The District of Columbia could soon earn a new nickname: the Wild West of marijuana.
In 10 days, a voter-approved initiative to legalize marijuana will take effect, D.C. officials say. Residents and visitors old enough to drink a beer will be able to possess enough pot to roll 100 joints. They will be able to carry it, share it, smoke it and grow it.
But it’s entirely unclear how anyone will obtain it. Unlike the four states where voters have approved recreational pot use, the District government has been barred from establishing rules governing how marijuana will be sold. It was prohibited from doing so by Congress, which has jurisdiction over the city.
In December, after voters overwhelmingly approved a referendum to legalize pot use, opponents in Congress tried to upend the result by blocking any new rules establishing legal ways to sell it, protections for those caught purchasing it or taxes to cover its social costs.
D.C. officials say that Congress’s action did not halt the initiative, but it did set the city up for potential chaos. Barring last-minute federal intervention, the District’s attorney general said that pot will become legal as early as Feb. 26 without any regulations in place to govern a new marketplace that is likely to explode into view.
Even some supporters of the initiative are worried. At best, they predict an uncertain free-for-all where marijuana enthusiasts immediately start growing and smoking at home — and testing the limits of a law that does not allow for public consumption or sale. At worst, they say, as entrepreneurs push ahead with the business of pot, unregulated businesses will start popping up with no means to judge the safety of their product.
Two ballrooms on Capitol Hill are already reserved for a pot expo on Feb. 28. A date for a massive marijuana seed giveaway is in the works for early March. Some are planning “cannabis clubs” with membership fees and access to the plant. Others hope to offer high-end catered dinners cooked in marijuana-infused oils; recently, an underground test dinner was served a mile-and-a-half north of the White House.
“Where can it be bought? Sold? Eaten? Smoked? We’re not going to have answers to any of that, and that makes me very concerned,” said D.C. Council member David Grosso (I-At Large). And as the consequences play out in the nation’s capital, he said, it could set back the entire movement: “Let’s be responsible about how we do this so we don’t have a negative image coming out.”
D.C., Congress play chicken
In Colorado and Washington state, voter-approved ballot measures making pot legal prompted state leaders to create highly regulated industries, with far more rules than those governing the sale of alcohol or cigarettes.
In Colorado, every marijuana plant grown for sale must be tagged with radio-frequency identification and tracked from seed to sale. Washington state is even more restrictive, setting caps for how many stores may sell pot and requiring reporting of every milligram that goes out the door to consumers.
“The District will be unique because you can’t technically sell cannabis directly,” said Tiffany Bowden, co-founder of ComfyTree, a pro-legalization group that is hosting the expo, where more than 200 marijuana companies, consultants and entrepreneurs are scheduled to display their goods.
“All that means is the traditional dispensary model as we know it will not happen,” Bowden said. “But that doesn’t mean the cannabis industry is going to be asleep. It’s actually going to be thriving in Washington.”
If that prediction comes true, the plethora of pot will thrust the nation’s capital into an unparalleled legal and law-enforcement quandary. And it will be the direct result of Congress’s willingness to exercise its constitutional power to interfere with local laws.
Originally, District leaders had planned to create a similar set of rules. Mayor Muriel E. Bowser (D) said flatly the day after her election — and the approval of Initiative 71 — that she would not allow it to become law until the city approved rules for taxing and selling the plant.
But Bowser’s stance changed in December, when congressional Republicans inserted a restriction in a budget bill blocking the District from doing so.
Boxed in by Congress, Bowser and D.C. Council Chairman Phil Mendelson (D) said they would rather err on the side of supporting city voters. With little ability to control what might come next, they declared the ballot measure “self-enacting.”
With Bowser’s blessing, Mendelson sent Initiative 71 to Capitol Hill to start a congressional review period imposed on all new city laws. Mendelson was essentially throwing down a gauntlet, challenging Congress either to take action to block Initiative 71 altogether or to let the city govern itself.
The review extends for 30 legislative days. Based on Congress’s current meeting schedule, the last day for federal lawmakers to act now stands at Feb. 26.
After that, the published law of the city will allow residents and visitors 21 and older to possess up to two ounces of marijuana — about a Ziploc bag’s worth. District residents will also be able to cultivate the plant in their homes — up to six seedlings each and up to three plants to maturity. Conservatives in Congress have warned that the initiative will not be valid. They say the budget language passed in December already suspends Initiative 71, and they have no plans to take further action before Feb. 26.
It may be left for the courts to decide. A lawsuit could come from a D.C. resident or from the Justice Department, which under President Obama has allowed legalization to move forward in four Western states.
Many unanswered questions
How the city will prepare to enforce the new law remains a work in progress.
D.C. Attorney General Karl A. Racine’s office has given the police department guidance for how to implement the law, according to two city officials who spoke on the condition of anonymity because it is not yet clear if the department will follow all of the recommendations.
The guidance calls for District police to not arrest or issue fines for pot possession or use it as a pretext to investigate other criminal behavior. But there are many areas that will probably not become clear until litigated, the officials said.
Bowser’s administration has sought to draw little attention to the coming deadline, in hopes that it will come and go, as one administration official said, “without the sky falling.”
Grosso said he met with Bowser on Friday and raised a host of concerns about what happens at the end of the month. “For one, I asked what happens when a restaurant or a club has a smoking section outdoor and people light up? Do you arrest them? . . . I didn’t get an answer to that question.”
Other questions: What happens when someone who lives in federal public housing in the District lights up? Under current federal law, residents can lose their housing for a single drug violation. And, has there been any coordination, he asked, with the District’s many federal law enforcement agencies? Marijuana possession will remain punishable by up to a year in jail if found on someone on the Mall, in Rock Creek Park or in almost any city traffic circle, since they are the provinces of the U.S. Park Police and others.
A senior Bowser administration official who spoke on the condition of anonymity because the enforcement protocol is still under review said the mayor probably will soon begin to make the case to D.C. residents that they should smoke or cultivate pot only at home. If they carry it in public, they should keep it in their pockets. Anything more, the official said, would risk a run-in with police.
Corey Barnet, head of District Growers, a cultivation center for medical marijuana dispensaries in the District, said it may be difficult for police to prove a marijuana sale. His biggest concern, he added, is the possibility of unsafe or chemically enhanced pot that could make consumers sick.
Adam Eidinger, who organized the petition drive to get Initiative 71 on the ballot, said the odds of dangerous marijuana are low. He is more concerned about police not clarifying aspects of enforcement, such as whether marijuana can be grown on balconies, or only inside residences.
He also is concerned about entrepreneurs going too far to profit off distribution. The safest way to enjoy the initiative, he said, is to grow marijuana yourself.
“It’s legal, you can go do this, enjoy it,” he said. “But if you buy it and get caught, you’re technically breaking the law. I hope they would make that a low priority, but the sharing of marijuana will be legal.”
Want pot? Join the club.
The public expo at a Capitol Hill hotel could offer a glimpse of just how ambiguous the rules are. With the District set to become the first major East Coast jurisdiction to legalize possession, marijuana companies believe it could become a hub for the flow of pot — once they figure how to shield buyers and business owners from possible charges related to buying or selling the plant.
One of the most likely scenarios, said Malik Burnett, D.C. policy manager for the Drug Policy Alliance, which advocates for liberalizing U.S. drug laws, is the proliferation of “cannabis clubs.” Under such arrangements, a District resident or visitor may pay a membership fee to an organization where marijuana is freely exchanged.
“If you look at Spain, this is how it works,” Burnett said. “Spain has these social clubs that are totally nonprofit entities. They are private, you pay to the social club a membership fee, and they cultivate, grow and allow you to consume marijuana for free as a member of the social club. There is a whole blueprint for this that is totally a real possibility for the District.”
Bowden, of ComfyTree, said several expo presenters plan to discuss how entrepreneurs in the District could operate subscription or cooperative-type businesses inspired by Colorado’s lesser-known “caregiver” medical marijuana law. That law allows caregivers to obtain marijuana for family members or patients.
“They can’t technically sell cannabis directly, but it does allow for donations to the organization,” Bowden said. “Most people think of the dispensary retail shops when they think of Colorado, but more often, they are not, they are home-based businesses,” she said. “They can make money — they just can’t make it on the direct sale.”
Businesses could also sell a different product, such as a dinner, and “give” away the pot, she said.
“You have a home-based operation, maybe you do a food thing or massages . . . say you sell cookies. They are very expensive cookies — $50-a-month membership . . . you work out the rest out on the back end,” Bowden said.
One entrepreneur who will attend the expo is a former federal contractor who now runs a concierge wellness program in the District.
He has filed for a business license in the District and has begun practicing in his kitchen how to infuse chocolates with cannabidiol oils — mostly hemp-related substances that do not produce psychoactive effects.
It’s a placeholder business that could transition to infusing chocolates and other foods with tetrahydrocannabinol, or THC, the active chemical in pot.
The business owner spoke on the condition of anonymity because he is unsure where the legal lines will fall. “Some of the things that I am involved with are borderline, they are gray areas,” he said. One of those was a test run recently with a four-course meal in which the olive oil, canola oil and coconut oil used to cook each dish were infused with THC.
“We don’t have the same cannabis culture that Colorado has. . . . It’s not going to be all people smoking joints,” he said. “We have a lot of people in this city who came here to work really hard. They are going to want a different experience. With the city’s restaurant scene, I think there is going to be a lot of opportunity in this space.”
Aaron Davis ~ The Washington Post ~ February 15, 2015