Marijuana Production in Oakland: Who's in Charge Here?
In 1996, California became the first state in the nation to legalize marijuana use for medical purposes. The medical marijuana industry germinated during the Clinton Administration and grew during President George Bush's tenure, despite the Bush Administration's opposition. When Obama took office, he voiced public support for medical marijuana and assured that the Department of Justice would not prosecute patients or dispensaries in states where medical marijuana was legal. Economies are responsive to political and legal change, and the relaxation in the threat of prosecution led the medical marijuana industry to flower.
In July 2010, Oakland City Council passed a measure to grant licenses to four industrial-scale pot growers with the provision of hefty ($200,000+) licensing fees and a sales tax beginning at 1.8% and increasing to as much as 12%. The measure passed with the allure of a potential to raise $38 million for the city, annually. The Council also saw regulated, industrial-scale growing as a way of reducing small-scale production and the robberies and personal safety issues it sometimes attracts.
In the months after the measure passed, the City Council considered the rules for regulating the first large-scale marijuana warehouses in the country. A major issue was to whom to award the four coveted permits, and criteria were created to reward entrepreneurs for best business model, security plan and, of course, being pesticide-free. In November, voters approved a measure that imposed a 5% business tax on all marijuana growers and dispensaries. The City Council planned to award the four permits by December 20, 2010.
Then came a major buzzkill—the Obama Administration issued a blunt message that the Department of Justice would prosecute large-scale growers and distributors, and potentially penalize Oakland for getting a cut of the profits. Another, lesser problem was that the permit process failed to heed state law that was supposed to restrict medical marijuana growing to patient-caregiver collectives. The City Council went back to redraft the permitting process and bring it into compliance with state law by tying each farm to an individual marijuana dispensary.
For a moment it appeared that a new protocol had been worked out and that the City Council might award five permits. Councilwoman Desley Brooks had come up with a plan allowing five dispensaries to operate their own industrial-size marijuana farms of up to 50,000 square feet (the Brooks Plan).
Just as the City Council was getting fired up, the Obama DOJ local, US Attorney Melinda Haag blew the City Council's high by issuing a warning that Oakland's cultivation ordinance as originally drafted would be illegal could result in federal and state prosecution. In a letter dated February 1, 2011, Haag wrote:
"The department is concerned about the Oakland ordinance's creation of a licensing scheme that permits large-scale industrial marijuana cultivation and manufacturing as it authorizes conduct contrary to federal law. . . . Accordingly, the department is carefully considering civil and criminal legal remedies regarding those who seek to set up industrial marijuana growing warehouses in Oakland pursuant to licenses issued by the City of Oakland."
Haag said federal authorities would enforce a crackdown on illegal manufacturing and distribution of marijuana, "even if such activities are permitted under state law" as they violate federal anti-drug laws. Operators of marijuana farms but also landlords, property owners, financiers and even the city's council members could face prosecution. Haag made sure to point out that the DOJ won't be focusing its limited resources on prosecuting patients, but distinguished that unlawful manufacturing and distribution was another story.
Alameda County District Attorney Nancy O'Malley issued a statement agreeing that Brooks Plan violated state law because it defined dispensaries as primary caregivers, which read too broadly the state law provision allowing primary caregivers to grow medical marijuana. In fact, district attorneys offices throughout the state have basically disregarded this provision of the law has basically since medical marijuana was legalized in 1996, hence the proliferation of garage-grow rooms and backwoods plantations.
Within the week, City Attorney John Russo withdrew his legal advice and told the City Council to hire a separate, non-governmental attorney. Russo's withdrawal doesn't mean that the City Council has to flush its plan, rather, it's more an illustration of how fractured his relationship with City Council is becoming. Just a week before, newly-elected mayor Jean Quan had expressed her desire to have her long-time lawyer friend Dan Siegel act as an unpaid legal adviser for the city, and the two had sparred over the legality of that. Furthermore, U.S. Attorney Haag issued her letter in response to City Attorney Russo's request for guidance, but Mayor Jean Quan says the Council never asked Russo to seek advice.
The fate of Oakland's large-scale medical marijuana production is uncertain. The City Council's Public Safety Committee will discuss Brooks' plan and Russo proposed amendments at their meeting on February 8. The full council will discuss the issue again at their meeting on February 15. The nation is watching--whatever happens in Oakland could have repercussions not only in California but also in other states that have legalized medical marijuana, like Arizona.
About the Author
San Mateo DUI Lawyer, Thomas Greenberg, is a native of California and a graduate of the University of California at Berkeley. He was formerly a highly respected deputy public defender and is now an experienced San Mateo criminal defense attorney who has provided effective legal services to literally thousands of clients