On a warm, bright winter day in January, I spent a few hours driving around two neighborhoods in Los Angeles, looking at marijuana stores.
You know, marijuana stores. Where you (well, not necessarily you) can walk in and, if you can prove a doctor has recommended marijuana to you for relief of an ailment, walk out with a brown bag full of buds, pot brownies, or cannabis candy bars. Los Angeles has more than 500 of these stores. My companions on the drives were two citizen activists who didn’t like seeing so many marijuana shops and who regularly let the Los Angeles City Council know of their unhappiness.
Michael Larsen, a 43-year-old family man, is public safety director for the Eagle Rock Neighborhood Council. He doesn’t like to discuss his day job in the press, saying it has drawn too many hostile medical marijuana supporters to his work-related websites in the past.
Eagle Rock, a neighborhood in northeast Los Angeles, is visibly aging but remains dignified and distinct, with commercial areas occupied mostly by low-slung, pale old buildings housing storefront doctor’s offices, service businesses such as beauty salons and tax preparers, and independent restaurants and boutiques rather than chain stores. As we cruise a mile or so up and down Eagle Rock, York, and Colorado boulevards, Larsen points out more than 10 pot dispensaries. “Eagle Rock is about being a small community with a small-town feel, and we want to retain that,” he says.
Responding to criticisms he’s received from medical marijuana activists, Larsen insists: “I’m not being uncompassionate. I may be a NIMBY, but I’m fine with that. Eagle Rock is struggling to maintain the character of the neighborhood, for my kids or other people and their kids.” Larsen tells me about the healthy-looking young men who sometimes congregate in parking lots or on streets near dispensaries, smoking pot or blasting music. He points out one such young man entering AEC, a dispensary on Colorado Boulevard, while we are in its parking lot. He tells me about a local woman in her 80s who can’t understand what kind of world she’s living in, where marijuana is sold on her corner.
Larsen also points out some grubby-looking auto repair shops along his neighborhood’s main strip and tells me how the locals managed to curb their profusion through the city’s planning process. He talks about the auto repair shops in much the same way he discusses the pot shops. He does not think either should be completely eliminated, but he believes they constitute a blight on the neighborhood when they are too conspicuous.
Larsen and I pass one marijuana dispensary, the Cornerstone Collective, that I visited the day before. If you didn’t know it was there, you wouldn’t know it was there. It has no pot leaf images, no neon signs announcing “Alternative” or “Herbal,” no commercial signage at all. The owner, Michael Backes, told me with amused pride that a while back, when a runaway car plowed straight through his wall, a local news crew identified the place as a “dentist office,” which is what it looks like from its waiting room. Backes is “doing it right,” Larsen tells me.
My drive through Studio City, in the southeast San Fernando Valley just over the mountains from Hollywood, is similar. Barbara Monahan Burke, a 64-year-old horticulturalist who serves as the neighborhood council’s co-chair for government affairs, doesn’t say anything about increases in crime associated with the marijuana dispensaries (a connection often asserted by public officials), but she does complain about occasional pot smoking in front of them, which can annoy commercial neighbors. “I personally believe in compassionate use of medical marijuana and voted for it,” she says.
Within a couple of miles on Ventura Boulevard, a dozen dispensaries seem to be open for business on this weekday afternoon. (Burke told me in mid-February that by then she was only sure that six of them were still open for business.) “It’s about preservation of communities,” she says. “We want this to be a place where families can live. It’s about, what do the people who live here want our branding to be as Studio City?” That branding, she thinks, should not be linked to green crosses and billboards for Medicann, a medical marijuana doctors’ consulting service, every couple of blocks on her neighborhood’s major commercial strip.
The Wild West of Weed
Newsweek dubbed Los Angeles “the wild West of weed” in October 2009, and that phrase often echoed through the city council’s chamber as it haggled over a long-awaited ordinance regulating the dispensaries. Both the Los Angeles Times and the L.A. Weekly regularly jabbed at the city council for fiddling while marijuana burned, supplied by storefront pot dispensaries that were widely (but inaccurately) said to total 1,000 or more.
On January 26, after years of dithering and months of debate, the city council finally passed an ordinance to regulate medical marijuana shops. In addition to dictating the details of lighting, record keeping, auditing, bank drops, hours of operation, and compensation for owners and employees, the ordinance requires a dramatic reduction in the number of dispensaries. The official limit is 70, but because of exemptions for some pre-existing dispensaries the final number could grow as high as 137. The ordinance allocates the surviving dispensaries among the city’s “planning districts” and requires that they be located more than 1,000 feet from each other and from “sensitive areas” such as parks, schools, churches, and libraries. It also requires patients who obtain marijuana from dispensaries to pick one outlet and stick with it.
As those rules suggest, city officials are not prepared to treat marijuana like any other medicine, despite a 1996 state ballot initiative that allows patients with doctor’s recommendations to use it for symptom relief. It’s hard to imagine the city council arbitrarily limiting the number of pharmacies, insisting that they not do business near competitors, creating buffer zones between parks and Duane Reade locations, or demanding that patients obtain their Lipitor from one and only one drugstore. Such restrictions reflect marijuana’s dual identity in California: It is simultaneously medicine and menace. At the same time, the regulations do serve to legitimize distribution of a drug that remains completely prohibited by federal law—a stamp of approval welcomed by many dispensary operators.
When I asked activists, businessmen, or politicians why L.A.’s medical marijuana market needed to be regulated, they almost invariably replied, “It was unregulated.” When I delved beyond that tautology, I found motives little different from those that drive land use planning generally. The activists who demanded that the city bring order to the “wild West” of medical marijuana were motivated not by antipathy to cannabis so much as mundane concerns about “blight,” neighborhood character, and spillover effects. While responding to these concerns, every member of the city council voiced support for medical access to marijuana in theory, and none openly sided with the federal law enforcement officials who view the trade as nothing more than drug dealing in disguise.
Los Angeles became the medical marijuana capital of America thanks to a combination of entrepreneurial energy and benign political neglect. What happened here is instructive for other jurisdictions that already or may soon let patients use the drug. In the last 14 years, the voters or legislators of 14 states and the District of Columbia have legalized marijuana for at least some medical purposes. Medical marijuana campaigns, via either legislation or ballot initiative, are active in 13 other states. National surveys indicate broad public support for such reforms. An ABC News/Washington Post poll conducted in January found that 81 percent of Americans think patients who can benefit from marijuana should be able to obtain it legally.
But L.A.’s experience also shows that majority support for medical marijuana is not necessarily enough. An October poll of Los Angeles residents commissioned by the Marijuana Policy Project found that 77 percent supported regulating dispensaries, while only 14 percent wanted them closed. But patients and the entrepreneurs who served them still had to contend with a noisy minority, clustered in political institutions such as neighborhood councils, the police department, and government lawyers’ offices, who resisted the normalization of marijuana. That process culminated in an ordinance with onerous restrictions that could nearly eliminate the current medical pot business and cause great hardship for tens of thousands of Los Angeles residents who use marijuana as a medicine.
Still, for those who lived through the ferocious cultural and political war over pot during the second half of the 20th century, it’s amazing that the strife in pot-saturated Los Angeles has had more to do with land use regulation than with eradicating an allegedly evil plant. Even with pot readily available over the counter at hundreds of locations to anyone with an easily obtained doctor’s letter, the most common complaints were essentially aesthetic.
The Road to the Corner Pot Shop
When California voters agreed in 1996 to legalize pot for medical use, the initiative campaign emphasized marijuana’s utility in treating AIDS wasting syndrome, the side effects of cancer chemotherapy, and other grave conditions. But the initiative, known as the Compassionate Use Act, also allowed pot to be recommended for treatment of “any other illness for which marijuana provides relief.” That language strongly influenced how the politics and culture of medical marijuana evolved in Los Angeles.
The federal government did not yield to the judgment of California’s voters. The Clinton administration threatened to prosecute or revoke the prescription privileges of doctors who recommended marijuana, only to be rebuked by a federal appeals court on First Amendment grounds. From the late 1990s into the first year of the Obama administration, the Drug Enforcement Administration (DEA) raided medical marijuana growers and suppliers, without regard to whether they were following California law. Last November, the Justice Department instructed U.S. attorneys that they “should not focus federal resources” on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” Yet as of February, the DEA was still raiding medical marijuana shops in the L.A. area.
Ambiguity is built into the Justice Department’s new policy, thanks to uncertainty over what exactly it means to comply with state law. The Compassionate Use Act allowed patients or their “primary caregivers” to grow marijuana for medical use. The Medical Marijuana Program Act, a law passed by the state legislature that took effect in 2004, imposed limits on how much marijuana patients or their caregivers could possess, while allowing local jurisdictions to establish higher ceilings. In January the California Supreme Court rejected those limits, saying patients should be allowed to have whatever amount is “reasonable” for their medical needs.
Most important in understanding what happened in Los Angeles, the 2004 law said patients may join together to “collectively or cooperatively” grow marijuana and distribute it to each other. The law did not define collectives or cooperatives, but guidelines issued by Attorney General Jerry Brown in 2008 said they should be deemed legitimate as long as they were operated by patients, served only members of the collective, and did not take in more revenue than was necessary to cover their operating expenses. Ostensibly, the storefront dispensaries that opened in cities such as Los Angeles, San Diego, San Francisco, and Oakland were collectives operated by and for patients, providing them with their medicine as permitted by state law. But given the ease of obtaining a doctor’s recommendation and becoming a collective member, critics viewed the dispensaries as thinly disguised pot shops that sold marijuana to the general public for recreational as well as medical purposes.
As you are frequently reminded by people in Los Angeles who are angry about the way the dispensary system developed, Californians who voted for the Compassionate Use Act had in mind patients with cancer, AIDS, or other serious conditions, people who needed marijuana to relieve agonizing pain, fight debilitating nausea, or restore their appetites so they could take in enough nutrition to stay alive. Voters who supported the initiative did not have in mind milder, vaguer, and less verifiable complaints of the sort that seem to be far more common among people with doctor’s recommendations. Austin Elguindy, a partner in an L.A. medical pot recommendation practice called Consulting and Care for Wellness, tells me his top three reasons for recommending marijuana are lower back pain, insomnia, and anxiety.
Regulation of the dispensaries was left to local jurisdictions. Some, such as the politically liberal cities of San Francisco, Oakland, and West Hollywood, experienced an early proliferation that was quickly curbed. San Francisco set a limit of 23 dispensaries, while Oakland and West Hollywood each settled on four. About 120 cities banned pot storefronts entirely (although a lawsuit that is before a state appeals court challenges their authority to do so). Los Angeles, by contrast, declined to address pot dispensaries at all. Medical marijuana entrepreneurs began moving into L.A. in 2003. In May 2005, when City Councilman Dennis Zine (a former cop) first asked the police to look into the dispensaries and asked the city attorney’s office to help the council draft regulations for them, just a handful were around. By the end of 2006 there were nearly 100.
Zine blames the delayed reaction on resistance from then–City Attorney Rocky Delgadillo. Don Duncan, a leading medical marijuana activist and operator of a West Hollywood dispensary that opened in 2004, also blames the city attorney’s office. He says Delgadillo and his successor, Carmen Trutanich, did not want to legitimize an industry they viewed as illegal. Both took the position, contrary to Attorney General Brown’s guidelines, that state law does not allow the exchange of medical marijuana for money, no matter how the distributor is organized or labeled. In a January ruling on a civil nuisance case brought by the city attorney’s office against a dispensary called Hemp Factory V, a Superior Court judge agreed with this narrow reading of the law. Joe Elford, a lawyer for the medical marijuana activist group Americans for Safe Access, says this contradicts state appellate decisions that acknowledge the legality of not-for-profit sales.
The complaints that prompted Zine to consider regulating the dispensaries were not terribly alarming. Citizens were annoyed by pot smokers congregating outside dispensaries. Some parents didn’t like the message they believed the dispensaries communicated to their kids: that marijuana was an ordinary commodity that could be sold openly without fear of legal repercussions. They also worried that kids might obtain marijuana from patients, which local journalists have found happens occasionally. Mostly, marijuana just kind of freaks some people out.
In August 2007, the city council rushed through an “interim control ordinance” (ICO) that declared a moratorium on new pot shops. The ordinance also required existing dispensaries to submit paperwork proving they had seller’s permits from the state Board of Equalization (which expected them to collect taxes on marijuana sales), a tax registration certificate from the city, and a legitimate commercial lease or property deed. One hundred eighty-three dispensaries filed their paperwork before the November 2007 deadline, of which 137 were still operating when the council passed its new regulations in 2010.
By the time the ICO was passed, many dispensaries had been forced to close by the DEA’s tactic of sending threatening letters to landlords who rented space to pot shops. Worried that their property would be seized by the federal government, dozens of landlords evicted marijuana dispensaries. Many of these sellers sought to reopen by applying for a “hardship exemption” under the interim control ordinance. The city let the applications pile up without examining them, and dispensary operators who were not in business prior to the moratorium filed the same forms, hoping they could slip by. Many others, known as “rogues” in the medical marijuana community, opened without bothering to file any paperwork.
By mid-2009 hundreds of what came to be known as “post-ICO” pot shops had opened. Local and national media outlets began to notice. In July a Wall Street Journal story looked askance at the “unchecked growth” of pot shops in L.A. In October, the same month Newsweek dubbed L.A. “the wild West of weed,” a New York Times story tut-tutted that there were “more marijuana stores here than public schools.” The city council could no longer avoid the issue.
Making a Hash of an Ordinance
According to dispensary critic Michael Larsen, Los Angeles was “a national laughingstock” because of the proliferating pot shops. Based on a combination of hysterical hearsay and applications for exemptions that never turned into functioning storefronts, politicians, journalists, and perturbed neighbors were regularly claiming the city had something like 1,000 dispensaries—more than the number of Starbucks locations.
The L.A. Weekly—an alternative paper that might have been expected to side with the dispensaries, especially given how many of their ads fill the paper—helped lead the negative coverage, as part of a general crusade against what it sees as the city government’s fecklessness. The paper in November tried to get an accurate count of the dispensaries and found that 540 or so were operating when the council began reconsidering the issue. To a politician who didn’t have to worry about where he could obtain a medicine that helped make his life livable, that must have seemed like an awful lot.
Even though the city council had been considering the issue, on and off, for nearly five years, the ordinance it produced after a contentious back and forth between the council and the city attorney’s office seemed half-baked in many respects. It imposed draconian restrictions with little thought to how they might affect patients who had come to rely on marijuana to relieve their symptoms.
Some of the provisions are mild and largely supported by the medical pot community, which was begging for bearable regulations that would legitimize the dispensaries. The relatively uncontroversial requirements include demands for twice-daily bank runs, no plants visible from the street, and unarmed security guards patrolling a two-block radius around each dispensary.
Other provisions seem difficult to enforce and/or comply with, such as the rule that each patient can be a member of no more than one collective (meaning he can obtain marijuana from just one location), a demand that all the pot distributed go through “an independent and certified laboratory” to be checked for pesticides (dispensary operators insist that no such lab exists in Los Angeles), and a requirement that dispensaries store what could amount to tens of thousands of pieces of paper with patient and transaction information in fireproof vaults on site. Most ominously for the future of the medical marijuana business in L.A., the ordinance creates 1,000-foot “buffers” between the dispensaries and a list of “sensitive uses”: schools, churches, libraries, parks, youth centers, substance abuse centers, and other pot dispensaries. A last-minute addition to the bill also bans dispensaries from land “abutting” residential property and specifies that “no collective shall be located on a lot…across the street or alley from…a residentially zoned lot or a lot improved with residential use.”
If the ordinance survives legal challenges and goes into effect, that last provision will force nearly all of the existing dispensaries to move, and they will have few places to go. Almost all of L.A.’s standard commercial space is separated from homes or apartments merely by an alley behind them. In the weeks after the ordinance passed, various sources in the medical marijuana community told me landlords lucky enough to have space that complies with the new rules have tripled their rents and started demanding five-figure “signing fees” from dispensaries scrambling to find new locations.
Pot Civil War
The regulatory debate divided the medical marijuana community, pitting older dispensaries against new competitors, those seeking legitimacy against the open outlaws, those happy with the medical-use status quo against those who want complete legalization. Pot sellers who were in business before the 2007 moratorium—which a state court overturned on technical legal grounds in October—believe, probably correctly, that the industry could have continued to thrive under the media and political radar if not for the hundreds of Johnny-come-latelies. “Pre-ICO” and “post-ICO” dispensaries are the Sharks and Jets of the L.A. pot world.
Bill Leahy is general manager of a three- location chain of dispensaries known as the Farmacy, which began operating in West Hollywood in 2004. He meets me at the West Hollywood branch, which features cheery attendants, warm wood, mystical art, and one of the metropolitan area’s widest arrays of cannabis-enhanced tinctures, sprays, drinks, packaged foods, and gelatos. Leahy, a 63-year-old former print shop operator with the air of a steel-hard but gallant Western sheriff, is understandably proud of his comfortable shopping environment with doors open wide to the cool, sunny L.A. winter.
The Farmacy does not have the unsettling mantrap quality of many dispensaries, where you are locked into enclosed space after enclosed space between you and whoever hands you the goods (after examining and confirming your doctor’s recommendation and asking you to fill out forms to join the collective, assuming the dispensary is trying to be legit). Leahy makes sure I notice a rival shop across Santa Monica Boulevard, which opened in 2005. He gently chides its garish signage and unfriendly layout, which includes one of those off-putting enclosed entry areas.
Leahy is on the steering committee of the Greater Los Angeles Collective Alliance, a trade association dominated by the pre-ICO shops. Don Duncan, a prominent activist in the association, represents Americans for Safe Access as well as his own West Hollywood dispensary. An overwrought November L.A. Weekly story painted Duncan as the drug kingpin guiding council members such as Dennis Zine and Ed Reyes to let legalized pot dealing ruin their city, describing Duncan as “the most important man in City Hall regarding medical marijuana policy” with “tremendous influence.” The article suggestively noted that Duncan “wasn’t vetted to determine whether his pot sources and profits are illicit or legitimate,” though it presented no evidence that he fails to comply with state law.
Since March 2009, Dan Halbert has run the Rainforest Collective, a pot shop on Venice Boulevard in West Los Angeles with a bright and airy front room, floors covered in Astroturf, and walls painted with murals that suggest you are sitting in a vaguely Greek temple situated in a jungle. Halbert is president of the Green Alliance of Patients and Providers (GAPP), a trade group representing post-ICO dispensaries. The organization raised the ire of the city council gadfly John Walsh, a perpetually angry, perpetually arm-pumping shouter who was the most consistent and loudest anti-dispensary voice at city council meetings. At a January city council meeting, an appalled Walsh pointed the council’s attention to a line in a GAPP pamphlet that said the dispensaries wanted to craft and pass, via city referendum, regulations “for the industry by the industry.” Walsh bridled at the word industry. Wasn’t medical marijuana supposed to be about medicine and compassion?
Halbert understands that the pre-ICO pot entrepreneurs paved the way for people like him, braving the risk of federal arrests. An entrepreneur from Arizona, he says he did not feel safe moving into the market until he believed the Obama administration wouldn’t come after him. He can see how old hands such as Leahy and Duncan would resent the new competition. Still, Halbert says, “We brought the prices down. When there were only 186 [dispensaries], things were expensive, and [the shops] were making a lot of money, which is against the whole intent of this.”
Halbert’s jab at the profits of his older competitors seems somewhat at odds with his group’s description of medical marijuana distribution as an “industry.” But it fits with the anti-commercial mentality reflected in the attorney general’s guidelines, which say collectives should not turn a profit (although they are not required to incorporate as nonprofit organizations). That same attitude led to the half-baked wage controls in the new ordinance, which bans bonuses and says operators and workers must receive “compensation commensurate with reasonable wages and benefits paid to employees of IRS-qualified non-profit organizations” with similar qualifications and duties.
‘That Other Thing’
We’ve been talking about the politics of medical marijuana, a more or less civilized activity in which business people and activists on both sides lobby politicians, who consider their input, along with public comments and negative press coverage, when they formulate policy. That’s one thing. But as drug lord Avon Barksdale told his lieutenant Stringer Bell in the HBO series The Wire, there’s also “that other thing.”
Barksdale says this in the context of Bell’s attempts to turn the drug trade into a rational business—much as Don Duncan and Dan Halbert, in a more aboveboard way, are doing in Los Angeles. “That other thing” is the part of the drug trade Barksdale is more comfortable with: the part with guns and threats, intimidation and violence.
That other thing also plays a role in L.A.’s medical marijuana market, but how big a role is unclear. Although the text of the new ordinance alleges an “increase in and escalation of violent crime” associated with dispensaries, the city’s crime rates were dropping in almost every category while the shops proliferated. In a January interview with the Los Angeles Daily News, L.A. Police Chief Charlie Beck admitted there was no evidence the dispensaries had contributed to criminality. “I have tried to verify that because that, of course, is the mantra,” Beck told the paper. “It doesn’t really bear out.”
One guard was murdered by robbers at a Pico Boulevard dispensary in October 2008, the sort of tragedy that can be expected in a big-city business that deals mostly in cash because its transactions are prohibited by federal law. City Attorney Carmen Trutanich says about 200 L.A. dispensaries have been robbed. Patrick Duff, proprietor of three L.A.-area marijuana dispensaries that have been raided by the police for various reasons, thinks the actual number of robberies is much higher because dispensary operators are often reluctant to call cops they believe are corrupt.
Police and politicians often claim dispensaries get their pot from Mexican drug cartels. (To comply with state law, everything a pot dispensary sells is supposed to be provided by its own patient-members, and all the dispensary operators I talked to or who stood up for themselves at city council meetings insist that’s how they do it. The council briefly considered requiring the dispensaries to do all their growing on site, the kind of demand that would have been seen as obviously absurd if applied to any other market or pharmacy.) Capt. Kevin McCarthy, the Los Angeles Police Department’s commanding officer for gangs and narcotics, tells me that getting to the bottom of such connections, if they exist, would be “labor intensive to do, and we don’t have resources to do it.” McCarthy notes that the city claims to have found pesticides used only in Mexico on pot seized in at least one dispensary raid.
One old-fashioned grower from Mendocino County who was accustomed to dealing with pot-savvy dispensary operators in the pre-ICO days laments that he is now supplying “Boris with the gold chains,” who cares only about price points and doesn’t understand the product. (There is no legal reason growers from up north can’t be patient-members of a dispensary in L.A.) Some anti-dispensary activists worry that they may be interfering with the interests of people who are not afraid to use violence when crossed, but there is no hard evidence to support that fear.
When it comes to intimidation and violence in the medical marijuana scene, the leading offender, however, is clearly the government: the DEA, plus local police and sheriff’s departments. They send small armies of heavily armed, Kevlar-clad, dark-helmeted men into the stores and homes of dispensary operators and medical marijuana growers, terrorizing their children, shooting their dogs, digging up their yards, roughing them up, and taking their money.
As of early February, Americans for Safe Access has counted nearly 70 medical marijuana raids in the Los Angeles area since 2006. Federal raids usually do not result in criminal charges; the DEA typically settles for shutting down dispensaries and seizing their assets. State and local authorities are slightly more inclined to prosecute. Los Angeles County District Attorney Steve Cooley, like City Attorney Trutanich, maintains that all pot sales are illegal. Still, most cases end in plea agreements, which means defendants’ claims to be operating within the law are never considered by a jury. Meital Manzuri, a Sherman Oaks defense attorney who represents dispensary operators, says it’s generally in the interests of both the state and the defendants to stop medical marijuana cases before they go to trial: Trials are expensive and, when a medical defense is involved, risky for both sides.
One dispensary operator who is likely going to trial on state charges is the 60-year-old accountant Clay Tepel, a veteran of L.A.’s counterculture as a former business manager at the original Los Angeles alternative weekly, the L.A. Free Press. In August local police arrested Tepel for possession with intent to sell at Kush Korner, his pot shop in a strip mall on Ventura Boulevard in Tarzana. His sign still hangs between “I Sold it on EBay” and “Kids Hair Shop” in front of the strip mall, and the wrecked storefront stands empty next to a Domino’s Pizza outlet. Tepel still has the lease and keys, and we chat in the front room of the former dispensary, where natural light seeps into the electricity-deprived space. The possession with intent to sell charge darkly amuses him: Why else would he have a seller’s permit from the state Board of Equalization? Tepel’s lawyer, Allison Margolin, says that the case may result in her challenging the legality of the state’s demand that dispensaries have to operate not-for-profit.
Tepel’s store was a family operation. One of his teenaged daughters and his wife helped run the shop, which he insists was not only not making a profit but was in fact sucking money from his accounting income. Both of his teenaged daughters were around when a squad of heavily armed cops burst into his house at the same time the store was raided. Tepel tells me he and his family are negotiating with a major TV network to produce a reality show about his “Brady Bunch with bongs” once his legal troubles are behind him. Tepel says he has no idea why he was raided or why he is one of the unlucky few with a court date. He says the lead cop on the raid told him they were “coming to get all of them.”
In mid-February, after the new ordinance passed but before it took effect, local officials started to deliver on that threat. On February 18, the city attorney’s office sued three L.A. dispensaries, seeking to shut them down as public nuisances. The operator of one dispensary named in the lawsuit, Organica in West L.A., was arrested on state charges of selling marijuana in a raid that involved the DEA. On the same day, 18 other dispensaries received letters from the city attorney, threatening them with eviction for selling marijuana.
Assistant City Attorney Asha Greenberg told the L.A. Weekly that all the shops were targeted for selling pot to undercover cops who presented doctor’s recommendations. The city attorney’s office continues to insist that exchanging medical marijuana for money is illegal in all circumstances, even though the city council just passed an ordinance that explicitly allows nonprofit sales.
The Lie of Medical Marijuana
California’s medical marijuana law created a special category of people who are allowed to do something that others would be arrested for doing, and it gave a guild of licensed professionals the nearly unlimited power to define this category. Although physicians who issue recommendations for nonmedical reasons theoretically can be disciplined by the state medical board, that has happened only 12 times since 1996, and only one doctor lost his license as a result. The discretion permitted by the law is so broad that proving misconduct is very difficult.
That broad discretion helps patients who might be denied their medicine under a stricter regime, and at the same time it helps people who want pot for recreational purposes. Medical marijuana activists often say that all marijuana use is essentially medical, if that category is understood to include quotidian psychological and emotional problems that the drug alleviates. If physicians can prescribe pharmaceuticals to treat stress, anxiety, shyness, and depression, the activists say, why can’t they recommend marijuana for the same reasons? Stephen Gutwillig, California state director of the Drug Policy Alliance, offers a partly tongue-in-cheek take on the question: Given how bad for your health it is to get caught up in the criminal justice system because you have marijuana, he says, removing that threat is a form of preventive medicine.
Politically, though, the malleability of the medical category is a problem. Anyone who locates a sympathetic, trusting, or simply greedy doctor can obtain the legal right to possess pot in California. That fact, plus the hundreds of outlets that sprang up in Los Angeles to supply those patients, fostered a fairly accurate public perception that during the last few years anyone willing to put in a little effort could travel a short distance and buy pot over the counter.
The medical model attaches great importance to motive and state of mind, which is why dispensary operators often say, when justifying themselves to politicians or the press, that they’re in the business “for the right reasons,” unlike some of their competitors. Combined with the federal ban on marijuana, medicalization leads to a world where customers can shop at only one store; where the cash they pay for a product is not the price but a “contribution to the collective”; where businesses are expected to avoid turning a profit; where a medicine is subject to sales tax, unlike other pharmaceuticals, and isn’t regulated like any other pharmaceutical; where you are complying with the law if what you possess is “reasonable” related to some need that may have been invented by a doctor to begin with; where it’s legal for you to have pot but you are still apt to be arrested for growing or transporting it.
The medical model also fosters a weirdly contradictory attitude toward pot use, one that seemed to animate the L.A. Weekly’s surprisingly negative coverage of the issue: Even people who don’t care about pot smoking in general get upset when they think stoners are gaming a system that is supposed to serve patients with doctor-certified needs. The L.A. Weekly angrily reported in November that 70 percent of the people its reporters saw entering dispensaries were “young men—corroborating D.A. Cooley’s claim that the real market for all this activity is everyday users, not people suffering serious disease.” (Medical activists tend to respond to that sort of talk with the riposte that all sorts of maladies for which pot provides relief aren’t diagnosable by strangers watching from yards away.)
In Los Angeles, such outrage over pot being used for the “wrong” reasons led to a bad and unsustainable ordinance. In March, Americans for Safe Access challenged the new regulations in state court. Its lawyer Joe Elford said in a press release that “The requirement to find a new location within 7 days [if the old one is zoned out of compliance] is completely unreasonable and undermines the due process of otherwise legal medical marijuana dispensaries.” The suit seeks to have the ordinance declared “unlawful and unconstitutional.”
The ordinance also faces a challenge in the form of a citizen referendum spearheaded by Dan Halbert, who needs 27,000 signatures to get it on the next available L.A. ballot in 2010. But as long as medical use is the only marijuana use officially permitted, dispensaries will remain hamstrung by stupid and unworkable restrictions. Full legalization, an idea long avoided by many medical marijuana activists, may be the only way to make sure all patients who can benefit from the drug have access to it without creating the sort of situation that gave rise to the crackdown in L.A.
While the latest ordinance may or may not succeed in shutting down hundreds of functioning storefronts, the freewheeling culture of quasi-legal pot will be harder to crush. L.A. is home to at least four ad-filled magazines serving the pot community, a branch of “Oaksterdam University” where potrepreneurs and patients learn medical marijuana science and law, an endless series of cannabis-related expositions and conventions, and websites such as Weedtracker (featuring discussions of dispensary quality and local politics) and weedmaps.com (which finds the dispensary nearest you). The Medical Cannabis Safety Council meets at Oaksterdam on occasional Saturday nights to discuss, among other things, the molds that can bedevil growers and self-regulation as a way of fending off heavy-handed government interference.
Is America ready for a world in which pot is as culturally and physically prevalent as it has become in L.A.? In a national Zogby poll conducted in April 2009, 52 percent of respondents supported treating marijuana more or less like alcohol, while other recent polls put the percentage in the 40s. Support for legalization is higher in California: A Field Poll of California voters taken the same month as the Zogby survey put support for legalization at 56 percent statewide and 60 percent in Los Angeles County. This fall we will see whether those opinions translate into voter support for a California ballot initiative that would, at long last, legalize and tax adult possession of marijuana.
Don Duncan, as dean of L.A.’s medical marijuana suppliers and activists, doesn’t want to opine about full legalization. But his take on why all sides have fought so ferociously over the city’s medical pot ordinance applies to the legalization debate as well. “The normalization of medical marijuana—certain elements in law enforcement and other civic leaders see it as a threat,” he says. “If L.A. is in fact a medical marijuana town with safe access regulated, then that ends the debate for California.…Once the state’s largest and most populated community has sensible regulations, foes of medical cannabis in law enforcement know they’ve lost the battle in California. They see it as a line in the sand, so ideologically they can’t give up L.A. By the same token, that’s why ideologically we can’t either.”
The fight to define what happened in L.A. during the “wild West” days of what amounted to legal over-the-counter pot is the same sort of battle. If the complaints that led to the regulatory crackdown are understood as arising from anti-pot prejudice, NIMBYism, and the occasional sighting of “undesirables,” rather than real threats to public order and safety, it will seem pretty silly to continue spending billions of dollars and millions of man-hours each year to stop people from exchanging money for pot. The accidental result of a city attorney who didn’t want to legitimize marijuana and a city council that didn’t want to think about it could be the realization that it’s better to allow a pot free-for-all than to continue to wage war on marijuana.
Senior Editor Brian Doherty (firstname.lastname@example.org) is the author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs), and Gun Control on Trial (Cato). This column first appeared at Reason.com.