- The Washington Times - Monday, February 9, 2015

The D.C. Council on Monday downgraded the scope of a hearing on regulating marijuana sales to avoid legal concerns raised by the city’s attorney general — a move emblematic of the hurdles congressional oversight has created for the District in its quest to legalize pot.

Over the weekend, the D.C. Attorney General Karl Racine alerted council members that holding a hearing on the proposal would violate a congressional ban on spending money to enact legislation that loosens drug laws in the city. Warned that improper action could earn officials and staff jail time or $5,000 fines, council committees instead held an informal roundtable discussion to enable dozens of witnesses assembled Monday to testify on the issue.

The wrangling over the hearing is just one of a series of potential problems the city has encountered as it has tried to move forward with marijuana legalization following voters’ approval of Initiative 71 in November.

“The elephant in the room is Congress,” said D.C. Council Chairman Phil Mendelson. “To the extent that there is some question about what we are doing, it’s Congress that is creating this problem, and we are doing our best to understand and to do what we can.”

Congress passed a spending bill in December that blocks the District from spending any money — federal or local tax dollars — to enact legislation that would legalize or reduce penalties associated with the recreational use of marijuana or any other Schedule 1 drug. City lawmakers have taken the legal stance that Initiative 71 was self-executing and took effect when voters approved it — well ahead of the adoption of Congress’ spending bill.

But Initiative 71, passed by 70 percent of D.C. voters, does not set up a regulatory scheme for the sale and taxation of marijuana. In holding Monday’s hearing, local lawmakers tried to move forward supplemental legislation that would do so.

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In his letter to the council members, Mr. Racine said that although he supports the effort, he believes the council would violate the federal Anti-Deficiency Act — which prohibits the D.C. government from spending money without prior approval from Congress — by holding a hearing on the bill.

“The issue here is not whether Initiative 71, which was, in our view, enacted before the 2015 Appropriations Act became effective, but, rather, whether the hearing on this bill — which was not enacted by the time the rider took effect — would violate the rider. We believe it would,” Mr. Racine wrote in the letter. “Any such hearings, from my view, would violate federal civil and criminal code provisions.”

Mr. Racine’s analysis is contrary to that of the council’s chief attorney, David Zvenyach, who argued that the city would be prohibited only from holding a second official reading of the bill and taking a final vote on the proposal.

Witnesses who testified in favor of the proposal gave suggestions to improve the law, with some advocating for the council to do away with the 2-ounce limit on the amount of pot a person could legally possess under the law and others suggesting proceeds from marijuana sales go to communities harmed by past drug wars.

Others voiced opposition to legalization, worried about the harm that would come from the use of the drug by children.

Initiative 71, which is projected to become law by the end of February, makes it legal to possess up to 2 ounces of marijuana and for D.C. residents to grow up to six marijuana plants in their homes.

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Witnesses at Monday’s hearing expressed disappointment with the legal quagmire the District is facing over the future of marijuana legalization, with many urging lawmakers to take a more confrontational stance.

“Let’s force Congress’ hand an openly defy them. You all are simply doing your jobs,” said D.C. resident Josh Burch. “I urge you to press forward and don’t back down.”

D.C. Council members expressed similar frustration.

“Congress doesn’t mess with us when it comes to managing our budget across the board,” said David Grosso, at-large independent and sponsor of the marijuana bill. “The only time they really step in and interfere in our lives are on social issues … At some point we are going to have to step up as a body and as a city and say, ‘Enough is enough.’”

• Andrea Noble can be reached at anoble@washingtontimes.com.

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