In 2011, just as the state of Colorado and the city of Oakland, Calif., were launching medical marijuana regulatory programs, then-Deputy Attorney General James M. Cole issued a memo that throttled the budding medical cannabis industry.
Cole’s June 29, 2011, memo was a follow-up to a 2009 memo by Deputy Attorney General David Ogden that stated individuals following state-legal marijuana laws should not be a priority for federal prosecutors, which seemingly gave cover for states to legalize medical cannabis. By 2011, 15 states legalized medical use and several more had pending legislation.
Cole noted in his memo that over the previous 12 months “several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers.”
He said the Ogden Memo never meant to protect that type of commercial venture. “Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.”
He clarified that U.S. attorneys could prosecute cannabis cases “consistent with the resource constraints and the discretion you may exercise in your district.”
That summer, depending on the local district U.S. attorney’s feelings about legal cannabis, dispensaries started being raided by the DEA, particularly in California and Montana. The businesses targeted were often within a 1,000-foot radius of a school or had guns on their property, violations of federal law.
Many dispensary owners were subsequently arrested and faced up to 20 years in federal prison as state laws were not allowed for their legal defense in federal court. Cole’s memo also slowed legalization and government licensing programs, and banking options dwindled for cannabis businesses.
Two years later, Cole issued a new memo that backed off prosecution of state-legal cannabis activities except under specific federal priorities, including preventing distribution to children.
Then in 2014, Congress put in more legal protections. A budgetary rider known as the Rohrabacher-Farr Amendment prevented the Department of Justice from using its funds to prosecute individuals or businesses that complied with medical cannabis laws in states, the District of Columbia and U.S. territories. The rider has been attached to federal budget legislation every year since.
Today, more than 40 states, D.C, and four U.S. territories have legalized medical cannabis use in some fashion, and many have legalized adult use.
D.C. attorney threatens Green Theory
Under the Trump Administration, federal threats to dispensaries have emerged again. On April 25, Edward R. Martin, Jr., interim U.S. Attorney for the District of Columbia, wrote a letter to Green Theory warning that the dispensary on MacArthur Boulevard, N.W., was too close to schools.
“I am concerned that you are in violation of federal laws, which are intended to protect children. To that end, the need to address this issue is serious,” Martin wrote.
He said enhanced federal penalties may apply when a dispensary is operating within 1,000 feet of a school. Under 21 United States Code § 860(a), the criminal penalty can be up to 20 years in prison.
He also warned that property owners and managers may also be implicated under controlled substances laws.
“Specifically, Title 21, United States Code, Section 856(1) provides that it is unlawful to: ‘knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, [a] place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.’”
Under this code section, the criminal penalty is also up to 20 years in prison and a $500,000 fine, or a $2 million fine “for a person other than an individual.” The civil penalty is either a $250,000 fine or two times gross receipts “derived from each violation.”
Martin gave Green Theory until Monday, May 12, to respond to the following questions:
- “Are you aware of the federal laws related to marijuana dispensaries and their locations near schools?
- Have you addressed these issues with federal law enforcement officials?
- Can you produce documentation regarding your compliance with federal law?”
Neighbors oppose dispensary
The D.C. Alcoholic Beverage and Cannabis Administration issued a license to Sequential LLC, doing business as Green Theory, on March 27, 2024.
Martin wrote the letter in response to parents and other residents complaining to him about the dispensary. An organization known as 1,000 Feet, as well as D.C. Advisory Neighborhood Commission 2C opposed the store because of its proximity to several schools.
While federal law requires a 1,000-foot boundary around schools, D.C. Official Code sets the boundary at 300 feet, except in commercial areas.
In a March 14, 2024, letter to ANC 3D, the ABCA said the Rohrabacher-Farr Amendment, “in practice,” meant that there is a prohibition against prosecuting people and businesses in compliance with the district’s program.
“As a result, ABCA is not aware of any federal or District law that prohibits the issuance of medical cannabis business licenses, in violation of any federal controlled substance law, including 21 U.S.C. § 860.”
But the letter also warns, “Members of the medical cannabis industry should be aware that changes in existing federal law or policy by Congress, including not continuing the current congressional rider, may subject licensees to business closure or prosecution at any time.”
ANC 3D actually endorsed Green Theory’s license, according to a commissioner. But two commissioners from ANC 2C told CRB Monitor News in emails that they are protesting the business.
“Yes, we are protesting this business as it operates within 300 feet of two schools (abutting one and directly across the street from another) and down the street from a childcare facility,” said Commissioner Thomas Lee.
Commissioner Jim Swart added, “This ANC has a bit of history in standing tall when it comes to protecting children and their schools & other children’s facilities.”
Lee, Swart and another 2C commissioner said they did not reach out to the U.S. Attorney’s Office.
“That said, his office is one block away from this marijuana dispensary and the dispensary opened up for business last week. And they have a sandwich board at the street intersection,” Lee said on April 30.
Green Theory announced its opening in April 2024. Representatives of Green Theory/Sequential declined to comment.
Future of federal prosecution of cannabis dispensaries
A spokesperson for the U.S. Attorney’s Office also did not respond to emails with questions, particularly asking how prosecution would be consistent with the Rohrabacher-Farr Amendment and whether the property owner was sent a similar letter.
Martin’s leadership, however, is being challenged. Trump appointed him as interim U.S. Attorney for D.C. in March.
A staunch Trump supporter, Martin reportedly defended Jan. 6 rioters, and befriended one said to be a Nazi supporter. More recently, he alarmed members of Congress because of appearances on Russian TV, according to Politico. His confirmation would need to be approved this month. However, as of May 8, a hearing has not been scheduled.
Meanwhile, reclassifying marijuana to Schedule III of the Controlled Substances Act is stalled. Trump’s nominee to lead the DEA, Terrance Cole, is opposed to legalized marijuana. During his confirmation hearing on April 30, he would not commit to continuing with the proposed rule submitted by the Biden Administration. Cole told the Senate Committee on the Judiciary that he didn’t know where the rescheduling process was, but it would “be one of my first priorities” to find out, reported Marijuana Moment.
But as the Trump Administration begins to solidify after its tumultuous first 100 days, it remains to be seen whether other U.S. attorneys will follow Martin’s lead, and whether the Rohrabacher-Farr Amendment will be included in future budget bills.
According to 1000 Feet, at least 11 major metropolitan cities — including San Francisco, New York and Chicago — allow dispensaries within 1,000 feet of a school.
One D.C. neighborhood commissioner, who declined to be identified, said the best thing for legal operators in D.C. is to deal with the U.S. Attorney’s Office quietly because the same legal argument to justify the 1,000-foot rule could be used for all other federal marijuana laws, threatening every legal cannabis business and user in the country.
