Politicos torpedo patients

Feds and state seem on the same page, but localities balk


California medical dispensaries like this have been victims of the Obama administration's on-again/off-again enforcement policies. In this 2010 photo, an El Camino Wellness Center clerk chats with Max Del Real.

A few weeks ago, a California lobbyist involved in medical dispensaries in that state met with News & Review executives in Reno. He had been monitoring the new law enacted by the 2013 Nevada Legislature to implement a voter-approved medical marijuana measure intended to return marijuana to medical use for the first time in the state since the late 1930s.

The businessperson said that under the new Nevada law, medical dispensaries were going to happen very quickly.

Well, maybe not.

Although both voters and the Nevada Legislature have now authorized medical dispensaries, local politicians are trying to block them by preventing municipal implementing ordinances. Thirteen years after voters mandated a means of supplying patients with their medicine, it appears this calendar year will not yet be the time.

• Lyon County Sheriff Allen Veil has asked for a county ordinance banning the state-authorized dispensaries outright: “Where there’s marijuana, organized crime has a finger in it, if it’s not controlled by them. The potential is great for abuse and money laundering and there’s absolutely no reason Lyon County should want to be a part of that.” The legislative sponsor of the dispensaries said that a county with legal prostitution was getting kind of finicky.

• The Reno City Council discussed the matter in June and decided to wait four months before dealing with it again. Councilmember Dwight Dortch was particularly outspoken in opposition to medical dispensaries. (The council will return to the issue again this week.)

• The Las Vegas City Council voted unanimously on Sept. 18 not to allow any dispensaries for six months.

“I anticipated the foot dragging,” said Clark County Sen. Richard Segerblom. “As time goes on everyone will be begging to get on board. As long as there is one government entity in each county that will accept them we’re OK. The legislature really can’t do anything more until 2015, but I will be ready if we need to do something.”

No one is hurrying at the state level, either. State implementing regulations aren’t expected until the end of the year.

State vs. local

It’s not well known that there are local implementing ordinances for state laws, because they are usually automatic. Only rarely do local governments balk.

In 1985, after grocery and other lobbyists pushed for it, the Nevada Legislature made it a misdemeanor crime to “knowingly possess … a cart that has been removed from the owner’s premises.” Some cities, such as Sparks, did not enact local implementation on grounds that merchants should keep track of their own carts. (Sparks, in fact, eventually adopted an ordinance requiring store owners to follow a prescribed routine for getting shopping carts off city streets.)

In 1983, after the legislature enacted a measure requiring that children under the age of 6 must be in restraint seats while being transported in vehicles, the Reno City Council resisted enacting a local ordinance. After some bad publicity for the council, members reversed their stand and approved local implementation.

The municipal governments are within their rights to refuse to permit dispensaries, assuming they are willing to face voters. The new state law, sponsored by Segerblom, is “local option”—allowing municipal governments to decide for themselves whether to allow the facilities. Residents in all the counties where local governments are now resisting the dispensaries voted in favor of medical marijuana. There was a 57 percent majority in Lyon County and 67 percent majorities in both Clark and Washoe.

Paradoxically, the small counties—which are a hotbed of defiance of federal law on public land issues—are now taking refuge behind the fig leaf that marijuana use remains illegal under federal law.

More than 4,000 state residents have marijuana prescription cards. A county breakdown was not immediately available.

The dispensary legislation is a product of a court rebuke of the lawmakers by state Judge Donald Mosley. When Nevadans approved the medical marijuana ballot measure in 2000, its language instructed state legislators to “provide by law for … Authorization of appropriate methods for supply of the plant to patients authorized to use it.” Instead, the lawmakers adopted legislation that essentially said, “Grow your own”—but provided no legal way for them to acquire seeds.

In a Las Vegas case, Mosley called the state adopted by the legislators “ridiculous,” “absurd,” and unconstitutional. He found that legislators either botched the job of implementing the ballot measure or deliberately tried to undercut it: “It is apparent to [Mosley] that the statutory scheme set out for the lawful distribution of medical marijuana is either poorly contemplated or purposely constructed to frustrate the implementation of constitutionally mandated access to the substance.”

Federal vs. state

Nor are local governments the only threat to medical dispensaries in Nevada.

Initially, the Obama administration adopted policies more akin to the Ford and Carter administrations of light regulation, in keeping with Barack Obama’s campaign pledge that he wanted federal resources used “investigating violent crimes and potential terrorism” rather than marijuana. But then, in California in 2011, it launched intimidation, raids and forfeitures against medical dispensaries. That crackdown continues today.

That did not stop the movement. More states, by public vote or legislative action, started cutting themselves loose from federal drug policies, most dramatically in Colorado and Washington, which went to straight legalization and regulation.

On Aug. 29, U.S. Attorney General Eric Holder said the feds would not move against those two states and would keep arms-length from punitive enforcement in states where marijuana is used as medicine.

But it was Holder who, in 2009, had instructed federal prosecutors not to “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”—and then had allowed U.S. Attorneys in California to launch their crackdown. Indeed, after Holder announced his new policy, U.S. attorneys in California said they had no plans to change their policies. Moreover, any current federal enforcement let-up is good only as long as the current administration is in power.

Significantly, the week before Holder announced his new policy, the U.S. Drug Enforcement Administration pressured armored car companies to stop serving medical dispensaries that supply marijuana—a serious safety threat, given the feds’ previous success in convincing credit card companies not to allow dispensary accounts.

Earlier this year (“Manufacturing commerce,” RN&R, April 25), Nevada’s U.S. Attorney David Bogden said he was waiting for guidance from the attorney general before commenting on how he expects to handle dispensaries.

The Interim Finance Committee, which allocates funds when the full Nevada Legislature is out of session, has provided $520,000 for the Nevada Department of Taxation to create a system for collecting the taxes on the dispensaries and $246,000 for the Nevada Division of Public and Behavioral Health to set up a program for dispensaries to follow—if there are any.