April 15 2015 11:42 AM

Police mum on how dispensaries should get their weed

Medical cannabis for sale at A Green Alternative, San Diego’s first permitted dispensary

At a mini mall in Otay Mesa last Thursday around noon, two gray-haired women, one limping with a cane, walked into A Green Alternative, San Diego’s first permitted medical-cannabis dispensary. After passing by an armed guard, through a metal detector and checking in with a clerk sitting behind bullet-proof glass, the ladies were ushered by an employee into the main showroom.

With cameras recording their every move, strategically placed panic buttons and a 6,000-pound safe holding most of the storefront’s money and cannabis, the idea that someone bearing arms could pose a threat to the operation seemed absurd.

Yet, such a concern was on the minds of those managing the dispensary that day. The armed individuals in question, however, weren’t robbers, but cops. And at issue wasn’t selling medical cannabis, but how to procure it.

“When we go to the police department and ask for specific guidelines, they’re, I don’t want to say, ‘hands-off,’ because they’ve been absolutely wonderful to work with,” said Dr. Bob Walder, the dispensary’s CFO. “But when we drill down to request guidelines or guidance, they kind of back away real quickly.”

As the city continues to permit new medical-cannabis dispensaries, the question of how such facilities should get their product remains largely unanswered. With no official protocol from the local police department, dispensaries in the city join many other medical-cannabis storefronts around the state in facing the legal gray area of how best to stock their shelves.

Even describing the process of buying cannabis from a legitimate patient grower is a delicate art. Here’s how A Green Alternative COO Zachary Lazarus puts it: “The growers grow medication for themselves, and it just so happens they have extra medication. They relinquish it to the collective for compensation.”

As if that wasn’t confusing enough, state laws are extremely vague about how much each patient is allowed to grow and how much so-called excess they’re allowed to possess, transport and sell at any one time. If a law enforcement officer intercepts medical cannabis before it makes it to the storefront, the officer has tremendous discretion in how to handle the situation.

In cases where grow operations with larger quantities of cannabis are involved, law enforcement officers will often ignore a doctor’s recommendation, said Michael Cindrich, lawyer and executive director of the San Diego County chapter of the National Organization for the Reform of Marijuana Laws.

“Instead of investigating the collective and doing their job, which is what they should be doing, they just chop plants, make arrests and let the [District Attorney’s] office sort it out,” he said.

That also means that in places like San Diego where the police department has issued no guidelines, growers are gambling every time they transport pounds of cannabis to a dispensary.

With A Green Alternative buying from more than a dozen growers, Lazarus said he’s tried to get law enforcement to outline how much cannabis they can receive at any one time.

“They’re here to make sure that we’re protected, but since it’s such a gray area for them, they’re not giving an opinion on protocol,” he said.

The San Diego Police Department, Mayor Kevin Faulconer and City Council President Sherri Lightner all declined to comment for this story.

However, the confusion isn’t just the result of local inaction. State law created the uncertainty starting in 1996 with voter-approved Proposition 215. The initiative legalized medical cannabis but didn’t set limits on how many plants a patient could grow or how much processed cannabis an individual could possess.

“There was a lot of confusion with law enforcement,” Cindrich said. “They didn’t know who was legal and who wasn’t.”

In response, in 2003, the Legislature passed SB 420, which allowed patients to have six mature plants and 8 ounces of processed cannabis. It also gave cities and counties the discretion to set higher local limits. The city of San Diego set its limit at 24 plants and one pound of cannabis.

However, in 2011, the California State Supreme Court ruled that the Legislature couldn’t amend Proposition 215 without additional voter approval and redefined the limits as “reasonably related” to a patient’s medical need. As a result, while there are several bills in Sacramento right now that would create specific guidelines for growing and selling cannabis to dispensaries, the law as it currently stands is open to broad interpretation.

"The practical reality on the ground is that most law enforcement agencies have really no clue about the medical-marijuana laws in California," Cindrich said. 

That was at least partially true of City Attorney Jan Goldsmith's office, which often boasts of having shut down 250 unpermitted dispensaries in the city, but which declined to take seriously the question of how a permitted dispensary should legally procure cannabis.

"We advise city departments, but none of them buy weed," wrote spokesperson Gerry Braun, in a dismissive email to CityBeat.

One agency that's taken the issue seriously is the San Diego County Sheriff's Department. Requiring dispensaries to list the addresses of all their growers, the department routinely inspects these grow operations for size and other conditions.

With only one storefront located in county jurisdiction, deputies will sometimes tell growers for the dispensary to scale back an operation and give them time to comply, said Detective Mike Helms of the Sheriff's Department's License and Criminal Registration Unit. While the department is slightly flexible on the size of a grow operation, it still relies heavily SB 420's six mature plants per patient, as do many law enforcement agencies around the state.

"All member source inspections I have personally conducted were low key and conducted by plain-clothes deputies with several days prior notice of the inspection given to the member source," Helms wrote in an email.

"An industrial-sized marijuana grow operation for the sole purpose of supplying dispensaries with marijuana [is] not allowed and would likely result in legal action by law enforcement," he added.

However, without such tacit protocol in the city, many advocates worry about what will happen as more permitted dispensaries open. The city has approved a total of four dispensaries, with more than two dozen other applicants vying for permits, which the city has capped at 36.

"These issues shouldn't be resolved in court through felony charges," said Eugene Davidovich, president of the Alliance for Responsible Medicinal Access. "These issues should be resolved ahead of time through clear regulations and guidelines for patients."

However, if law enforcement does go after a grow operation that supplies a dispensary, the city could end up with a lawsuit on its hands, Cindrich said.

"If they fail to do their job and investigate the legitimacy in those cases, and they decide to chop the plants and make arrests, I believe they will be ripe for civil liability," he said.

In that case, the City Attorney's office would probably need to come up to speed fairly quickly on the evolving nuances of getting cannabis from seed to sale.

Write to joshuas@sdcitybeat.com or follow him on twitter at @jemersmith.