Marijuana plants for sale at Berkeley Patients Group.

By John C. Osborn

As Berkeley prepares to form a new medical marijuana commission to draw up rules governing the growth of cannabis, it must decide whether recent threats of legal retribution by the Alameda County District Attorney will nix plans for large-scale cultivation facilities.

In December, District Attorney Nancy O’Malley sent a letter to Oakland city officials alerting them that their plans to allow large-scale growing facilities would violate state and federal laws. The warning prompted Oakland to suspend plans to issue permits for the marijuana factories until Feb. 1. Oakland is also considering modifications to its law.

Now Berkeley, too, will proceed with caution, Mayor Tom Bates said on Saturday. Although the city did not directly receive a letter from O’Malley, the one sent to Oakland left a “cold chill” for elected officials, said Bates. O’Malley’s letter suggested that that public officials could be held personally and criminally liable if they move forward to open any of the six 30,000 square foot grow facilities authorized by the November passage of Measure T.

“It put a cold stake in the hearts of elected officials,” Bates said. “I guess the downside is we go to jail.”

The question that has been raised by O’Malley’s letter, along with other warnings by federal officials, is whether it is legal for dispensaries or collectives to cultivate large amounts of medical marijuana for its patients with the blessing of the city. There are also concerns about whether a city can directly tax a grow facility.

Proposition 215, the landmark 1996 law that allowed for medical marijuana, and a 2004 law that clarified it, places limits on how much pot can be grown by patients and how that pot is distributed. set guidelines on who may grow marijuana and how the medical cannabis may be consumed, but the law is still somewhat ambiguous. While the law states that collectives and dispensaries can grow medical cannabis for the use of their members, recent court rulings have determined that dispensaries  are not  “primary caretakers” for patients and consequently cannot cultivate marijuana, according to O’Malley’s letter. This and the question of taxing a service that is meant to be not-for-profit under the law adds to the legal conundrum.

While Berkeley voters authorized the idea of large growing facilities, the new medical marijuana commission needs to draw up regulations governing them. The city council must then approve the new regulations.

Before Berkeley takes that step, Bates wants to know where the city stands legally, he said. He is awaiting an opinion from both state and federal justice officials to make sure that it will be “allowable and permissible” for the city to give out cultivation licenses.

“The question is at what point are federal officials going to intervene,” Bates said, “because they are the people that put people on notice.”

If uncertainty about the law continues, Berkeley will not seek to set up the large scale growing facilities, said Bates.

Brad Senesac, spokesperson for the Berkeley Patient’s Group, said on Friday that the warnings fficials have not changed the company’s mind about applying for one of the cultivation permits in Berkeley should the city go through with them.

He said that as long as the cultivation permits are attached to a dispensary, and medical marijuana is grown for a not-for-profit purpose, everything would be legit.

“You can’t grow for profit,” Senesac said, “but you can for (the dispensary’s) members.”

While the legal status of the cultivation facilities is in limbo, the city is also posed to reform its Medical Marijuana Commission as allowed under Measure T.

Previously, the nine-member commission was made up of collective and dispensary representatives who were not appointed by the city council. Under the new law, each member of the council gets to appoint somebody, but the commission must have at least one dispensary and collective representative.

The commission would have two major tasks to address once its formed: set up criteria about how to decide on the fourth dispensary now allowed by law; and determine the criteria for the cultivation licenses.

As of Friday, only two council members — Susan Wengraf (District 6) and Gordon Wozniak (District 8) — had appointed members to the commission, said Mary Kay Clunies-Ross, public information officer for Berkeley.

Bates said he is still looking for an “intelligent and objective” candidate. If a quorum of five members is not reached by Jan. 13–the deadline for an agenda–then the commission’s first meeting will have to postponed until February.

The city has already received a number of inquires about the open fourth dispensary slot, Bates said: Forty Acres, a local collective; Harborside Health Center, an Oakland-based dispensary; and by a group of people with connections to Humboldt County who want to start up an organic dispensary. Whoever gains the coveted spot, they will have to meet a list of criteria that is yet to be established by the commission.

“We’re not going to hurt for people interested (in the fourth dispensary slot),” Bates said, “but we’re not just going to give someone a hunting license.”

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