Features & Columns

Green Revolution

San Jose searches for a sane medical marijuana policy as Sacramento and Washington change all the rules
RELIEF WORKERS:San Jose Medicinal Group operating director Shannon Rocha (left) and group director Raul Galvan sit in the waiting area of their downtown San Jose pot club.

SHORTLY AFTER walking into the halogen-lighted courtroom, Lauren Vazquez felt the ache of a debilitating migraine begin to creep up. At the time a law student at Santa Clara University, Vazquez had made the four-hour drive to Redding from her home in San Jose to assist at a court hearing.

Suffering from acute light-sensitivity and intense migraines, she had been a medical marijuana patient for several years. As she sat under the bright lights that morning, she struggled to maintain her composure throughout the three-hour hearing as increasingly intense waves of pain and nausea crashed over her.

"By the time it was done, I could barely walk out of the courtroom," says Vazquez, interim director of the local branch of Americans for Safe Access (ASA), a medical cannabis group. "What was I supposed to say to the supervising attorneys, 'Excuse me while I go outside to the parking lot and smoke some marijuana, so I can come back in and be of assistance to this case?' That's not really something you can say.

"I barely made it out to my car, and fortunately I was able to medicate in my car and start to feel better," she recalls. "I stayed there for about an hour, and then I was able to drive again."

She made it as far as a nearby shopping center before she was forced to pull over as another episode of sickness coursed through her body.

"That's what migraine headaches do, they make you nauseous and cause you to throw up. So there I am, sick in the parking lot," she says. "I wasn't in any condition to go to a pharmacy and stand in line. Once you are already into a migraine and are already at the nausea stage, you can't keep down a pill. That's not going to work."

Vazquez, 27, now holds an SCU law degree with a focus on drug policy and was recently admitted to the bar. In October of last year, she and 50 or so members of the local medical cannabis patient community officially formed the first Silicon Valley branch of ASA.

Later that month, San Jose City Councilmember Pierluigi Oliverio announced that he was proposing an ordinance to regulate and tax the cultivation and sale of medical marijuana at dispensaries within San Jose's city limits.

That's when the smoke hit the fan, so to speak.

"At that time, there was only one dispensary operating in San Jose, and prior to that there had been none for almost 10 years," Vazquez says. Two weeks ago, she went on a tour of San Jose's medical marijuana dispensaries, introducing herself and ASA to local operators and patients.

"Between now and then, six more have opened," she says, "I can't keep up." '

The number of cannabis dispensaries in San Jose has now expanded to around 20—mirroring a trend throughout California that has put the issue of medical marijuana in headlines nationwide.

"Our timing was just right," Vasquez says. "We got together right before Pierluigi put his request into the rules committee, and we've been growing since the first meeting."

On Wednesday afternoon (Jan. 27), the San Jose City Council's Rules and Open Government Committee will begin seriously discussing the details of an ordinance, and set a date for it to be heard by the full City Council. The proposal calls for medical cannabis establishments to be allowed in specifically zoned locations in San Jose. It references U.S. Attorney General Eric Holder's announcement that the DEA will no longer prosecute medical marijuana users in legalized states, 1996's California Proposition 215, the "Compassionate Use Act" and 2004's Senate Bill 420, which regulates how much medical marijuana patients and caregivers may grow and possess.

While Oliverio's proposal calls on city staff to model the ordinance after similar laws enacted recently in San Francisco, Oakland and Santa Cruz, it contains one innovation: it would also institute a minimum 3 percent "cannabis business tax." It earmarks the money generated—projected to be at least $1 million—to the San Jose Police Department and to street maintenance. Released on Oct. 27, the proposal also asked for a $10,000 permit fee, significantly more than other medi-pot-friendly California cities.

With dispensaries popping up around the city—many of which are begging to be taxed—the ordinance may be attractive to a deficit-plagued City Council.

GREEN BUSINESS: The lobby at Harborside Health Center on Ringwood Road in San Jose. This large collective got its start in Oakland before recently opening up its first South Bay branch.

Show Us the Money

The city's Planning Department is currently trying to figure out the timetable for the tax plan and new regulations. After Wednesday's discussion and public comments are heard, Oliverio hopes that the rules committee will agree to bring the ordinance to the council for a vote.

"At the first rules committee meeting where I presented this in October, we had really great testimonials from people who were actually ill," Oliverio says. "There was one women who lived right across the street from [former San Jose mayor] Susan Hammer. She looked very disheveled; she was battling cancer. That is the face of medicinal marijuana."

Vazquez says that she and ASA want to be present from the beginning of these negotiations, working with the city to give feedback and dispel rumors. ASA Silicon Valley does not want San Jose to become another Los Angeles, she says, where hundreds of medicinal marijuana dispensaries have opened while the City Council has been stuck in a yearlong quagmire of negotiations, trying to establish an ordinance.

"What we want to see is San Jose become a model regulator of medical cannabis, where it works for everyone: the patients, the city, the community," Vazquez says. "San Jose is in unique position. They've seen what's worked, and what's not working. San Jose can learn from all of that and draft the best regulations moving forward and really become a model for the state, and provide real compassion for patients."

There seems to be somewhat of a hierarchy forming in the landscape of medical marijuana dispensaries and collectives that have materialized in the last three months. Some, like San Jose Medicinal Group downtown, and Pharmers Health Center Cooperative Inc., on the west side, have strict security and work out of professional-looking office settings. Their front room waiting areas have the feel of doctor's offices, with nice art and plush armchairs that create a welcoming environment for their patients, some of whom come in wheelchairs or aided by walkers.

A few other locations around the city, however, seem decidedly more slapped together. Some of these appear to service a younger clientele—including some dodgy-looking characters. Entering several of these locations, the scent of marijuana smoke permeates their lobbies.

On Jan. 14, the city's Department of Planning, Building and Code Enforcement released a compliance order against three San Jose medical marijuana dispensaries: Pharmers Health Center Cooperative Inc., San Jose Cannabis Buyers Collective (SJCBC) and Medileaf Collective. The order said that Code Enforcement had received complaints about these three locations, that they were investigating their practices and would be shuttering them if they refused to stop selling medical cannabis.

Pharmers, SJCBC and Medileaf were all visited by code enforcement officers last week. Though the officers poked around and asked questions, the collectives say they have not received citations of any kind.

"We haven't issued any orders yet, because were still in the investigative stage," says Code Enforcement official Michael Hannon. "I think we're up to seven businesses that we've received complaints [about] and are investigating currently, but we anticipate that compliance orders will probably be prepared and sent out to these businesses soon."

Andy Schwaderer of Pharmers Health Center Cooperative says that Hannon and several other enforcement officers had stopped by twice.

"They were supercordial and really nice, and we were really forthcoming," Schwaderer says. "We showed them everything, and we told them that we are working with the City Council."

Vazquez wonders if issuing the compliance order was just a scare tactic by the city to stop even more new dispensary locations from opening up.

"It might be their way of rattling a big stick and getting their story in the paper so that more people don't open up here," she says. "San Jose has attracted a lot of operators very fast, since frankly it's a new market that has been ignored and completely underserved."

The compliance order says that because these collectives are charging a fee for something that is not a permitted use under the city's zoning ordinances, they must cease operations within 30 days.

Oliverio says that because collectives operate these dispensaries, they must have some way to conduct business. Therefore, he says, this code compliance order is unrealistic.

"The idea is that it's a collective," Oliverio says. "Someone has the right to grow [cannabis] as part of the collective. Now the question is, how am I supposed to trade? Do I bring some shells and say, 'I have some shells, could you give me that?' I understand that it has to pertain to state law, but I think there has to be a way for someone who has permission from a doctor, who has a painful disease, to be able to get it."

Hannon, however, says his department will be going forward from a strictly land use perspective. He points out that there has not been any evidence of criminal activities around San Jose dispensaries. The reports his office has gotten from neighboring businesses simply state that the dispensaries exist, he says.

"At the end of the day, if they are selling, that is not something that is currently permitted," Hannon says.

BEYOND BROWNIES: A spread of medical-marijuana-containing edibles displayed at the San Jose Cannabis Buyers Collective on Monroe Street in San Jose.

Legalize It—or Face a Lawsuit

The medical marijuana community here in San Jose insist they are ready to fight to stay open for their patients.

"Litigation is very likely," Vazquez says. "We feel they should be allowed to operate and not be cited and fined, because that's really how it happens. They [the city] don't come in with cops and guns, they come in with code enforcement and citations and fine you out of business.

Vasquez says the operators have legal teams that are prepared to take on the city and possibly win, or "drag out litigation and create costs for the city that are really not worthwhile."

She says they recognize that that is an extreme measure, and would prefer to be tolerated unless there are more specific complaints about bad behavior.

Whatever the outcome here in San Jose, it's undeniable that the fight to legalize medical cannabis has gained more steam in the last few weeks and months than it has seen in the last decade.

"Ultimately, I fully believe that San Jose is going to do the right thing," Schwaderer says. "I think San Jose can really define how this type of business should be in a way that is moving forward, doing it in a pragmatic way that really benefits the community. Not in the way it's been in the past 10 years where everybody is scared about it.

"We are in full support of San Jose giving a specific tax, to make sure they get some of that money," Schwaderer says.

According to a recent Washington Post–

ABC News poll, eight in 10 Americans now back medical marijuana. On Jan. 18, New Jersey became the 14th state in the union to pass legislation allowing seriously ill patients access to medicinal pot. On Jan. 21, the California Supreme Court got rid of limits on how much medical marijuana a citizen can own.

"Things are happening fast, and San Jose really has the opportunity to do something that can be a model here," Vazquez says.

PIONEER WOMAN: Valerie Corral co-founded WAMM, one of the nation's first medical marijuana dispensaries.

Feds Back Off

Friday's court decision on medical cannabis marks a sea change in U.S. government policy regarding California's Prop. 215

By Jessica Lussenhop

THE MORNING of Friday, Jan. 22, was a long time coming for Michael Corral. As he walked up to the doors of the federal courthouse in downtown San Jose, members of the Wo/Men's Alliance for Medical Marijuana, a collective he helped to found in Santa Cruz in 1996, were slowly gathering outside the glass doors. Some leaned on canes and walkers; one member had a seeing-eye dog, another a wheelchair.

"It's a draw. They didn't win, we didn't win," Corral said. "This has gone on so long, it was time for it to end."

The group moved slowly through the metal detectors and to the elevator doors up to Judge Jeremy Fogel's U.S. District Courtroom on the fifth floor. As the doors closed behind them, a security guard joked, "Toke-up party afterwards!" Compared to the eight years it took to get to this point, the hearing was uneventful—very brief, just a few minutes long. Judge Fogel looked out over the assembled group of about 30 WAMM patients and supporters and said, "It's rare that dismissed-case management draws this big a crowd."

But this was no ordinary case dismissal. Not only was the federal government formally standing down from its defense of a 2002 raid on WAMM property by DEA agents, the settlement was also a formal recognition of Attorney General Eric Holder's October 2009 memorandum titled "Medical Marijuana Guidance," and the sea change in federal policy that it represents. Attorney Ben Rice, who has represented WAMM for the last 15 years, declared the decision a victory.

"Based on that new philosophy, if you will, by Eric Holder, [Judge Fogel] has urged us to resolve the case," he says. "It's a terrific win for WAMM as well as the people of this community."

WAMM formally became a nonprofit in 1996, just after the passage of Prop. 215. Despite the perceived protection WAMM got under statewide legalization of medical marijuana and local deprioritization ordinances, in the early morning hours of Sept. 17, 2002, 30 federal DEA agents drove up to Michael and Valerie Corral's property in the Santa Cruz Mountains, arrested them both and cut down 167 marijuana plants just before harvest.

At the time, the garden provided for the 250 ill and indigent WAMM patients who received a weekly allotment of the drug for free. Although the Santa Cruz community rallied behind the Corrals, the raid decimated the collective's membership numbers and donations.

Attorney Rice, along with Santa Clara University law professor Gerald Uelmen and eventually the American Civil Liberties Union Drug Law Reform Project, put together the lawsuit against then–Attorney General John Ashcroft and the DEA. "The argument is that while the federal government is free to enforce their laws in our state, they can't force our state to change our laws by selectively enforcing the federal laws," says Rice. "It makes it impossible for the state to distinguish between legal and illegal marijuana use, and that's a violation of the 10th amendment."

The city and county of Santa Cruz joined WAMM in the lawsuit against the federal government.

What 'Change' Means

While the Bush administration fought to have the lawsuit tossed, the entrance of the Obama administration marked a dramatic attitude shift that came into clearer focus with the release of the October 2009 memorandum to U.S. attorneys. It stated, "As a general matter, pursuit of illegal drug manufacturing and trafficking networks should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."

A spokesman for the U.S. Department of Justice and the ACLU attorney representing WAMM, Allen Hopper, both confirm that this memorandum set the stage for the settlement.

"It was pretty clear to everyone, including the judge, that the change in policy meant it was time to talk about settling the case," Hopper says.

The settlement says in essence that the government agrees to leave WAMM alone, as long as it abides by state laws. It also agrees that should the feds renege on their promise, the lawsuit can pop right back up in Judge Fogel's courtroom and proceed. Although Uelmen acknowledges that the settlement does not establish precedent, the decision is an important milestone. "It's a level of commitment," he says.

Hopper adds, "All these decisions have been reviewed at the highest level in the Justice Department."

WAMM members themselves were less effusive in their reactions. Valerie Corral called it a "wink" from the government. "This isn't a huge personal victory for Michael and I," she said in the hallway outside the courtroom. "But we've done two things: we've helped take medical marijuana mainstream, and we've kept the case open. If they break their promise ..." "We can spank them," interrupted Michael, smiling wryly.

Medical marijuana is most definitely mainstream these days. Along with the Holder memorandum, 14 states now have medical marijuana legalization laws, and a dozen more are heading in that direction. California is ahead of the pack, of course, and District 13 Assemblymember Tom Ammiano has taken it a step further by getting a marijuana legalization bill, A.B. 390, through a state committee for the first time in U.S. history.

Although time ran out before it could make it onto the assembly floor, Ammiano plans to reintroduce A.B. 390 in early February. The bill is of interest to District 24 Assemblymember Jim Beall, though not of course without some caveats. "I'm looking at if from a health standpoint," Beall said, adding that he has not decided which way he'll vote should the Ammiano bill come to the floor of the Assembly. "I'm looking to hear from addiction-medicine doctors." Nevertheless, Beall says that with California budget woes at the top of his priorities, the potential revenue from future marijuana taxation is "a good positive." Assemblymember Joe Coto did not respond to calls by presstime.

As for the WAMM decision itself, the lawyers involved concede that it's a commitment from Obama and Holder, but nothing enforceable. When asked whether a change in administration could yank that commitment, Hopper said, "By then we'll have had these years where states have set up these procedures, the sky didn't fall, there will have been additional tax revenue to local governments. It's going to be very difficult for a future administration to say, 'Whoa, stop.' It's kind of hard to put the genie back in the bottle."