do the right thing and choose Safe Access instead of a ban, resolving this issue in IB once and for all, and allow qualified patients safe, local, reliable access to a medicine that in many cases is their one and only alternative.

More Information:

YES on S Website: www.safeaccessib.org

Yes on S Facebook: www.Facebook.com/YesOnS2012 

Read Prop S – http://www.safeaccessib.org/read-the-initiative/