US Attorney Carmen Ortiz is weighing whether to use federal law to shut down medical marijuana dispensaries, including those proposed for Boston and Brookline, if they open within 1,000 feet of schools, playgrounds, or public housing.
Under federal law, the 15 dispensaries and additional cultivation sites provisionally approved in Massachusetts could face prosecution and asset forfeiture if they open too close to a school — even if the locations would be allowed under local and state regulations. A Globe review found that at least six of the dispensaries would be within 1,000 feet of schools or playgrounds.
A critic of the Brookline dispensary has appealed to the top federal prosecutor in Massachusetts to intervene, saying it is vital to separate dispensaries from children.
“It raises important questions, and we’re going to have to take them into consideration,” Ortiz’s spokeswoman, Christina DiIorio-Sterling, said. “We are looking into it. We need to assess it and have some internal discussions, and we will have a decision soon.”
The scrutiny by federal prosecutors is the latest wrinkle in a protracted and controversial state licensing process for dispensaries. It comes as the state’s first medical marijuana dispensaries face inspections and local zoning approvals.
As 23 states and the District of Columbia moved to legalize medical marijuana, tensions flared between federal and state officials. Marijuana remains illegal under federal law, which calls for increased penalties for selling drugs within 1,000 feet of all schools, including colleges; playgrounds; or public housing.
Last year, the Justice Department advised federal prosecutors that enforcement should generally be left to local authorities in states where marijuana has been legalized in some form. But the Justice Department cautioned that preventing marijuana from getting into the hands of children remains a federal priority.
Robert Mikos, a professor of law at Vanderbilt University, said most states have taken the Justice Department advisory to heart and incorporated the 1,000-foot setback into their licensing process.
“In most states, it’s a nonissue because part of the licensing agreement is that you don’t operate near a school,” Mikos said. “Most states have figured one way to quell the concerns is to make sure that these dispensaries don’t open near schools.”
The Massachusetts Department of Public Health set significantly less stringent guidelines. After voters in 2012 legalized medical use of marijuana, state health regulators crafted rules that prevented dispensaries from opening within 500 feet of schools, day-care centers, or facilities where children frequently congregate.
But cities and towns can adopt even more lenient rules.
A spokesman for the Department of Public Health declined to comment Thursday.
In a Nov. 7 letter to Ortiz, Elizabeth Childs, a Brookline psychiatrist and former state mental health commissioner, complained that New England Treatment Access’s proposed dispensary at 160 Washington St., in Brookline, sits within 1,000 feet of two schools, three playgrounds, and a public housing development.
“The state regulations are really problematic,” Childs said. “This is a really important step to make sure you separate vulnerable populations from a risky product.”
She urged Ortiz to take action, noting that other prosecutors across the country have sent letters to dispensaries and landlords warning they faced federal action if they located within 1,000 feet of schools. Last year, Washington state revised zoning rules for dispensaries selling marijuana for recreational use after the US attorney in Seattle warned of possible federal prosecution.
Arnon Vered, executive director of New England Treatment Access, sent a letter to Brookline’s zoning bylaw committee in August 2013 saying the company was aware of the US law and would not locate within 1,000 feet of a school.
“Our recommendation is that the buffer zone should be 1,000 feet,” Vered wrote then. “The federal law enforcement community has made it very clear that it will exercise its discretion to enforce federal law regarding cultivation, possession, and sale of marijuana — even medical marijuana — within 1,000 feet of schools.”
On Thursday, Terence Burke, a spokesman for New England Treatment Access, said the company shifted its position after Deputy Attorney General James Cole issued a memo on Aug. 29, 2013, advising federal prosecutors that enforcement would generally be left to local authorities where marijuana had been legalized. But that memo said preventing drug distribution to minors remained a priority of the federal government.
“This is a very new industry and over time we became more confident that the 500-foot buffer zone would be in compliance with the new federal guidelines outlined in the second Cole memo and moved ahead with our current location,” Burke said.
Patriot Care Corp., which won conditional approval for a marijuana dispensary at 21 Milk St. in Boston, and two others in Greenfield and Lowell, appears to have dispensaries within 1,000 feet of schools in Boston and Greenfield, according to the Globe review. Dennis Kunian, a spokesman for Patriot Care, said that while the company has not had contact with federal authorities, “we would cooperate fully if we did.”