House clears the way for marijuana dispensaries

Medical marijuana. Photo by Troy Holden,

Medical marijuana. Photo by Troy Holden,

The Vermont House voted 99-44 on Thursday to allow four marijuana dispensaries to serve the several hundred patients now registered medical marijuana users.

The vote was largely along party lines. More than a dozen representatives voted against the majority of their Democratic or Republican colleagues; only the five Progressives stuck together as a party, in favor of the bill.

Under existing law, Vermonters with a debilitating medical condition are permitted to cultivate and use marijuana, as long as a doctor certifies that the drug offers unique relief for medical symptoms. The new law would allow the controlled, state-sanctioned sale of marijuana. The Senate passed S.17 with a vote of 25-4 in mid-April.

Supporters in the House argued that medical dispensaries are a logical outgrowth of actions the legislature took earlier this decade. Critics said the bill enables Vermonters to break federal law.

Lawmakers moved the bill forward on Thursday in spite of a warning from Vermont’s U.S. Attorney that the U.S. Department of Justice will enforce the federal law against the manufacture and distribution of marijuana. Legislators amended the bill to give the governor authority to suspend the law if so needed. Rep. Eldred French, D-Shrewsbury, said the dispensaries don’t raise public safety issues. He argued that the 2004 law that allows for medical marijuana cultivation doesn’t go far enough because it creates a barrier for people who lack the resources to grow the plants.

The existing law, he said, effectively requires users to grow the plant, “which is expensive and difficult and unlike anything else we require anybody else to go through to relieve their pain.”

“We did not provide them (patients) with a way to obtain the marijuana that they need to ease their suffering,” French said. “And if we can’t provide them with a way to do that without insulting their dignity and making them involve themselves in what is a criminal activity in the state of Vermont, by going out and trying to buy it elsewhere, if we can’t provide that, I think we’ve failed our duty.”

Many lawmakers voted against the bill in response to a letter from Tristan Coffin, U.S. Attorney for Vermont, addressed to Keith Flynn, the commissioner of the Department of Public Safety. In it, Coffin noted that the Department of Justice under the Obama administration has decided not “to focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law.” However, he continued, “we will enforce the CSA [Controlled Substances Act] against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”

In response to the Coffin letter, lawmakers added a provision giving the governor power to “suspend the implementation” of marijuana dispensaries “if the governor determines that it is in the interest of justice and public safety.” The response drew attacks from members who did not want to vest the governor with unilateral authority to suspend the law.

Rep. Kurt Wright, R-Burlington, directly attributed his no vote to the Coffin letter. “I cast a reluctant no vote on S. 17 because we have in our possession a clear message from the U.S. Department of Justice, stating their concerns with regard to this legislation,” Wright said. “Our understandable desire to help people has caused us to pass a bill that is not ready and sets us on a collision course with the federal government.”

Others opposed the legislation based on a perceived duty to uphold federal law. Rep. Brian Savage, R-Swanton, explained that he voted no because, “I will never vote for legislation that is in violation of Federal law, the laws that I have taken an oath to uphold.” (The Vermont Representatives’ oath makes no mention of federal law; it binds each Representative to conduct him- or herself “as a faithful, honest Representative and guardian of the people.”)

The debate led to a rare procedural question in which Rep. Duncan Kilmartin, R-Newport, was asked to stop speaking because his remarks veered into the realm of personal attack.

Max Thayer and his mother, Susan, lobbied lawmakers to pass the medical marijuana dispensary bill. Max suffers from kidney disease and smokes marijuana to relieve his symptoms. VTD file photo.

“I’m also concerned that we are, under the definition of aiding and abetting, becoming aiders and abetters of criminal activity,” Kilmartin said. “We hear these slicing and dicing words on this floor, claiming we’re not doing that, but we are. You know something; we’re cowards, because my words now, the votes which I will make in a few minutes, even if it favored this bill, are absolutely immune from any consequences except the electorate turning me out next time. That’s it. So we hide behind an immunity with our winks, our nods, and our …”

At that point, Kilmartin was interrupted with a point of order question from Rep. Richard Marek D-Newfane. “Mr. Speaker, I’ve listened to this presentation, and I’m afraid it has stepped over the bounds of attacking the integrity and motives of members,” Marek said.

That declaration led to a five minute consultation at the podium. Rep. Willem Jewett, D-Ripton, found the point of order “well taken.”

“While every member has right to challenge the actions of the body and to express an opinion in opposition to the body, that right has limits when we speak in a derogatory or an insulting way, either towards individuals or towards the group,” Jewett said.

Rep. Tom Koch, R-Barre Town, took issue with the bill not because he thought it presented a public safety issue, but because it authorizes the violation of federal law.

“This is a sea change,” Koch said. “What we did in 2004 is simply say that we were not going to prosecute people under own Vermont law for using small amounts of marijuana when they have identified themselves with the public safety department and gotten on a list of people who will not be prosecuted. We have that ability to do that, we did it, and I think it was the right thing to do.

“We know what the federal law is,” Koch said. “There are processes for changing it. Those processes need to be honored. That’s what democracy in the United States of America is about — not passing a law that simply disregards it.”

The federal government has claimed authority under the interstate commerce clause of the Constitution to regulate sales of marijuana, even if it is grown, processed, sold, and consumed without crossing state lines.

Under the bill, four dispensaries may be established to serve a maximum of 1,000 patients. That’s three times the number of currently registered patients. The Vermont State Police would regulate the dispensaries. Supporters say Vermont is the only state in the nation that sets up the dispensaries under the supervision of the Department of Public Safety.

Patients may buy no more than two ounces of marijuana per month from the dispensaries, which is the maximum amount that patients may possess under current law.

According to Rep. Chris Pearson, P-Burlington, medical users of marijuana are so eager to have a legal way to obtain relief from their symptoms without cultivating their own plants or hiring their own marijuana gardener that they opposed his efforts to decriminalize marijuana possession.

“They feared,” he explained, “that our decriminalization bill would muddy the waters and hurt the chances of them to get medicine. Years ago, under a Republican-controlled House and a Republican governor, we acknowledged that there are worthy, medicinal properties of marijuana. This bill simply lets little old ladies get medicine their doctors believe necessary.”

The bill has gone to the Senate, which suspended rules and took it up for immediate consideration.

Carl Etnier

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