City Councilman Darryl Moore speaks out against a federal lawsuit that could shut down BPG. Sean Luse, BPG's COO, is on the left. Photo: Frances Dinkelspiel
City Councilman Darryl Moore speaks out against a federal lawsuit that could shut down BPG. Sean Luse, BPG’s COO, is on the left. Photo: Frances Dinkelspiel
City Councilman Darryl Moore speaks out against a federal lawsuit that could shut down BPG. Sean Luse, BPG’s COO, is on the left. Photo: Frances Dinkelspiel

Update 9:00 p.m.: US Attorney Melinda Haag told the Oakland Tribune  in a prepared statement that “we continue to take a measured approach and have only pursued asset forfeiture actions with respect to marijuana retail sales operations very near schools, parks or playgrounds, at the request of local law enforcement, or in one case, because of the sheer size of its distribution operations.”

Original story:

City and state officials and medical cannabis advocates vowed Wednesday to fight back against a federal lawsuit that seems aimed at shutting down Berkeley’s largest medical cannabis dispensary.

U.S. Attorney Melinda Haag filed a forfeiture lawsuit May 2 against Nahia Droubi, the landlord for Berkeley Patients’ Group, threatening to seize her property at 2366 San Pablo Avenue. The suit contends “the operation of a marijuana store is in violation of federal law.” The suit also states that Haag’s office informed Droubi that the site was within 1,000 feet of two preschools: Color Me Children on Bancroft Avenue and the Nia House Learning Center on 9th Street. (State law says it is a violation for a cannabis business to be within 600 feet of a K-12 institution.)

Berkeley Patients Group was forced to vacate its previous location at 2747 San Pablo Avenue in May 2012 after Haag threatened the landlord of that property. The U.S. Attorney said that BPG was too close to a number of schools at that location as well. BPG opened its doors at its current site in December.

Sean Luse, the chief operating officer for BPG, said that the organization sought to comply with all state and local laws in moving to its new location. It did not think that preschools were counted like other types of schools since they are not mentioned in state law.

“There’s no place in Berkeley that’s not 1,000 feet from a school,” said Luse. “We didn’t view it as a risk. Preschools and day care centers aren’t schools. We felt confident it was a great location. It was thoroughly vetted by the city. We complied with all the laws. We did everything asked of us by city officials.”

At a press conference on the steps of Old City Hall, Berkeley city council members, representatives from U.S. Congressman Barbara Lee’s office, Assemblywoman Nancy Skinner’s office, State Senator Loni Hancock’s office, all said that Berkeley Patients Groups is complying with state and local laws and that the federal government should not be trying to shut it down. They called for Haag to pursue truly violent criminals – and added that an unintended consequence of her pursuit would be to shut down locally legal cannabis dispensaries and make more room for gangs and drug cartels.

Berkeley Patients Group “has done an amazing and tremendous job and has served as a national role model to medical dispensaries not only here in Berkeley but to the nation,” said City Councilman Darryl Moore. BPG is in his district. “It is a dispensary that is serving our very needy population that needs medical marijuana as a medicine to survive in their daily lives. They have been an outstanding community citizen…. To see the atrocities, to see the things our Justice Department is doing to try to close the Berkeley Patients Group, is just outlandish and needs to be stopped.”

Moore has introduced a resolution for the May 21st City Council meeting opposing the U.S. Attorney’s forfeiture action.

Berkeley Patients Group opened its doors at 2366 San Pablo Avenue in December. Photo: Frances Dinkelspiel
Berkeley Patients Group opened its doors at 2366 San Pablo Avenue in December. Photo: Frances Dinkelspiel

The lawsuit is only the latest skirmish between the federal government and state and local officials. Federal law has classified marijuana as a Class A drug, illegal in every circumstance. Numerous states have passed laws permitting medical cannabis for medicinal purposes. Washington and Colorado residents voted in 2012 to allow the recreational use of marijuana.

When President Obama first took office, he said the U.S. Justice Department would not go after cannabis operations that were in compliance with state law. But a group of California U.S. Attorneys, including Haag, has forced the closure of hundreds of cannabis operations in the last two years, usually by threatening to seize landlords’  properties if the cannabis businesses did not move. Federal officials frequently said the stores were within 600 feet of a park or a school, which violated state law. Some medical cannabis advocates estimate that more than 400 dispensaries and collectives have closed, seriously compromising patients’ ability to safely buy medicine.

The California Supreme Court ruled last week that cities have the right to permit – or ban – medical operations.

“Being the US Attorney does not give you the right to change state law or city law,” City Councilman Kriss Worthington said Wednesday. … “Not only is her behavior criminal in harassing all these law-abiding companies, but her policy would say we punish the people who follow the law, who pay their taxes, who go through the permit process, and we turn cannabis distribution back to gangs and this secret underground culture. Which would you prefer if you were the US Attorney and you were thinking about crime? Would you prefer gangs and drug trafficking or would you prefer a system which is paying taxes and following government regulations, coming to the city to get a permit? Thus is so absurd and it’s threatening to criminalize a basic patient service that is urgently needed here.”

Berkeley Patients Group was not named in the lawsuit filed in federal court on Tuesday, but plans to challenge the action.

“Berkeley Patients Group did not ask for or seek this challenge, but they will not run away,” said Henry Wykowski, one of BPG’s attorneys. “They will stand up and fight back. We are not going to close down and run away. We are going to fight this in open court.”

One of BPG’s patients, a fragile, extremely thin woman who asked not to be identified, told the crowd that she relies on her cannabis medicine to help her with her cirrhosis and other ailments. “I’m appalled. This whole action is nothing more than murderous. I am really sickened by what the federal government is trying to do. I am praying this doesn’t happen.”

Update: This article has been corrected to say state law prohibits a medical marijuana business to be within 600 feet of a K-12 institution. The article originally said state law prohibited a cannabis collective to be within 1000 feet.

Berkeley Patients Group finds new home on San Pablo [09.13.12]
Berkeley Patients Group earned $15m in 2009
Sadness surrounds closing of Berkeley Patients Group [05.01.12]
Berkeley’s largest cannabis dispensary to close May 1 
Berkeley cannabis lawsuit reveals bitter infighting [7.18.11]
Berkeley Patients Group owes $6.4 million in back taxes [2.24.11]

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Frances Dinkelspiel, Berkeleyside and CItyside co-founder, is a journalist and author. Her first book, Towers of Gold: How One Jewish Immigrant Named Isaias Hellman Created California, published in November...