Jun 102011
 

Linda Nebeker says she’s been losing a lot of sleep thinking about the future of her medical marijuana dispensary.

The head of the Fig Garden’s Central Valley Collective saw five medical marijuana dispensaries raided by sheriff’s deputies last week — a sweep she thinks was unwarranted — and she fears she may be next.

More worrisome for her, however, is that the county is drafting regulations that are expected to ban, or at least severely restrict, the 20 or so storefront marijuana outlets now in operation, including hers. The ordinance, whose details are still being worked out, is due to be finished next month, Kurtis Alexander reports in the Fresno Bee.

“There’s never been any clear direction for us, and now they want to shut us down,” said Nebeker, who manages her member-run collective on Shaw Avenue with her family.

While advocates of marijuana say the county is trying to run their medically important trade out of town, county leaders believe it’s created more trouble than it’s worth — with dispensaries becoming a neighborhood nuisance and growing financially corrupt.

To begin with, dispensaries operate on shaky legal ground. Federal law bans the drug while state law allows it but under ambiguous terms. Dispensaries, for example, must operate as nonprofit collectives, a structure that remains open to interpretation and on June 1 prompted the Fresno County Sheriff’s Office to crack down on shops allegedly making a profit.

And then you’ve got the neighbors. Many who live near dispensaries complain about crime and bad behavior that sometimes follow the once black-market trade. They’ve expected local leaders to do something about it.

Neighborhoods disrupted

Last summer, Fresno County supervisors enacted a moratorium on new dispensaries — to gain time to plot their next move. Since then, they’ve indicated they want to go a step further.

“I think we saw [in the raids] how devastating these dispensaries are to neighborhoods,” said Supervisor Debbie Poochigian, who believes many operate just to make money and sell to recreational users. “People smoke on the premises. They leave, and they drive away erratically. We’re just very fortunate that children haven’t been hurt.”

The ordinance that supervisors have asked county planners to draft would prohibit storefront sales of medical marijuana. That would mean most existing dispensaries would be in violation of the law.

“I’d like to see a process set up that would start phasing out the ones in operation,” county Supervisor Henry Perea said. “I was very supportive of the concept of medical marijuana, but fast forward to where we are today.”

Perea now believes the drug is widely abused and that many are in the business for profits.

Sheriff Margaret Mims said her investigation, which led to the recent crackdowns in the county island of Tarpey Village and Friant, confirmed that some dispensaries are out of compliance with state law.

Most cities in Fresno County, including Clovis and Fresno, already have banned storefront marijuana sales.

That’s led to a spike in dispensaries in the county’s unincorporated areas and exacerbated problems for the county — another reason supervisors say they need a prohibition.

Serving the sick

But a county prohibition also means sick people who use marijuana will have few options for getting their medicine in Fresno County, a reality that disturbs advocates of the drug.

“It’s going to force respectable people to go to the streets,” said Dennis Nebeker, Linda’s husband at the Fig Garden collective.

The Nebekers, whose primary business was computer training before opening their collective two years ago, said their change of occupation was inspired by a late family member. Dennis’ sister, in her 30s, suffered from lung cancer and found that marijuana eased her pain, boosted her appetite and warded off nausea.

“This is how we kept her alive,” said Linda, who says she now wants to help others overcome the obstacles and negative associations she experienced when obtaining medical pot.

“I was a business owner. I was a mother. When my sister-in-law was sick, I had no idea how to get marijuana.”

Linda uses marijuana herself to treat insomnia and high blood pressure.

The Nebekers said if county leaders are concerned about problems at some dispensaries, they should set up rules to control those problems, not ban the dispensaries outright.

Their collective operates professionally and in compliance with state guidelines, Linda said. She believes some of the dispensaries that were raided last week probably do, too.

Setting up legal battle

Any ordinance approved by the county is likely to face legal questions.

The Nebekers are among several operators of collectives who have threatened to challenge regulations putting them out of business.

Given the 1996 Compassionate Use Act, which allows the sick to use marijuana, advocates of the drug have argued that cities and counties don’t have the right to ban its distribution.

“If the county tries to regulate us out of business, that’s unconstitutional,” said the Nebekers’ attorney, Brenda Linder.

At least three cases dealing with how much authority local governments have over medical pot are pending in state courts. State legislation to clear up the matter has also been proposed.

But Fresno County Attorney Kevin Briggs said the courts so far have shown that cities and counties maintain say over local land use, including whether to zone for storefront collectives. The county can rightly pursue a prohibition, he said.

Such a prohibition likely would drive collectives into private places, such as homes, say many in the business. State law allows consumption of the drug here, though marijuana advocates have complained that more discreet locations would make the drug harder for people to get.

Supervisor Susan Anderson, who has been more tolerant of marijuana sales than some of her colleagues, said she’s open to seeing collectives grow and distribute in industrial areas.

The county’s forthcoming ordinance is expected to deal with cultivation as well as distribution and make permanent an existing moratorium on outdoor growing. The regulations are expected to lay out strict guidelines for indoor growers.

Legal experts specializing in medical marijuana say the county’s regulatory intentions for dispensaries appear consistent with the law.

“It’s pretty evident that cities and counties are allowed to make those kinds of zoning decisions and prohibit medical marijuana dispensaries from operating,” said Ben Rice, a Santa Cruz attorney who has argued cases at the state and federal levels. “I’m not saying this is the right thing to do, but it’s what they can do.”

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