Pubdate: Fri, 24 Dec 2010
Source: Los Angeles Times (CA)
Page: AA3
Copyright: 2010 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Author: Lee Romney, Reporting from Oakland

OAKLAND PUTS PLAN FOR POT FARMS ON HOLD

Council Suspends Its Proposal for Four Large Operations After D.A.'S 
Warning on Liability.

California's most cannabis-friendly city has temporarily suspended a 
plan to permit and tax four large marijuana-growing facilities 
because of ongoing legal concerns.

The Oakland City Council voted 7 to 1 this week to send the measure 
back to legal staff for reworking after the city received a letter 
from the Alameda County district attorney. The letter suggested not 
only that the city's plan may violate the law, but also that elected 
officials could be legally liable.

"It remains an open question whether public officers or public 
employees who aid and abet or conspire to violate state or federal 
laws in furtherance of a city ordinance, are exempt from criminal 
liability," Dist. Atty. Nancy O'Malley wrote in a letter earlier this 
month to Oakland's mayor-elect, Jean Quan.

Federal law prohibits any use of pot, though the Obama administration 
has indicated it will largely allow states to enforce their own 
medical marijuana measures. California's pot laws call for a closed 
loop between cultivators and patients, but federal officials met with 
Oakland City Atty. John Russo this fall to warn that the large-scale 
pot farms were probably out of those bounds.

Russo also provided his own memo to the council before approving its 
plan advising that it may run afoul of state law. The failure of 
Proposition 19, the marijuana legalization measure on last month's 
state ballot, has also muddied the waters.

"If Prop. 19 had passed, the legality of this would have been a lot 
clearer," said Dale Gieringer, longtime head of California NORML, 
which backs legalization. "There was a lot of enthusiasm: 'Let's get 
Oakland ahead of the curve on this because if Prop. 19 passes we are 
right there ready to go.' "

Under the Oakland law, operators would pay an annual fee of $211,000 
to help fund a city enforcement staff. That cost effectively ensured 
massive-scale operations likely to provide enough marijuana to 
sustain the entire Bay Area medicinal industry, Gieringer said. 
Oakland alone has $28 million in sales a year. One prospective 
applicant proposed a 10,000-square-foot kitchen and two football 
fields' worth of grow space that would produce about 58 pounds of 
marijuana every day, many times the amount now sold in Oakland.

Under state law, Gieringer said, collective or cooperative growing 
organizations providing marijuana to members are legal, but these 
growers would be supplying multiple dispensaries. A Berkeley 
ordinance passed by 82% of voters last month, in contrast, authorizes 
and taxes cultivators on a much smaller scale so the link to users 
could be maintained.

O'Malley focused in her letter on the narrow legal definition of 
"primary caregivers," who she notes are allowed to cultivate for 
patients under California law if they have "consistently assumed 
responsibility for the housing, health or safety of that person." But 
Gieringer said growers providing marijuana to a larger number of 
individuals do not tend to rely on that defense, turning instead to 
the provisions on collective cultivation.

O'Malley, who stressed that she was not making a determination on the 
measure's legality, was pointed in her warning.

"Notwithstanding pronouncements by city officials or the enactment of 
the ordinance, the prosecuting agency in Alameda County is not 
providing any assurances that activities authorized by the ordinance, 
but not authorized under state or federal law, are permissible," she wrote.

Oakland has led the state in efforts to regulate and tax cannabis 
operations in the medical marijuana era. Unlike Los Angeles and San 
Diego counties' district attorneys, who take a narrow view of the 
law, both Russo and O'Malley have been supportive. O'Malley, a cancer 
survivor, said in her letter that her office has always "taken a very 
reasonable approach to enforcement of the marijuana laws" in light of 
the state laws governing medicinal cannabis.

But the plan to endorse four gigantic grow operations had sparked 
broad controversy by freezing out hundreds of small-scale growers who 
have been providing gourmet bud to city dispensaries. Many lobbied 
against the measure.

Councilwoman Rebecca Kaplan, the measure's main proponent, said in a 
statement that she was optimistic that a workable compromise could be 
reached. The council will discuss proposed amendments to the law on 
Feb. 1. The council could have shelved the ordinance permanently but 
instead voted on a motion by Kaplan and another councilwoman to amend it.

"We're poised to come back early next year with an amended system of 
responsible regulation," Kaplan said.
- ---
MAP posted-by: Richard Lake