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ALBANY – With 5 million pounds of tomatoes grown last year by a sprawling 12-acre greenhouse operation in Niagara County, Gary Smith and his partners can arguably be called the tomato kings of Western New York.

If Smith has his way, though, marijuana plants could be his next bumper crop.

Smith’s company, H2Gro Greenhouses in Lewiston, is believed to be one of the first in the state with an actual site in mind to grow marijuana plants in the event New York, as appears now likely, will start letting patients with certain medical conditions use the drug for relief from an assortment of ailments.

“I know it’s controversial, but it’s becoming much less controversial,” Smith said, checking off details of poll results showing public support for medical use of marijuana. “Nearly half the states now have some form of medical marijuana. I see it is not if, but when.”

But whether prospective legal pot-growers such as Smith become a reality in New York depends on a debate likely to be decided during this legislative session in Albany.

After years of flatly refusing to consider the idea, Gov. Andrew M. Cuomo this year suddenly switched positions and said he favors its use in limited medical circumstances. But he is basing his support on the Controlled Substances Therapeutic Research Act. The governor says this law, passed in 1980 but never implemented, would permit his administration to let a limited number of hospitals – he has proposed up to 20 – dispense marijuana to patients with cancer, glaucoma and other unnamed diseases as approved by the state health commissioner.

That 1980 law, however, would shut out the possibility of Smith, or other private companies with existing operations in other states, such as Colorado, from growing marijuana to supply to hospitals.

That law, enacted when Cuomo, now 56, was only a year out of college, says hospitals could get the drug through a federal program that allows obtaining marijuana from a single farm in Mississippi or through a British pharmaceutical company. The only other way the drug could be obtained is through marijuana confiscated by law enforcement.

But even the State Police, according to a June 1980 memo sent to then-Gov. Hugh L. Carey, warned against permitting seized marijuana from being distributed since it “cannot guard against the contamination of such drugs” because of toxics, such as pesticides, that could be on the marijuana.

While Cuomo flipped on the issue, lawmakers say his plan is void of details, faces uncertain delays, will serve only a fraction of patients who could benefit from the drug and fails to recognize shortages of medical marijuana under the federal program. They say they plan an all-out push to still pass legislation to begin a program, heavily modeled on one in Colorado, in which private companies, such as the one Smith envisions, would grow and distribute the drug under what advocates insist are tight security protocols.

State Health Commissioner Nirav R. Shah told lawmakers Monday during a budget hearing that his agency envisions getting the medical marijuana program under way within a year and that plans are to use the only law – the 1980 version – as the guide.

However, lawmakers criticized Shah for promoting a program they say will benefit few New Yorkers and will have few hospitals participating because they will risk loss of federal funding if they distribute marijuana.

“I think your department is going down the wrong path and, in many respects, you’re wasting your time,” said State Sen. Diane J. Savino, D-Staten Island, who has proposed a more comprehensive medical marijuana program than the one Cuomo wants.

Twenty states and the District of Columbia have authorized some level of marijuana use for medicinal purposes, and a bill authorizing a distribution system in New York has sailed through the Assembly for several years but has been halted in the Senate.

Cuomo, until this past month, had insisted that the dangers outweighed the potential benefits of legalizing medical marijuana. The issue has been pushed by a host of health care groups and patients who say marijuana can help with everything from the effects of chemotherapy to certain conditions for which only expensive and addictive pain killers are prescribed treatments.

Several out-of-state companies have floated the idea of setting up marijuana farms, but Smith’s operation already has the infrastructure in place to quickly add a marijuana component to his greenhouse operation.

H2Gro has a half-dozen partners, with most of them, like Smith, tied to Modern Corp., the giant waste-hauling and landfill owner in Niagara County. The waste-hauling company last year retained Richardson Management, of Buffalo, for $2,500 per month to represent it in Albany; in lobbying reports filed with the state, the lobbyist reported working on a measure “for passage of medical marijuana.”

Eight years ago, H2Gro began growing tomatoes using an unusual system: It sends methane generated from within a landfill it owns across the street from the massive greenhouse facility to an adjacent cogeneration station. The methane is used to spin large engines that produce electricity, which is sold back to the grid.

The heat from the engines is captured and heats water that is then sent underground to heat the greenhouse that features ceilings 17 feet high.

The company is picking hydroponically grown tomatoes eight months a year and sells to Walmart, Tops Markets and retailers and other outlets from Philadelphia to New York City.

Smith said that his company has been closely following medical marijuana developments in other states, is interested in the idea of growing marijuana, and that his greenhouse operation can be expanded to accommodate the new crop. But, he said, it all depends on the model New York selects for a medical marijuana program.

“We have a lot of extra capacity,” he said of the company’s facility. “We’ve looked all over the country. There have been some successes and some dismal failures. We’re curious how New York approaches it.”

Smith said he foresees medical marijuana grown at his greenhouse operation, which employs 33 people, as beneficial to both patients and the local economy, as well as to the state’s coffers.

“I think it’s huge if you look at the money generated in some other states, not only from economic development from building facilities, hiring people and the distribution system,” he said. “Colorado probably couldn’t live without the taxes from marijuana.”

Smith said the pitch he could make to state officials is that he is already operating a secure facility with a year-round growth schedule producing disease-free plants with a computerized feeding and watering system in a clean-energy greenhouse.

In Albany, proponents of the medical marijuana legislation have been using Smith’s potential site as ammunition to try to sell a plan to lawmakers that goes beyond the more limited, and still vague, approach promoted by Cuomo.

For now, H2Gro’s focus remains tomatoes, and lots of them. The greenhouse has 75,000 plants now growing in pots with a shredded coconut medium serving instead of soil. By mid-March, the first crop will be picked, and by July, 40,000 pounds a day will be harvested.

While Smith and his partners are interested in medical marijuana as a crop, he said they have to wait on Albany to figure out how it might develop.

“It’s still early in the process,” he said, “and we can’t make the decisions yet.”

email: tprecious@buffnews.com