Potential federal crackdown could threaten Berkeley ‘cannabusinesses’

Skyler Reid/File
Harborside Health Center is one of the largest medical marijuana dispensaries in Oakland.

The federal government is now positioned to raise the heat on the issue of medical marijuana in California, possibly threatening Berkeley’s voter-approved efforts to develop cannabis-related business.

This potentially increased scrutiny is due to a strongly worded letter from the U.S. Department of Justice to U.S. attorneys, which may result in a federal crackdown on the state’s medical marijuana industry.

The letter references an increase in the scope of commercial use, sale, cultivation and distribution of marijuana for “purported medical purposes,” in particular pointing to several jurisdictions that have, over the last 12 months, considered or enacted legislation which would allow for multiple large-scale cultivation centers.

“Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law,” the letter reads.

Such language in the memo raises the question of whether local officials involved in the passage of cannabis measures will be susceptible to federal prosecution.

“That is the implication,” said Kris Hermes, spokesperson for Americans for Safe Access, a group that advocates for the legal use of medical marijuana. “Whether or not the federal government is going to act on its threats is a whole different story. It’s one thing to say that local officials are under threat of criminal prosecution — it’s another thing to arrest somebody and actually prosecute them.”

Berkeley City Councilmember Jesse Arreguin said the memo is “a real step back” and creates a sense of fear among city officials that may result in reduced efforts for the implementation of local medical marijuana policies.

“Does that mean that I personally am not going to advocate for policies that promote the distribution of this medicine to patients? No,” Arreguin said. “I personally believe very strongly in medical marijuana being available to patients who need it, and I think we should stand by that policy.”

In November 2010, Berkeley voters approved the cannabis-related ballot Measures S and T. Measure S places a 2.5 percent tax on for-profit “cannabusinesses” and a $25 per square foot tax up to 3,000 square feet, with each following square foot taxed at $10, on nonprofits.

Measure T enables the city to permit six new 30,000-square-foot cultivation sites to open in the M district of West Berkeley, as well as a fourth dispensary, while also calling for the reconstitution of the city’s medical marijuana commission.

In 2008, Berkeley voters also approved Measure JJ, which allows for a patient or primary caregiver to possess and grow unlimited amounts of marijuana, provided that only 10 or fewer of the plants are visible from other properties. Measure JJ also lifted limits for cannabis collectives, provided they possess only a “reasonable quantity.”

In Oakland, City Attorney John Russo wrote to federal law enforcement in January to research the legality of steps his city was taking to allow for large-scale marijuana cultivation sites. In response, Melinda Haag, U.S. attorney for the Northern District of California, warned that such actions would not be condoned by the federal government.

Although Berkeley’s Medical Cannabis Commission — which will set standards governing the changes outlined in Measure T — has been in the process of reconstitution since November, the commission has yet to meet as council members have not yet appointed all nine members. As of June 28, the commission roster had one vacancy left. According to Stewart Jones, the commission member appointed by Arreguin, the commission plans to meet in July.

“A lot of these people have forgotten that when they allowed the collectives to start up and operating, they had to operate as nonprofits — now it’s all about the money,” said James Benno, chief executive director of Nor-Cal NORML, a chapter of the National Organization for the Reform of Marijuana Laws — a nonprofit organization dedicated to reforming California’s marijuana laws. “I think that’s why the federal government is responding like this.”