By Doug Oakley
Bay Area News Group East Bay
It may be a very long time -- or maybe not at all -- for Berkeley's voter-approved medical marijuana farms to start growing the green.
That's according to city officials and people in the industry who saw a letter from the Alameda County District Attorney warning Oakland officials they face prosecution for a similar plan.
After receiving the Dec. 8 letter from District Attorney Nancy O'Malley, Oakland suspended its plan to allow and tax four medical marijuana farms of unlimited size.
And to further dampen the spirits of potential Berkeley pot growers, those in the industry say there is no suitable space to grow pot in the city in the area designated in the plan approved by voters.
Berkeley voters, with 64 percent saying yes, approved six, 30,000-square-foot medical pot farms in the city's manufacturing district. A separate measure to tax the proceeds won approval with 82 percent of the vote.
The City Council still needs to write a law with specific rules making Berkeley's plan happen. But now it seems like a long shot.
"It will never happen unless they change state and federal law," said William Panzer, an Oakland attorney who represents medical marijuana dispensaries and patients. "It's illegal under state law and the feds are not going to let it happen. If you're a City Council member and you get a letter from the U.S. attorney's office telling you you're facing a 10-year minimum sentence, you're going to think twice.
O'Malley's letter said state law only allows a "primary caregiver," who also is responsible for the housing, health or safety of the patients, to supply medical marijuana to them.
The implication of the letter, said Panzer, is that those who grow pot also would be responsible for the housing and safety of those members of the dispensary and "if they did that, they would go out of business." Berkeley Mayor Tom Bates said O'Malley's letter has caused the "whole picture to change" and "the implications of her letter put a chilling effect" on Berkeley's plan. But he is optimistic that by proceeding slowly, Berkeley might still be able to make it work.
"We believe that growing has to be done exclusively for the dispensary, and it cannot be engaged in a larger activity, and even then we're not sure the U.S. Attorney General will allow it to continue," Bates said.
In supporting the plan before the election, Bates said the city wanted to put a limit on any future actions the City Council might make to allow unlimited growing in the city.
Bates said once the city drafts its ordinance for the voter approved plan that shows the pot farms bring weed only to dispensaries, he would like to get an assurance from O'Malley that the plan will pass her scrutiny.
"Then we would like to get approval from the state attorney general and ultimately the feds," Bates said.
Teresa Drenick, O'Malley's spokeswoman, said the Alameda County District Attorney's office is reviewing Berkeley's plan but "we have not, nor will we provide legal opinion or guidance regarding local ordinances." Bates said Berkeley's plan is different from Oakland's because it's on a smaller scale -- six, 30,000 square-foot-farms in Berkeley as opposed to four farms of unlimited size that were proposed in Oakland.
"Oakland was thinking about growing huge amounts and that was overkill," Bates said.
He said rather than ruining the scheme for Berkeley, Oakland has shown the world what will not be allowed by law enforcement and that's a good lesson for Berkeley.
Berkeley City Attorney Zach Cowan said the city wants to do what's within state law, and that is always changing as new cases go before the courts.
"Our rule No. 1 is in trying to keep in compliance with state law," Cowan said. "And the state medical marijuana law has a lot of unanswered questions. So we're trying to take it very slowly and carefully and if things change, we will keep track and make sure its consistent with state law."
Cowan said Berkeley's new medical marijuana commission, created by the voter initiative, will have a chance to weigh in on the law that creates the pot farms as will his office before it goes to the City Council. Only one of the city's nine medical marijuana commission members has been appointed by City Council members so far.
Brad Senesac, spokesman for Berkeley Patients Group which has 10,000 members, said his organization would love to be one of the city-sanctioned pot growers, but the voter approved measure restricts the farms to the city's manufacturing zone where there are no available buildings to use.
"There's one building out there, the Flint Ink building, and it's a complete and utter wreck," Senesac said. "You'd have to tear it down and then clean up all the ink underground before you could start and that's not going to happen." As for the legal hazards of growing, Senesac agreed with Bates that state law should be interpreted to allow dispensaries to grow exclusively for their patients.
"As a collective we are allowed to grow for our members," Senesac said. "Legally, you only will be allowed to grow if you have a relationship with a dispensary, and that's what I think the feds are going to tell the city."