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Prevalence of Marijuana “Gifting” Attracting Police Raids; DC Attorney General Weighs in

Accompanying images can be viewed starting on page 1 of the April 2018 issue pdf

By Larry Ray*

Was Marrakech, the restaurant and bar at 2131 P Street, NW, raided by the police on Saturday, March 10, 2018? The police say no, but neighbors say yes.

Nearby store manager ‘S,’ who asked not to be named, asserted that he saw a large police presence — including eight or more police cars — ambulance and fire truck personnel storm into and around Marrakech at about 2:30 that afternoon.

And at the Fireplace, a few doors west at 22nd Street  bar patron ‘L,’ who also didn’t want his name to be used, said that over 150 persons at Marrakech were not allowed to leave until 5 p.m. when finally released. He also told of seeing police carrying out trays of what appeared to be finger food snacks.

The marijuana club that usually gets together at Marrakech on Saturdays and Sunday afternoons did not meet on Sunday, the 11th.

Contrary to what witnesses outside told The InTowner, one of the MPD officers on the scene, when asked by a customer who had come out from Soho Tea & Coffee to see what was going on, the stated that this was not a raid but instead they were responding to a call that two people were fighting. When they arrived, he said they discovered that the club was “gifting” small amounts of marijuana while selling for large amounts of money items such as tee shirts, brownies, etc. Nearby neighbors and business folks doubt the “fighting” as the reason or excuse. Business Manager ‘P’ (also wishing to remain anonymous) said that the usual weekend police surveillance, presumably in response to residents’ complaints about noise and loitering, ceased when the marijuana club’s activities ceased — most likely not coincidental.

This mention by the officer of “gifting” as an action that required police enforcement needs to be understood in the context of the District’s marijuana law and regulations enacted after much delay following the DC voters having overwhelmingly – by 65% — approved Initiative 71 in 2014.

While the implementing law left it illegal to buy or sell marijuana, it does allow persons to have up to two ounces of marijuana, to cultivate up to six plants, to consume privately, and — this is the key to “gifting” –- persons 21 and older can legally give others 21 and older up to one ounce at a time.

Some say this set the stage for a free for all. The law’s vagueness begat the process of “gifting” so one buys a tee-shirt worth for $45 and then they get a one-ounce “gift” of marijuana.

Former bar owner ‘T’ (also wanting anonymity) likened this “gifting” as reminiscent of the 1980s when bars tried to get around the law prohibiting the sale of alcoholic beverages after hours by selling hot dogs for $5 and give a gift of a beer.

Keith Stroup, Legal Counsel for the National Organization for the Reform of Marijuana Laws (NORML) asserts, “The City Council appears ready to fully legalize and regulate marijuana sales in the District, but Congress has blocked that for now. So the only legal source of marijuana within the District is to cultivate your own marijuana, and most smokers do not want to spend the time or effort to do that. So obviously there is a thriving ‘gray market’ that provides marijuana to those who smoke, including the ruse of ‘gifting.”

In response to our questions about “gifting,” Robert Marus, the communications director of for the Office of the DC Attorney General, responded, “We advised MPD early on in implementation of Initiative 71 that the practice of ‘gifting’ less than two ounces of marijuana in connection with any sort of commercial exchange or ‘donation’ is illegal. Of course, we have advised MPD, other District leaders and agencies, and the public on other aspects of Initiative 71 implementation. We published [a] FAQs document for the public in 2015 as the law went into effect.”

We also sought comment from the Metropolitan Police Department and received the following statement from MPD’s Lt. Andrew Struhar of the Narcotics and Special Investigations Division:

“An individual may not receive compensation for providing marijuana or marijuana products. However they want to word it, if they are receiving something of value for marijuana it is illegal.

“If conducting an operation a subject is served with an illegal amount of marijuana or illegal products we can seize those items. Typically customers are allowed to leave.”

To some extent, this odd situation can be attributed to the fear that the federal government will interfere with the DC marijuana process. Each DC law is subject to the 60-day (for criminal matters) Congressional review process before taking effect. In the marijuana case, a rider was attached prohibiting DC government from spending any funds on the implementation of this bill as well as prohibiting any taxing scheme.

DC residents have reported on hundreds of these “gifting events” involving approximately 25 vendors selling items such as coffee cups, baseballs with “a gift” plus marijuana paraphernalia. These events are often advertised online or through social media. Sometimes they charge a cover. Sometimes one must RSVP to get the address.

Blogger Joe Tierney, who goes by the moniker “GentlemanToker,” reports that these police raids began back on December 23, 2017.

City officials have sought to clarify the legalities and illegalities. Dated July 21, 2016, the DC Department of Health (DOH) sent a letter to all business owners containing the following advisory:

“DC amended its marijuana laws to permit a person who is 21 years of age or older to possess two ounces or less of marijuana. Although the law allows home usage, it prohibits the smoking or consumption of marijuana on public space or anywhere to which the public is invited. It is illegal to permit usage of marijuana in any form in clubs, restaurants, bars, patios, cafes, rooftops or any other type of food establishment in DC.”

The letter concludes by listing the penalties that DOH can impose, ranging from a $1,000 notice of infraction to referral to the Attorney General. The letter signed by DOH Director LaQuandra S. Nesbitt, MD, also describes the penalties that can be imposed for improper use by MPD, by the Alcoholic Beverage Regulation Administration (ABRA), and by the consumer and regulatory affairs department (DCRA).

This letter may be instructive as to the approach of DC government to this issue; however, it is not about helping businesses but instead devoted to enforcement by ABRA, DOH, DCRA and MPD.

Tom Lalley, Director of DOH’s Office of Communications, responded that they have not been involved in any of the “raids” described above, “Our role on marijuana is mostly limited to the medical marijuana program which we regulate.”

Public Affairs Specialist Max Bluestein at ABRA responded vaguely about its involvement with these marijuana police interventions by stating, “ABRA investigators have assisted MPD on several of MPD’s investigations.” He also suggested visiting the records search page on ABRA’s website.

Whether Marrakech was a raid or not, MPD officers did raid the XO Lounge in the 1400 block of L Street, NW early in the year, on Saturday, January 20th. In that instance, the police assert that there were neighborhood complaints. They seized 17 pounds of marijuana, 10 pounds of marijuana edibles and two quarts of THC-infused oils.

Another raid was carried out a month later, on the 14th, at Vita Restaurant and Lounge/Penthouse Nine in the 1300 block of 9th Street, NW. ABRA has reported that at the request of the owner, their liquor license was cancelled. ABRA Order 2018-057.

Also, this year the police raided a Southeast DC residence after 10 vendors had set up their booths. There, the police confiscated approximately $22,000 in cash, 34 pounds of edibles as well as eight pounds of marijuana and 43 plants. Eight people were charged with possession and distribution.

In February, police raided Mason Inn, a sports bar on Wisconsin Avenue in Glover Park resulting in nine arrests for possession or intent to distribute.

DC Police are working with ABRA and DCRA to get a handle on this “gifting” situation that has come out of the shadows. According to the District’s U.S. Attorney’s office, marijuana arrests have jumped from 276 in 2015 to 587 in 2017.

When asked about these statistics, MPD’s Lt. Struhar provided the following comments:

“There [are] a couple of things to point out regarding the statistics provided by the US Attorney’s Office. In 2015 MPD revamped how we address narcotics and created a new street level narcotics unit. This unit conducts daily street level narcotic operations focused on street level traffickers. Following the legalization of marijuana I think we have seen an increase in the amount of marijuana in the District and therefore more subjects selling marijuana illegally. The Narcotics units most often respond to citizen complaints regarding illegal activity. This includes complaints from businesses and from the city regulatory agencies. When we receive these complaints we investigate and address appropriately. The number of citizen and business complaints regarding marijuana have also increased following legalization.”

DC resident and a proponent of recreational marijuana ‘L’ (also asking not to be identified) responded to Struhar’s comments: “DC Police seem to obsess about marijuana despite the evolving laws and public support. If one wants immediate assistance on a 911 call, mention marijuana and one will get a quick response. 30% of DC homicides are unsolved. Should DC police not prioritize?”

Conclusion

It is clear that marijuana evokes great emotions. These must be tempered by logic. It is important to note that marijuana has not always been regulated or criminalized. It was not until the mid-1930s that most states enacted such laws. The first national marijuana law was passed in 1937. There is much speculation as to why and what group may have been targeted by classifying marijuana as “a poison.” For more on the legal history of cannabis in the U.S., a highly informative article is available on Wikipedia.

DC Residents are also locating online delivery services or growing their own. One resource is Joe Tierney’s “GentlemanToker” blog.

DC Attorney General Karl Racine’s comment during an August 21, 2015 CSPAN interview is a relevant today as it was nearly three years ago: “Congress should get out of the way and allow DC to regulate marijuana as Colorado does. We could use the taxes. We should move into the world of the 21st Century.”

As noted above, Congress has prohibited DC government from spending any money on marijuana regulations, yet MPD, DOH, and ABRA are spending on enforcement. The InTowner sought an explanation from the DC Attorney General’s office and Communications Director Marus responded as follows:

“As we have advised District officials from the beginning, our view is that the enforcement of Initiative 71 itself does not violate the congressional rider, which Congress passed after Initiative 71 was certified. What the rider does  prohibit the District from doing is expending any funds to take further actions to legalize marijuana (such as creating a regulatory regime to effectuate commercial sales of marijuana). The rider prohibits the District from using those funds ‘to enact or carry out any law, rule, or regulation to legalize or otherwise reduce penalties’ associated with marijuana. District employees and agencies enforcing current laws do not violate the plain terms of the rider, because such efforts do not ‘legalize or otherwise reduce the penalties’ associated with marijuana.”

The AG’s office has on its website an excellent document explaining Initiative 71.

[Editor’s note: Our reporter did attempt to obtain comments from Chairman Mendelson and Councilmembers Evans (Ward1), Nadeu (Ward 2), Cheh (Ward 3), Todd (Ward 4). When contacting at-large member White’s office, rather than being connected with the council member, his chief of staff, Mtokufa Ngwenya, responded by stating, “Councilmember White is not the correct person for these questions.”]

*Larry Ray, a former Dupont Circle and Columbia Heights ANC commissioner, is a Senior Adjunct Professor at The George Washington University School of Law, and also serves on the Mayor’s LBGTQ Advisory Board. Back when Marion Barry was mayor, he was a member of an MPD body that served as a civilian complaint board arbitrating citizen complaints about police actions. Before coming to DC in 1980, he served as an assistant prosecutor in Columbus, Ohio.

Copyright © 2018 InTowner Publishing Corp. & Larry Ray. All rights reserved.