IMAGE: Illustrations © William L. Brown
LETTER TO THE EDITOR • DAVID BORDEN
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.
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.