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Growing pot should be treated the same as growing grapes: Q&A with lawyer David Owen

By 
Hank Drew
SF Public Press
 — Apr 19 2011 - 12:26pm

David Owen was a freshly minted lawyer when he decided to open up a marijuana-focused land-use law firm in San Francisco. The former legislative aide to then-Board of Supervisors President Aaron Peskin had been involved in the early days of the city's cannabis regulation development.

Since opening his firm, Owen has represented SPARC, a high-end medical pot dispensary, and helps local pot cultivators navigate conflicted legal waters.

In light of regulation problems in Southern California and San Jose, Owen talked about the challenges of being a medical marijuana attorney as San Francisco's once forward-thinking regulations have become "stagnated" over  the past six years.

Question: What started your interest in medical marijuana law?

Answer: I met Eric Pearson [founder of San Francisco dispensary SPARC] when I was in City Hall, back when the city was regulating cannabis for the first time in 2005. And I watched the way the community engaged city hall. As I was going to law school, I became interested in the issue. I thought there were better ways that the people could engage government.

I was interested in criminal law, but from a policy side. I was really interested in land use law, but didn’t really want to shill for developers full time. I really like administrative law and process. And this was really the only area that I am aware of where all three of those things come together.

It’s like when a client who is a cultivator calls me and says, “Hey, can I do this?” The first question: Are you going to jail for doing what you’re doing? Second question: Can you do what you want to do where you want to do it? Third question: Do you need a permit to do it? All three of those bodies of law come together here.

And it’s a young body of law. So, if you are a band-new lawyer coming out of law school, it’s something you can get involved in. The bar is thin. And the body of law is thin. You have this unique and remarkable opportunity to make law.

As long as there are people going to jail for growing and smoking marijuana, I consider this a civil rights issue, because I think it’s an atrocity that we are wasting human resources and financial resources on prosecuting people and putting them behind bars.

Q: How is the San Francisco medical marijuana industry dealing with attempts to regulate it?

A: Where I think the marijuana community in San Francisco fragments is over what is the best approach to fight that fight and what does victory look like.

There’s lots of passion on all sides of the issue. At the end of the day, you have to remember it is about the patients. I think that if we want to really address marijuana prohibition in Washington, we are going to need as many allies in the fight as possible. Those allies are going to come from a lot of places, whether it is organized labor or the business community. But, we can’t do it ourselves. This has been a very homegrown -- no pun intended -- movement. It’s been very successful. It’s easy to lose sight that it’s been going on for 40 or 50 years. And they’ve gotten us to where we are today.

But, within that movement, there is a huge variety of opinion about the best way to get from point A to point B. If you sat down Dale Gieringer, founder of NORML (The National Organization for the Reform of Marijuana Laws), next to a dispensary operator from Los Angeles, a grower from Mendocino and a low-income patient from San Francisco, you’re going to have an interesting screaming match.

I think that anyone who is willing to serve patients in California and risk federal prosecution is fighting the good fight.

I also think there’s a valid concern that corporations are going to come in and take over. I don’t think that nearly as likely until more states than California legalize marijuana. These are corporations that are publicly traded on the stock exchange. The board of directors can be severely financially punished for making bad decisions on behalf of the shareholders. If they agree to participate in a broad conspiracy to violate federal law and the government prosecutes them and seizes a bunch of their assets, a member of the board of directors of that corporation can be sued from here to Hyannis Port.

Q: California law currently deems possession of less than an ounce of pot to be an infraction equal to a traffic ticket. How does this effect cannabis legal issues?

A: Some folks say, “Why does it matter now because it is an infraction to possess marijuana?” To me it is a paradigm issue. If I’m growing grapes, and I am making wine and selling it, I have to get a permit and pay taxes. The fundamental concept that marijuana is illegal and that we’re just creating exceptions is problematic to me. I think at the end of the day in order to truly win that fight, we have to change that entire way of thinking about marijuana.

Q: Are San Francisco’s current pot regulations good for the city and patients?

A: I think there is time for the market to evolve and I think there is time for the system to mature. If you look at San Francisco’s system, we were at the forefront in 2005. Some would argue that we are lagging behind where we could be now because we have stagnated over the last six years in terms of keeping our regulations at the forefront.

If you look at Montana, the governor is considering a bill to repeal their medical marijuana law that provides for dispensaries. Part of the problems they’ve had there that are similar to what has happened in Los Angeles, which to me is only a regulatory failure.

As with any activity, whether it is a dry cleaner, marijuana dispensary, a nuclear power plant or a bar, you have to analyze the issues that are created by that use and you have to regulate it appropriately. Los Angeles failed at that for years and is now a complete disaster. And where do we see all the litigation that might strip back the protections patients and dispensaries have? Los Angeles and Orange County.

San Francisco created a well-regulated system. We haven’t had those problems. We are starting to now, a little bit.

San Francisco created a regulatory system that worked around most of the existing operators in 2005. We created a system that grandfathered in as many dispensaries as possible. That severely limited geographically where dispensaries can be located. San Francisco went from somewhere in high 30s to the low 20s. It’s just now starting to creep back up.

If you look at the years between 2005 and 2009, the city got one application to open a new dispensary. January 2009, President Obama is sworn in and the justice department indicates its enforcement posture is changing. There are nine applications pending now and they have approved six or seven applications in the last six to nine months.

But, the city’s policy is no longer policy-based. There is no consideration of a proper geographic disbursement. There’s no consideration of a lot of the things you see in other locations that have learned from San Francisco's experiences. We don’t have a cap - I don’t know if I support or oppose a cap on the number of dispensaries. The way our policy exists now, you have this narrow geographic area where new dispensaries can file for applications. So long as you are zoning compliant, you get a permit.

What happens when you have one city block that is zoning compliant and you have 11 dispensaries? There’s nothing that prohibits it. The planning commission has said the rules are rules and we are rubber-stamping these things if they are zoning compliant.

Q: Currently more than 100 pot clubs are operating within San Jose. The San Jose City Council is considering a complete ban on dispensaries. Could this happen in San Francisco?

A: I think there are significant differences between what's happening in San Jose and the situation in San Francisco. S.F. took a very logical approach to regulating medical cannabis dispensing. Consequently, we have seen very few conflicts between MCDs and surrounding businesses/residences. In fact, I recently heard Larry Kessler of SF-DPH quoted as talking about how hard most city MCD's strive to comply with every possible rule. Conversely, San Jose has taken a confusing and slipshod approach to dealing with dispensaries allowing some anti-marijuana elements in law enforcement to claim that a crisis has erupted there.

We have seen time and again that where clear, predictable regulations are imposed, perceived safety and land use concerns are not an issue. San Francisco, Oakland, Berkeley and Sebastopol are just some examples of where this has been proven in cities large and small. I do not believe San Francisco will ever head in the San Jose direction so long as we maintain a strong regulatory program with buy-in from residents, law enforcement and patients/dispensaries. I think it's much more likely that cooler heads will prevail in San Jose and they will move more towards an S.F. or Oakland regulatory model.

Comments

 I have been waiting and also I have argued myself blue with our for profit people of a couple grow sites. What I understand is that those who decry we must challange the Federal law are not willing to fight for a simpler step of making cannabis use, horticulture and non-commercial sharing of cannabis legal for our people. The for profit people are against true cannabis horticulture freedom for the private citizen.  So we are not seeing any news from the for profit cannabis is wine folks,So I have no choice but to start campaining against cannabis commerce for 2012. Ernst 

 Thank you David Owen and the San Francisco Public Press. While I applause our California Cannabis community for trying to find a better solution we are failing to see the reality of the wishes of the people of the State of California. Perhaps Cannabis can be made into an industry and simply adopt Wine laws but Cannabis is not wine.  Cannabis is not even a manufactured goods like wine is.In Short there are no Wine trees or Beer trees for that mater. Let us talk about Horticulture and the Propositions 19 one(1972) and Two(2012). In the beginning there was prop 19 of 1972 and that sought to make it legal for us all. It was soundly defeated but what was it all about? The reader is encouraged to check out Ballotpedia.org and read up on prop 19 ( 1972 and 2010 ) Horticulture is different from Cultivation in that Cultivation has more to do with the preparing of the soil than cloning plants. Horticulture is the science of growing, breeding, seed making and generally improving plants. Horticulture can be a part of industry or the domain of the private citizen. Horticulture is what we are avoiding as the basic rights to cannabis for the people of California and let me explain why prop 19 1  & 2 failed props 19 1 & 2 addressed Commerce. First there were the Hippie Communes of peaceful people living in the rural areas of the State that offended long time conservative residents.  I experienced my own community fight a slow war on alternate life style people in Columbia California in the mid to late 70's At that time tuition to the junior colleges in the State of California was free so I saw the happy naked people on the river and the long hairs following the path through the woods to the school. So this sort of "commune" style cannabis culture along with inter-city drug dealing contributed to a 33% approval of prop 19 the First.  So in short this kind of Commerce was not approved of. Then Came prop 19 the 2nd and we had a split in our cannabis community over the intent and effect of a pro-business prop 19 the 2nd. A split which continues today over what Green we are actually trying to legalize; Cannabis Green or Cash ( profits ) Green. So what do the two prop 19's tell us? Well they represent to different boundaries . Prop 19 I lets us know the free for all system is not approved of and prop 19 II lets us know Pot-Shop system is not approved of. Yet, we all see the road ahead where there will be a majority of yes voters in the future voters of California so, what is it that California voters are saying to us?   They are saying that the solution is in the middle way.  Horticulture is a time honored right of the human race and yet prop 19 II aimed to limit production by allowing only Cultivation. Now most City people will not have access to an acre of land for a personal for a family garden but it is not unknown to have a garden large enough to feed your family so how does Cannabis fit in? Well if we give cultivation rights then basically we are defining Cultivation. If we give Horticulture rights then we are defining horticulture such as breeding plants and making seeds for perhaps future people of California. Heirloom variety and seed savers are the saviors of many plants that are not commercial successful but are very useful to human beings. Why with tomatoes alone there are over 100 varieties of which many are tasty but not extremely marketable. The most profitable tomato is a hard skinned green tomato that stands up to transport and the pressure of a tone of other tomatoes on top of it but it is not the best eating tomato it's just the most profitable. The same holds true with Cannabis.  if we limit Cannabis to market pressures then strains worthy of saving for the future people are lost.. Look at your local dispensary and see for your self.. Where is that Strain we liked in 2008 now? It was popular and a good seller but the Purps pushed it off the shelf. Should we have at least saved the genetics?  No need to do such things when the Green we are trying to save is (profits). So since California has voted No on two different cannabis initiatives and it is obvious prop 19 II is just a new form of prohibition aimed at empowering sales and clearly California is against that let us focus on a core concept that if it cannot pass then we cannot pass anything. It is time to split these goals up so that we do not lose in 2012. 1. Allow private horticulture for non-commercial purposes by citizens of California through a State issued permit system similar to the Medical permit system of the Dr's recommendation. 2.  Craft business goals in a business Initiative.  3. Craft agriculture ( hemp ) program in a third Initiative and hopefully use hemp to make bio-fuels and clean the aquifers of the very polluted farm lands.I am not privy to business and agriculture so I can only weigh in on the private horticulture. Private horticulture is not Wine! Classifying growing some Cannabis as making wine is beyond protecting the rights of people to grow the plants of this world for food, fiber and medicine. Now lets tale red county blue county.  The only thing here in Stanislaus county that will pass is horticulture rights for private citizens.  We just voted no on a dispensary ( our local jurisdiction rejected an another application ).  Retail Cannabis is not welcomed here.So why play the prop 19 game in 2012?  Let us grant right to the people all over the state and then we work on Commerce. If we don't we will still have Cannabis millionaires but our people will still be going to prison. So it is time to not worry about all that money to be made it is time to swing left and champion Horticulture rights for us all. You know what they say.. Sell a man some Cannabis and he smokes for a day allow him to grow and we all smoke for ever. Split the efforts into two or three initiatives in 2012.  There is no honor is dragging Cannabis freedom for the people down with a special interest Business initiative again.I have more to say on this but I hope it is enough to get us started.You may email me @ Ernst_Berg@Sbcglobal.net