LETTER TO THE EDITOR: Medical marijuana buffer zone

IMAGE: Illustrations © William L. Brown

LETTER TO THE EDITOR • DAVID BORDEN

Dear Voice,

As a ten year resident of Takoma Park, I’m pleased our medical marijuana debate is over how best to regulate it rather than whether to allow it. In my professional life I run the organization StoptheDrugWar.org. Although our focus has been more on making the case for non-prohibitionist approaches to drugs, less on the details of how marijuana is getting regulated, we have closely followed the regulations for medical and adult use marijuana as they’ve developed around the country.

The topic most discussed here right now is whether there should be a “1,000-foot rule” for how far a medical marijuana dispensary should be from the nearest school — as argued for by Takoma city councilmember Tim Male in list emails — a 500-foot rule as called for in an amendment filed by Montgomery County councilmember Tom Hucker, or some other way of determining what an appropriate location is. Seth Grimes has come out against either rule in an editorial published in the Voice, Hucker has offered his rationale and called for discussion.

Unfortunately, the 1,000-foot rule has often been misreported in the media, and as a result is not well understood. I am writing to provide some clarifications I believe will be helpful in the discussion, including the one scheduled for this week’s Takoma Park council meeting.

First, it’s not the case, as has been argued, that locating a dispensary more than 1,000 feet from a school or playground prevents it from being targeted by federal authorities. Marijuana is illegal under federal law in any location. There are also no references in the Obama administration’s guidelines on this to a specific distance. What 1,000 feet does is enable prosecutors to seek a longer prison term for a defendant under the “school zone” law, should they go the criminal prosecution route, as opposed to merely closing a facility as done more commonly. But even without the school zone law enhancement, the penalties are very severe. It’s also true that prosecutors have sometimes used the 1,000 foot idea as justification for moving against a dispensary, but that may have been mere pretext.

Second, the law regarding medical marijuana dispensaries has changed. In 2014, Congress passed appropriations language that leaves medical marijuana illegal, but bars the Department of Justice from spending funds to interfere with states’ implementation of medical marijuana laws, and renewed the last in 2015. Although appropriations bans are not airtight and are subject to legal wrangling, a federal court in San Francisco ruled last fall on its basis to lift a longstanding injunction that had closed the Marin Alliance for Medical Marijuana.

The federal circuit governing Montgomery County isn’t obligated to rule in the same way, absent a Supreme Court ruling, and different cases will raise different legal questions that could affect their outcomes. However, a ruling in one circuit does have persuasive power for other circuits. Similarly, Congressional appropriations are an annual affair, and Congress could fail to renew the language in some future year. A future administration that is hostile to marijuana stores, or less inclined to constrain the actions of its US Attorneys, could try to find ways to get around the law or to push its boundaries. It’s not a perfect solution for dispensaries, and there are ways the situation could regress. Nevertheless, language of this type tends to have a lot of sticking power from year to year, once established.

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It’s significant that the two Republican-controlled chambers of Congress enacted this language, and did so through amendments that had to be voted on explicitly by their members, for two years in a row; and it’s significant that a court has taken an action to enforce it. It’s also worth noting that there have been no actions against dispensaries based on the 1,000-foot threshold since the administration’s guidelines were released in 2013. All of this points to a significantly reduced likelihood that federal officials would target a dispensary in Maryland if it is operating in compliance with state law.

One could argue that even if the 1,000 foot threshold would only provide limited protection for Maryland’s dispensaries, that those improved odds are worth it, or that it’s worth it in case things change. But this fails to account for the costs on the other side. The 1,000-foot rule is a blunt instrument that hasn’t played out rationally in the states and cities that have used it. It unnecessarily rules out many appropriate locations, some of which could potentially be preferable than other locations it allows. Stories abound of dispensaries being barred because of rules of this type, despite a highway passing between a school and the location, or a tall set of impassable buildings lying between them. Should a rule of this type get adopted more widely in this region, a scenario which action by our city and county could catalyze, its impact is likely to be far greater in our dense urban areas than in the more sprawling cities found on the west coast.

Some more recent laws have departed from the 1,000-foot trend as well. One example is Massachusetts, where health regulators opted for a 500-foot guidance following the passage of a 2012 medical marijuana voter initiative, and have allowed communities to opt for even more lenient rules. Another example is Seattle, whose council voted last month to reduce their limits for medical and adult use stores from 1,000 feet down to 500 feet generally, and 250 feet in the downtown core.

Maryland’s legislature wisely did not impose a rigid rule for this. That means our county and city have the freedom to explore more sophisticated options. I’m not sure what the best system is, but I believe it would involve taking a careful look at the specific facts of any given location. All of us have a stake in seeing Maryland’s medical marijuana system do well, so it’s a worthy area for discussion.

There are other legitimate issues that have been raised in the debate. One is the fact that federal law still prevents marijuana businesses from accessing the banking system, creating the public safety problem of dispensaries becoming targets for robbery. The marijuana itself fuels that risk. However, there are other businesses that rely heavily on cash and have that problem — banks, for example. Dispensaries make use of security services, which helps to reduce crime, as does having a storefront occupied by a functioning business rather than sitting empty. Dispensaries have even been known to assist law enforcement agencies in their cities, providing access to video surveillance footage and so forth. In Los Angeles, a RAND Corporation study found there was less crime in areas that have dispensaries than other areas. (The study was criticized due to an error the research team made in their initial dataset selection, but a redo of the study using appropriate data found the same result.)

Another question is whether proximity to dispensaries could increase youth access to the substance. Males’ email pointed to media reports in Colorado about diversion to underage marijuana users. But studies to date have found reduced youth use in Colorado as the marijuana industry has grown, and no identifiable impact on youth use general in medical marijuana and legalization states. It is too soon to draw conclusions, and things may change. But statistically at least, it’s a case of “so far, so good.”

Maryland is entering new territory with the passage and implementation of medical marijuana, and the discussion taking place about regulations is healthy. Based on the record in other states and DC, including my personal experiences visiting facilities or just walking around their neighborhoods with friends, I believe time will quickly show that dispensaries are easy to live with, and offer their communities benefits.

David Borden

3 Comments on "LETTER TO THE EDITOR: Medical marijuana buffer zone"

  1. Thanks David for a well-written piece of analysis. Let’s hope our elected officials read it slowly and heed your ample guidance.

  2. Robert Lanza | February 3, 2016 at 10:50 pm |

    The Takoma Park City Council conducted a work session February 3 2016 to discuss the potential for a Zoning Change to restrict the locations of medical marijuana facilities in TP. After the work session the City Council conducted a straw poll and polled 4 – 3 to move forward to explore either the proposed ZTA (the Tom Hucker County Council bill) or some other zoning change to restrict marijuana dispensary locations. Polling for were Stewart, Male, Qureshi, and Kovar, Polling against were Smith, Seamans, and Schultz. I encourage everyone who is interested to listen to the work session discussion replay available on the city website.The 20-minute work session was about an hour long (ended at approx 9:30 PM). There were also several public comments towards the beginning of the City Council meeting that addressed the potential for a zoning change.

  3. David Borden | February 5, 2016 at 12:41 am |

    Thank you, Takoma Times, for the compliment. I have a few remarks related to last night’s discussion.

    First, although I found the discussion interesting, I was surprised that Councilmember Male continued to argue that requiring dispensaries to be located more than 1,000 feet from a school (up from the 500 feet in County Councilmember Hucker’s bill) would protect them from federal action in the event that a future presidential administration were to take a hostile stance toward them. It is flat out not the case being more than 1,000 feet from a school provides that protection under federal law, as my piece here demonstrates.

    Currently what protects dispensaries more than anything is that Congress passed a law in 2014, renewed again last year, which forbids the Dept. of Justice from interfering in states’ implementation of their medical marijuana laws. If federal prosecutors were to find ways around this legislation, which is possible, or if Congress fails to renew it, then nothing under the law would prevent them from moving against a dispensary anywhere if they so chose. You could put a dispensary in the middle of the Mojave Desert, a hundred miles away from anything, and the feds could close it, forfeit the property, and lock up its operators for the rest of their lives, under those circumstances.

    The only difference within a 1,000 feet of a school is that a defendant who isn’t facing a life sentence, could spend more time in prison than for a dispensary that was more than a 1,000 feet away from the school. Although one finds headlines about prosecutors being influenced by that 1,000 foot threshold, when looking at what happened after the initial stories appeared, it’s clear that it hasn’t made the difference in the end, especially not in recent years.

    My second remark has to do with a point that Councilmember Qureshi made, and which I actually had some sympathy to, but which on further examination I believe does not hold up. Rizzy noted that, as I’d pointed out, dispensaries actually don’t get a large amount of foot traffic into them. Although he doesn’t share the concern that Male and Mayor Stewart have about the distance from our schools, he’d rather that the businesses we have on “Main Street” be ones that many people will go in and out of, to foster a vibrant and active downtown.

    Today I took a spin around our downtown areas and did a scan of the various kinds of businesses that we have there, and I noted a good number of them which are likely to get a comparable or even smaller number of visitors on an average day than a dispensary would, and which one would not naturally enter under ordinary circumstances — an animal clinic, a computer clinic, an optician, two picture framers, come to mind. Of course there are more on the DC side of Takoma too. One would have to deal with all these kinds of storefronts to address the issue that Rizzy raised; blocking just one potential store would not make a significant impact for that particular concern.

    There may be other reasons for thinking about where a dispensary should be allowed to locate, but I don’t see how either of these particular concerns adds up.

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