“We want people to be able to use cannabis responsibly anywhere you can smoke a cigarette,” says Schiller.

Joint Custody: The Story of Marijuana Post-Legalization

D.C. wanted to legalize weed. A congressman wanted to restrict it. Their efforts birthed a booming underground delivery industry and hobbled the District’s medical marijuana program.

BY J.F. MEILS AUG 31, 2017 6 AM

A half-dozen towering pot plants sway in the breeze on Adam Eidinger’s terrace as he recounts the story of his 20th career arrest. Eidinger’s home recently caught fire—no one was hurt, including the plants—but it still smells of ash under fresh paint, an odor replaced with weed when Eidinger sparks a joint and passes it to Nikolas Schiller, his co-founder at DCMJ, which they call “a community group” but operates like a marijuana advocacy shop.

“Cannabis is out in the open in a way that’s changing the culture,” says Eidinger. He drafted Initiative 71, D.C.’s marijuana legalization ballot measure, and it passed with 65 percent of the vote in 2014. “It’s giving the out-of-town politicians a sense of what a city is like that has legalization and the sky is not falling.”

Eidinger’s 20th arrest happened in April. He was leading a giveaway of joints aimed at members of Congress and staffers on the corner of Constitution Avenue and 1st Street NE—District, not federal land—when Capitol Police cuffed and stuffed him. Initially told he was being arrested under the Controlled Substances Act, federal drug legislation rarely used in D.C., Eidinger says he was ultimately charged with possession under D.C. law. Months later, the U.S. Attorney dropped the charge after acknowledging that Eidinger didn’t, in fact, break the law he basically wrote.

The episode marked the latest chapter in what might be the most tangled marijuana legalization effort in the country—one that allows District residents to possess pot, grow plants, and “gift” up to an ounce of weed to anyone 21 or older, but not buy or sell it. The latter is thanks to a rider Maryland Rep. Andy Harris attached to a 2015 Appropriations bill that forbade the District from spending any money to carry out Initiative 71. In practice, that meant D.C. could not tax or regulate the marijuana its voters just legalized, spawning a large and booming underground market of pot delivery services in the nation’s capital, courtesy of Congress.

Given the District’s plodding, restrictive approach to medical marijuana, that might not be a bad thing. Licensed cultivators and purveyors of medical marijuana, none of whom operate East of the River, say D.C.’s seven-year-old program—and its 119 pages of regulations—is inefficient and over-managed. “We run a bona fide medical marijuana program” says Dr. LaQuandra S. Nesbitt, M.D., director of the District’s Department of Health. “This is not a program that is intended to be lax or for people who want to use marijuana recreationally.”

Meanwhile, District tokers access medical marijuana’s recreational cousin with ease.

Caught in the middle are D.C. police and lower-income communities, two groups whose relations were meant to improve with pot legalization. “We’re trying to define in a lot of cases what you can and can’t do,” says Lt. Andrew Struhar of MPD’s Narcotics and Special Investigations Division. Arrests for smoking marijuana in public are rising again after a steep drop following legalization, drawing the ire of just about everyone, including drug prevention workers who believe marijuana use is increasing among those under 21 precisely because of an increase in public smoking.

Two and half years into Initiative 71, the District is in a familiar position—at the legal and regulatory mercy of Congress. But within those confines, some believe there are unique opportunities, including the idea that the District’s completely unregulated weed market can offer some singular insights.

Unless and until Congress acts, it appears that D.C. will continue to be an accidental laboratory of legalization right under the nose of the people who have the power to change it all.

Hundreds of tiny pot leafs dot the map of D.C. on leafedin.org, creating a literal and figurative tapestry of how the so-called “gray” market for marijuana has transformed the District. John Khainson, a former product manager in financial technology, designed the app to anonymously connect buyers and sellers. The interface is not complicated, and frankly not very slick. Nor is it subtle. The non-weed items and services for “sale” on Leafedin—to go along with your “gift” of marijuana—include fresh juice, baseball hats, a tea service, and even a consultation about the best strain of pot for you.

For the uninitiated, sites like Leafedin, wheresweed.com, and Craigslist connect you with a dealer, or “vendor,” who then provides a menu via their interface, their website, or text message. Typically, this menu does not show what is actually for sale, but a list of cannabis offerings that will be your free gift with purchase. Among the available gifts are marijuana flowers (dried pot buds), edibles (candies, cookies, assorted confections made with cannabis) or what are known as concentrates, which cover a whole range of extracted marijuana products from tinctures that can be put under your tongue to oils and waxes that can be vaporized. Once you’ve made your selection, you then arrange a delivery time.

Khainson, who lives in California and launched Leafedin a little over a year ago, did it to make the buyer-seller transaction easier. “I saw D.C. as the amplification of exactly what a gray market is and all the problems facing marijuana players with legalization,” he says.

If one of those problems was scoring weed in the District, box checked. Khainson claims that Leafedin has between 5,000 and 7,500 user profiles, and enjoyed a 130 percent increase in pageviews during the first ten days of June compared to the first ten days of May. Khainson says he is purposefully vague about his statistics in order to “protect the privacy of the Leafedin community,” but his point is that his site is growing like the recreational pot business in D.C.: very fast.

The underground market is now big enough to attract bloggers who curate and review D.C.’s burgeoning weed scene. One of them, Joe Tierney, started the gentlemantoker.com to help Washingtonians navigate the crush of new products and local delivery services. It didn’t take him long to learn what people really wanted. “My event reviews get clicks, my product reviews get clicks,” he says. “But my delivery reviews get tons of clicks.”

Because it’s underground, D.C.’s recreational cannabis market is hard to quantify, but anecdotal evidence is pretty consistent. “Quite frankly most of our deliveries are in Northwest, Columbia Heights, some parts of Capitol Hill,” says a representative from a delivery service called Dadogooders who didn’t want to be identified for fear of legal repercussions. “Our demo falls between 25 to 50 years old, mostly professionals, tech savvy, Millennials, a lot of executives. The profile out there is crazy—doctors, attorneys, Congressmen—it spans the whole range. Typically, it would be a college-educated white guy.”

And business is brisk. “It’s wonderful, a truly, truly wonderful time,” says a manager at a delivery service called Canamelo, who also did not want to be identified because of legal worries. “I can’t always keep up with demand. We increase our bandwidth on a consistent basis. This [market] is a huge pie. Everyone can get a slice.”

Given the growing appetite reflected on sites like Leafedin, which spiked recently during the height of tourist season, it’s fair to wonder where all the pot is coming from. According to District law, residents can grow up to six plants each, but only three of them can be mature at any given time.

“The majority of it [marijuana] is not coming from here,” says Tierney. “You can’t farm in a small city. Where you can farm is California.”

MPD has no illusions about out-of-state weed flowing into the District. “It’s a tremendous amount,” says Struhar, who describes a recent MPD effort with the U.S. Postal Service where more than 100 pounds were seized in a single day. “If you look at us having to eradicate all of this,” he says, “your head would explode.”

In addition to the delivery services, there’s the “Green Light District,” or the 18th Street NW commercial corridor in Adams Morgan, home to a selection of head shops and a home grow equipment supplier. “There are a ton of head shops that have opened in the city and most are not distributing cannabis, but some are,” says Eidinger, who is a part-owner of one, Capitol Hemp, which he says does not offer marijuana in any form. A manager of one that does, who wishes to remain anonymous for fear of getting hassled by police, says he believes he is compliant with Initiative 71 in offering a free gram of marijuana with certain paraphernalia sales.

Another byproduct of the District’s newfound freedom are marijuana pop-ups, or gatherings at private residences promoted over social media where cannabis buyers and sellers come together. Sometimes there’s a cover charge that comes with “free” pot, but other times there are cash-for-pot transactions on the sly.

So is all this legal?

The simple answer is no, says MPD in a statement provided by Bowser spokesperson LaToya Foster: “The idea of buying juice or a piece of art and receiving marijuana as a ‘gift’ is not legal. Also paying a third party, i.e. party host/event planner, for entrance into a function and receiving marijuana is not legal. The delivery services are inherently illegal because they are being paid to deliver marijuana, which is an illegal distribution.”

And yet enforcement has been arguably light. “When there’s been a crackdown,” says the guy from Canamelo, “it’s been on people who’ve been too public. Anytime you’re standing still and trying to advertise, that’s when the heat comes. You gotta stay mobile.”

For the D.C. Council—who would be taxing and regulating recreational marijuana right now if not for the Harris rider—there is much teeth gnashing while waiting.

“You can’t have a drug sold without regulation,” says D.C. Council Chairman Phil Mendelson. “We regulate the sale of alcohol. We regulate the sale of tobacco. We can’t do anything with regard to marijuana. And so we have this ad hoc confusing situation where people are buying something like a flower vase for $50 or $75 as a way of pretending to get marijuana for free.”

And this is where the bashing of Maryland Congressman Andy Harris usually begins. His detractors—most everyone involved in the District’s legalization efforts—say his rider preventing D.C. from spending money is at best spiteful and at worst responsible for the rise of the District’s underground delivery market.

“Let’s be serious. D.C. made recreational marijuana legal,” says Harris. “To claim somehow that my rider made marijuana easier to get is blatantly ridiculous on the surface.”

As for the idea that he crafted the rider to somehow stick it to the District, Harris, who is a medical doctor and has recently sponsored a medical marijuana research bill in the House, says it’s not personal. “This has nothing to do with D.C. other than that’s where Congress has jurisdiction,” he says. “It [the rider] was to send a message that there are people who believe recreational marijuana is not good for D.C.”

Eidinger, who runs hot when the subject of Harris comes up, isn’t buying it. “Politicians who are like ‘I’m okay with medical but not legalization’ are actually prohibitionists,” he says. “That’s why Andy Harris has a medical marijuana research bill, so he can say he’s for medical marijuana. But it’s just to cover his butt. It’s a delay tactic.”

Asked if there are any circumstances under which he would consider pulling the rider, Harris says: “No, unless somehow the entire medical and drug abuse community reverses course and says recreational marijuana is good for this country. I don’t think that’s ever going to happen.”

What will happen, inevitably, is national marijuana legalization—unless it doesn’t. Meanwhile, the federal government has the power to crack down on any business that grows, sells, or distributes cannabis, even if it’s legal under state or District law. This federal cudgel hovers over every legalization effort in the country, but is especially ominous in the District because that’s where the federal government lives and breathes the increasingly weed-filled air.

“It [cannabis] is ubiquitously smoked by young people and increasingly by people well above them in age, so I don’t think you can keep a substance that widely used under the wraps of illegality for much longer,” says D.C. Del. Eleanor Holmes Norton, who doubts the Republicans who control Congress will elevate the issue.

Norton recently put in a draft amendment to remove the Harris rider anyway. She couldn’t say if her amendment would be made in order, or introduced, but “that’s all I can do,” she says.

What Norton has already done is ensured that the District’s 2014 vote for legalization survived Congressional approval in the first place. The explanation of how it happened is slow torture, but basically Norton found a flaw in Harris’ rider that had to do with the word “enact” versus “carry out,” and voila, Initiative 71 became law because it had already been certified in the District.

However, D.C. can do nothing further with legalization, including collect tax revenue from a marijuana market estimated at $130 million a year, according to a 2013 analysis by the D.C.’s Office of the Chief Financial Officer.

Looking forward, there are only so many procedural rabbits to be pulled from hats. The real problem on Capitol Hill, according to some, is age. “There’s a huge generation gap in Congress,” says Aaron Houston, a longtime marijuana lobbyist who works with DCMJ. “Imagine being the guy who has to tell Senator so-and-so what a bong is or what dabs are. You just don’t want to be that staffer who betrays that you have this knowledge about how to use drugs.”

And yet the Senate is where Houston and DCMJ will be focusing their fire going forward. “The Senate has seemed to be more sensible on this than the House has been in the past,” says Houston, who cryptically noted that the appropriations process on the Senate side offers more “wiggle room.”

Eidinger and Schiller intend to keep the heat on by stoking public sentiment. Now that they’ve achieved a form of legalization in the District, they’ve got eyes on a bigger prize: nationwide legalization. “We want people to be able to use cannabis responsibly anywhere you can smoke a cigarette,” says Schiller.

One of their many plans is to find a way to use the District’s legalization law to challenge federal marijuana prohibition. “In a way, D.C. is the only federally approved marijuana legalization law in the country,” explains Eidinger. “We’re a federal enclave so Home Rule gives us a right to write ballot initiatives. Congress, through the Home Rule Act, has the right to reject legislation from D.C.”

Because Congress didn’t reject the District’s legalization law when it came through in 2014, Eidinger believes there’s an opening to use that to somehow challenge federal drug laws. “I’m ready to go to the Supreme Court,” he says.

While the chess match on Capitol Hill plays out, there are issues in the District related to legalization that are starting to fester. One is the inequity that legalization created in terms of consumption. Meaning: If you’re not allowed to consume marijuana in your home because, say, you live in federally funded housing or your landlord frowns upon it, you must go outdoors, where you risk arrest. And those public smoking arrests are on the rise again in D.C., nearly tripling between 2015 and 2016 to more than 400 people, according to MPD figures obtained by The Washington Post.

“There’s a disproportionately large number of African-Americans who feel aggrieved about how this thing [marijuana law] has been enforced over time,” says Ward 7 Councilmember Vince Gray.

But it was the D.C. Council, which didn’t include Gray at the time, that voted to strengthen the so-called “private club ban” in 2015, removing a potential option for those who could not consume cannabis in their homes—a situation more prevalent in poorer communities.

“My sense is that [private club] issue is overstated,” says Mendelson. “I didn’t hear of that being an issue in poor communities until we legalized pot.”

But the issue keeps bubbling to the surface regardless. “People show up to our [DCMJ] meetings from Wards 7 and 8,” says Eidinger. “And the number one thing we’re hearing is: ‘I got nowhere to smoke and I’m feeling blackmailed by my landlord who tells me if I complain about anything … I’m going to turn around and get evicted.’”

Because advocates framed the need for Initiative 71 partially in social justice terms, its failure in aspects like the public smoking issue has led some in the drug prevention community to question this gap.

“There was no push by the proponents, including the Council, including the Mayor, to reduce the sentences of African-American males for selling the same amount that is now legal to give away,” says Ambrose Lane, Jr., who chairs the Health Alliance Network and sits on the D.C. Commission for Health Equity. “So I don’t buy the social justice argument.”

Now that Initiative 71 is law—but also restricted—Mayor Bowser could address criminal justice issues the law did not. She could also, as some suggest, simply move forward on taxing and regulating recreational cannabis in defiance of Congress, risking prosecution under something called the Antideficiency Act, which prevents the spending of unauthorized federal funds.

It was, after all, Mayor Muriel Bowser who stared down Congress in 2015 when Initiative 71 went into effect, following through with implementing the law even after Rep. Jason Chaffetz, then-chairman of the House Oversight Committee, threatened to have her arrested.

For this, Eidinger calls Bowser the “cannabis warrior queen of Washington,” then adds: “She really did something right [in 2015] and if she forgets that, she won’t get re-elected.”

Bowser says she is committed to continuing the fight to have the Harris rider removed, though she did not explain how beyond lobbying on the Hill. Her spokesperson adds: “Anti-D.C. riders do not help us improve our neighborhoods or strengthen our schools. Instead, they are usually designed to unreasonably influence the lives and choices of Washingtonians and overturn the will of D.C. Voters.”

As the only people who can legally sell marijuana in D.C., you’d think the District’s medical dispensary owners and licensed growers would be a happier lot. Many are not, and their animus is reserved for pretty much one entity: D.C.’s Department of Health.

“Unfortunately, we have a Department of Health that has largely stood in the way of the development of the medical cannabis market in D.C.,” says Corey Barnette, co-owner of Metropolitan Wellness Center in Capitol Hill and and owner of District Growers. “The harmful side effects of their tactics has led to a competitive illicit market that is booming without regulatory control, doesn’t pay taxes to help fund the development of the city, and largely operates in the shadows, which at times can be unsafe.”

It’s not surprising when an industry has a beef with its regulators, but the litany of complaints coming from the District’s medical cannabis providers is long, detailed, and remarkably consistent. It’s also not unusual to see an industry publicly going after its regulators when it’s not doing well, which appears to be the case with D.C.’s medical marijuana providers.

Patient registrations are down 30 percent at Metropolitan Wellness Center from a high water mark of 1,400 patients. Herbal Alternatives near Dupont Circle has only 551 of the 5,372 total patients in the medical program as of August 1, according DOH’s Medical Marijuana and Integrative Therapy Division. However, some dispensaries like Takoma Wellness Center and National Holistic Healing Center, also in Dupont Circle, report slow, steady membership gains.

“We’re cash-flow positive, but we have a huge debt hole that we’re digging ourselves out of,” says Matt Lawson-Baker of Alternative Solutions, a licensed cultivator. “Last year it was month-to-month, just hoping to survive.”

So while some dispensaries and growers are doing better than others, it’s clear that none of them are as elated as their unregulated counterparts, a reason why they might be pushing so hard for regulatory relief.

“My charge is to operate a medical marijuana program,” says Nesbitt, the director of D.C.’s DOH. “I understand a lot of people would like purchase recreational marijuana, but that is an issue I am powerless to advance. You cannot go to a doctor for the express purposes of just getting marijuana.”

Nesbitt cites her accomplishments with the program, among them the rule change from two to four ounces a month per patient and the establishment of the Medical Marijuana and Integrative Therapy Division, a five-person unit within D.C.’s Department of Health dedicated to regulating the medical marijuana industry. As of July, a new program manager, Arian Gibson, was running MMIT. He most recently worked for the D.C. DOH as a food technologist and enforcement officer. One of Gibson’s first actions upon taking the job was to cease sending the District’s dispensaries a monthly letter informing them how many patients each had gained or lost in the prior month.

Councilmember Gray, who chairs the D.C. Council’s Committee on Health, says he’s planning an oversight hearing on medical marijuana this fall. “I will want to hear from Dr. Nesbitt and her staff,” says Gray. “Given that this is still a relatively new program, I’m not sure I would react negatively to her efforts to run it as rigorously as she possibly can.”

Gray is also interested in hearing from the medical marijuana providers. “If they feel they’ve been over-regulated, tell me why,” he says. “There’s got to be a middle ground in there somewhere, and I’m not sure we’ve hit it.”

Chief among the complaints Gray will hear is one dispensary owners have had since they first began opening in 2013: It’s too hard to get a medical cannabis card in the District (which this reporter has done). Despite a five-person staff at MMIT, it typically takes four-to-six weeks or more to get a card. The application process is on paper, can require up to two doctor recommendations, and costs patients $100 unless they can prove a certain low income level.

“The number of individuals who have complained about not receiving cards has decreased and we have received some positive feedback from dispensary owners,” says Nesbitt, who adds that the expeditors used by many dispensaries for the application process slow it down because they often file incomplete forms.

Three dispensary owners with whom City Paper spoke strongly disagreed. “We basically have to white glove the whole [registration] process,” says Michael Cuthriell, president and part-owner of Metropolitan Wellness Center. “I speak for every dispensary in saying we are all doing a lot, if not everything, to get enrollments.”

Beyond registrations, complaints include the lack of an integrated electronic system linking the dispensaries and DOH, the slow pace of implementing reciprocity with out-of-state medical marijuana programs, and the general hesitancy of District physicians to prescribe marijuana.

“Physicians in Washington, D.C. are not recommending cannabis treatment, period,” says Chanda Macias, owner of National Holistic Healing Center in Dupont, who has a doctorate in cell biology and did cancer research. “It’s because they don’t know about drug-drug interactions or they’re uncomfortable recommending it while working in a federally funded hospital.”

The common thread to the consternation appears to be business, as in there’s not enough of it. Operators in the medical cannabis program cannot compete with the underground market and feel constrained by onerous rules and the challenges of working within a legal, regulated system.

As in the case of a rocky marriage, better communication might help. “I think they [DOH] have everything in the works,” says Lawson-Baker. “It’s just how it’s gonna be done and when it’s gonna be done and no one knows. We’re meant to have quarterly meetings with DOH, but we’re lucky if we get two a year.”

Managing expectations alone won’t solve the District’s marijuana issues, which always seem to return to the Harris rider and the underground market it appears to insulate. To get around the problem Eidinger offers a, well, Eidinger-like perspective. “Why do we even need the medical program?” he asks. “It’s bullshit in some ways that businesses have to go through a rigmarole to get a hold of cannabis. I think home growers should be able to sell at farmers markets and see it where it goes.”

Source: Washington City Paper