Marijuana attorney says dispensaries near schools could survive scrutiny from feds

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Although no letters have been sent by the U.S. Attorney's Office, the rumor that the feds are going to be shutting down dispensaries in violation of the Drug Free School Zone laws has been enough to create a paranoid buzz in the medical marijuana community.

But while it's anybody's guess as to if or when that might happen and what action it could entail, marijuana attorney Warren Edson says dispensaries and grows might have a fighting chance if things play out the way he thinks they will.

According to Edson, there is no uniform set of Drug Free School Zone laws. Essentially, the feds set up guidelines for what rules they wanted states to adopt and tried to use school funding to make them happen. However, each state adopted its own language. And while the regs generally follow the same federal guidelines, they all differ slightly from each other. For example, some states created zones only 300 feet in diameter, while others opted for 3,000-feet zones.

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Warren Edson.
Currently, state medical marijuana laws prohibit centers from being within 1,000 feet of schools or daycare centers. No doubt the intent was to align with the existing Drug Free School Zone laws, which also use a 1,000-foot standard. So while a few dispensaries are grandfathered in, the majority are not within 1,000 feet of an education facility.

The problem is, Colorado's laws not only include schools, but parks, libraries and public-housing developments. And according to Edson, the 1,000-foot rule applies from boundary to boundary, not front door to front door -- which means that a lot more shops and grows could be in trouble than just ones near schools.

How many? It's hard to calculate. But a quick glimpse at dispensaries listed on WeedMaps shows nearly two dozen shops near parks, libraries or schools in Denver alone -- and that doesn't include grow operations, which aren't listed.

But unlike other states, Edson says Colorado's laws are uniquely specific regarding what constitutes a drug-free school zone. That distinction, Edson says, could be the one straw of hope for dispensaries. He points to a 2006 report compiled by the Justice Policy Institute that talks about the uniqueness of Colorado's Drug Free School Zone laws: "Colorado lawmakers restricted the state's 1,000-foot drug-free zone to areas that are accessible to the public, exempting private residences and other non-public locations where the risk that schoolchildren would accidentally be exposed to drug activity is low." The report goes on to say that Colorado courts have determined that "the state must show that the defendant intended to distribute the controlled substance to a person within or on the grounds of the school or housing development in question."

Edson puts it another way: "If I'm across from East High School and I sell you a quarter, they are going to increase the punishment for me. However, if I am in my house [less than 1,000 feet away] and I am not maintaining my house as a drug den and make that sale, it doesn't apply to me, because it isn't open to the public."

And since medical marijuana patients have to show a state-issued medical marijuana license and any patients under that age must be accompanied by an adult to even walk through a dispensary door, Edson says it would be a stretch to say centers are open to the general public in this state. Further, it would be even harder to show that restricted-access grows were open to the public, because only licensed employees can enter them.

"To pick and chose [who they shut down], they would have to impose local rules like they did in California," he maintains. "So for them to do it here, they would have to impose a different state's standards on us, because our courts have interpreted this as such since 1992."

But while he's hopeful that he's found a loophole, he still recognizes that it might be a futile effort. "The feds can come in and say 'you all suck' and that's that."

More from our Marijuana archive: "Regulate Marijuana Like Alcohol Act aims 160,000 signatures at 2012 ballot" and "Marijuana: Pot will be rescheduled if Obama or Ron Paul win, advocate says."

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Doug McVay
Doug McVay

Unfortunately events seem to show that I was right after all. On Jan. 12, 2012, Westword reported: "Medical marijuana: U.S. Attorney sends seizure threat to 23 dispensaries"http://blogs.westword.com/late...Kudos to Westworld for obtaining and publishing a redacted copy of the AUSA's letter - which btw specifically heightened federal penalties for violations within 1,000 feet of school properties as defined in 21 USC Sec 860.

Colorado Mmj Patient
Colorado Mmj Patient

While they could survive, who is going to fight the feds when they are looking at a long prison sentence. I bet they will shut down or plead out if it comes to it. 

Gary Rose
Gary Rose

Every time someone sticks their chin up and says "it doesn't matter because Federal Law supersedes State Law", I think, really????

Because the SUPREME LAW OF THE UNITED STATES OF AMERICA, supersedes the Federal Government, in fact, it DEFINES them. Everything the DEA does for the last 40 years is in direct defiance of that law, so who is superseded here? 

hengdoo
hengdoo

That whole thing sounds kinda crazy to me dude. WOw.www.Total-Privacy dot US

Mikoe Wozz
Mikoe Wozz

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Citizen80919
Citizen80919

The paranoid buzz is not coming from the MMJ industry.  It is coming from the media.

jhvh111
jhvh111

Do we have the same laws about liquor stores? Seriously, this is just plain silly

Cdoggg674
Cdoggg674

 amen. i watched a video of a council meeting concern that there was a despinsary within 150 feet of a school but yet they have a liquor store on every corner. Makes no fuckin sense. Its ok for alcohol to be sold cause its legal and its legal to be prescribed these medicines that kill ppl everyday. Its ridiculous

Doug McVay
Doug McVay

Interesting article. One thing, re

>>>"According to Edson, there is no uniform set of Drug Free School Zone laws"<<<

Yet 21 USC (the Controlled Substances Act) Subchapter 1 (Control and Enforcement) Part D (Offenses and Penalties) Section 860 Distribution or manufacturing in or near schools and colleges, Subsection (a) Penalties states:

>>>"Any person who violates section 841(a)(1) of this title or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b) of this section) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this subsection. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana."<<<

I'm not an attorney but my guess is that if the feds refer to proximity to schools, they'll use that provision, which they would ordinarily use to enhance penalties for distribution - makes sense, since the feds regard even state-legal cannabis dispensaries as illegal operations. They certainly wouldn't use state standards.

Warrenedson
Warrenedson

If the feds come in under federal law they would wipe out all mmj as all mj is illegal under federal law if it is 6 feet or six miles from a school.  Ie: if they were to cite Federal rules, they would just wipe them all out and not pick and choose.   In California the Feds sent out letters targeting Cooperatives and their grows that are within 1,000' of a school zone, parks, ect.  as defined by the rules of California.  For them to write similar letters here in Colorado they would have to site another jurisdiction's regulations and apply them to Colorado since Colorado's school zone rules only apply places open to the public, which MMCs and OPCOs are not. 

Donkey Hotay
Donkey Hotay

So if a crackhouse formed an addict's club with membership requirements, it could avoid the enhanced Colorado penalties since it isn't "open to the public" ?

Fascinating.

Doug McVay
Doug McVay

Btw Warren, here's what CA NORML said about the US Attorney for Northern California's actions regarding dispensing collectives in San Francisco:>>>"The US Attorney of Northern California has threatened dispensary landlords with property forfeiture for operating too close to schools and parks, citing a federal drug-free school zone statute that prescribes enhanced penalties for operating within 1,000 feet of schools and playgrounds. However, California law allows dispensaries and collectives (like liquor stores) a 600 feet buffer zone from schools, with further restrictions as prescribed by local ordinance."<<<http://www.canorml.org/news/sf...(CA NORML new release 10/24/11)

There's a copy of one of those letters athttp://blogs.kqed.org/newsfix/...The letter quite clearly refers to violations of federal law, and also makes clear that the penalties for such federal violations are enhanced because of proximity to schools.Dispensaries should certainly be safe from state sanctions if they are within state laws, yet being state-legal does not mean anyone is safe from the feds. The notion that the feds are going to respect state law is the delusion from which many of my colleagues in the medical cannabis industry suffered; hopefully we're all seeing things much more clearly now.

Cheers,Doug McVay

Doug McVay
Doug McVay

Actually no. If they had the resources, time, energy, and a lack of concern about PR, the feds could indeed come in and bust everyone. They don't, and it's not because the dispensaries are or are not within state rules. The feds don't try to bust everyone because they lack sufficient resources, time, etc. As far as the "1,000 foot" rule is concerned, please refer to the letter sent by the US Attorney for Eastern Washington to WA Governor Christine Gregoire, which specifically cites 21 USC Section 860 - the letter is athttp://www.politickernj.com/fi...which the letter quotes thus:>>>"- 21 USC Sec. 860 (making it unlawful to distribute or manufacture controlled substances within 1,000 feet of schools, colleges, playgrounds, and public housing facilities, and within 100 feet of any youth centers, public swimming pools, and video arcade facilities);"<<<Again - there's no reason to believe that the feds are going to abide by state rules. If they were, they'd leave medical cannabis dispensaries alone.

Monkey
Monkey

The feds are practicing with Cali, they want to see if scare tactics will work. Haag said they will start with proximity to schools not end with that. The feds are essentially telling people to go underground and they wont have trouble, scaring them away from the open market so they don't waste resources on them, making threats to push people out is much easier than actually doing something. If they did that here the same thing would happen, many places would close because of the threat, very easy. After they see what their threats accomplish, they will improve those threats and move to Colorado. The feds closed countless operations in Cali just from a threat, they don't want to arrest us, they just want us underground. The big players that have too much to loose will stay and fight and unfortunately those will be the ones that loose everything. I know you have to instill hope in your clients so they don't run away but please inform them that hoping for the best is good as long as you prepare for the worst.

Michael Roberts
Michael Roberts

Thanks for adding these details, Warren. Much appreciated.

Warrenedson
Warrenedson

Colorado Revised Statute 18-18-407 (2)(a)

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