- The Washington Times - Sunday, June 3, 2012

A decision by Congress in 2009 to stop blocking the District’s medical marijuana program should not be construed as federal permission to grow and use the drug, according to a recent legal opinion from California.

The 9th Circuit Court of Appeals waded into the District’s fragile relationship with Capitol Hill when it ruled that disabled users of medical marijuana could not rely on the Americans With Disabilities Act to fight local ordinances that closed dispensaries in two Californian cities, even though the drug’s medicinal use is authorized by state law.

Language known as the Barr Amendment had banned the implementation of a medical marijuana program that D.C. voters approved in 1998. So four plaintiffs in the California case argued, in part, that Congress‘ decision to eventually drop the Barr language in its appropriations bills amounted to its approval of marijuana use for medical purposes.

“By allowing [the District’s program] to take effect, Congress merely declined to stand in the way of D.C.’s efforts to suspend local penalties on medical marijuana use,” the May 21 opinion by U.S. Circuit Judge Raymond C. Fisher said. “It did not affirmatively authorize medical marijuana use for purposes of federal law, which continues unambiguously to prohibit such use.”

In addition, the court said, “even if Congress‘ actions somehow implicitly authorized medical marijuana use in the District of Columbia, Congress in no way authorized the plaintiffs’ medical marijuana use in California.”

The opinion issued nearly 3,000 miles from the nation’s capital is a reminder of the tightrope walk the District and jurisdictions across the country have performed in their attempts to aid the sick and dying with medical marijuana. Unlike the states, the District’s lawmakers faced the additional hurdle - as the District does with all its laws - of waiting for Congress to either intercede or look the other way during the 30-day review period of the D.C. Council’s measure in 2010 to implement the program.

The District, which is slated to have its medical marijuana program up and running later this year, has tread carefully since then. Its recent application process forced parties interested in growing or selling the drug to waive the city of any liability if the federal government cracks down on their operations.

In March, the D.C. Department of Health approved six applicants to open cultivation centers in the city. Five cultivation centers will be in Ward 5, while a successful applicant in Ward 7 is searching for a new location after the council approved legislation that bans marijuana-related facilities on land parcels designated as a “retail priority area.” Three firms that were rejected by the District have filed suit and want the city to reconsider their applications, claiming they met or exceeded criteria to qualify for a registration.

Health officials are scheduled to approve up to five dispensaries June 25.

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