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Dea Warns Commissioners

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DA warns Oakland's marijuana grow law could land City Council in jail

By Paul T. Rosynsky

Oakland Tribune

Posted: 12/17/2010 05:51:41 PM PST

Updated: 12/17/2010 08:13:48 PM PST



OAKLAND -- Alameda County District Attorney Nancy O'Malley entered the fray over the city's new law regulating large-scale commercial marijuana grow operations this week, warning that the law is probably illegal and could land city officials in jail.

In a letter to Mayor-elect Jean Quan, which was also delivered to members of the City Council, O'Malley cautioned that the city's attempt to tax and regulate grow operations for medical marijuana would most likely be considered illegal under state law and result in prosecution by her office.

"The Alameda County District Attorney's office makes the point that enactment of this ordinance does not provide a defense "... to any criminal charge," O'Malley wrote. "In other words, notwithstanding pronouncements by city officials or the enactment of the ordinance, the prosecuting agency in Alameda County is not providing any assurances that activities authorized by the ordinance, but not authorized under state law or federal law, are permissible."

O'Malley's letter was sent to the city in response to the council's approval in July to license and regulate four large-scale commercial pot farms to produce medical marijuana for Oakland's dispensaries. The goal, council members said, was to move the illegal and often dangerous cultivation out of private garages, basements and attics and into the open, where it can be regulated.

It also follows an announcement by City Attorney John Russo last month


in which he warned the council that law enforcement officials in Washington, D.C., and locally "have expressed concerns with the path Oakland is taking, which is in violation of law."

Russo also refused to sign the commercial cultivation ordinance, even though his office helped craft the law.

Even before the council approved the new law in July, concerns were raised that allowing such large-scale operations violates the state's medical marijuana laws, which place specific limits on how much pot can be grown by patients and how that pot is distributed.

In her two-page letter to the council, O'Malley cites two cases that were decided by the California Court of Appeals and state Supreme Court that found that even storefront medical marijuana dispensaries were illegal because they could not be considered primary caregivers.

As a result, O'Malley wrote, those growing marijuana and city officials who helped put them in business by drafting the grow law could be held criminally liable.

"Persons should not rely solely upon pronouncements by city officials or enactment of the ordinance as proving any legal or equitable defense to criminal prosecution," O'Malley wrote. "Nor should persons rely on pronouncements of city officials or the ordinance as an accurate interpretation of the state laws regarding marijuana cultivation, possession, sale, etc., and/or the defenses available to those charges."

Councilmember Rebecca Kaplan, who with Councilmember Larry Reid authored the ordinance, was not available for comment Friday, but her spokesman said Kaplan was open to making changes to the city grow law when the council meets next week to discuss the legal concerns.

"She is open to making changes to strengthen the city's position on the issue," said Jason Overman, Kaplan's communications director. "She takes very seriously the legal dynamics that surround the city's ordinance."

Quan was unavailable for comment, and O'Malley refused to make a statement about her letter.

It remained unclear Friday why O'Malley decided to warn city officials about her concerns. O'Malley even admitted in her letter that her office "has a long-standing policy of declining to issue advisory opinions as to the legality of any particular conduct."

Although O'Malley, a cancer survivor, said she "certainly understands the benefits for those in need of medicinal use of marijuana in various forms," she cautioned the city that moving ahead of state law could land officials behind bars.

"It remains an open question whether public officers or public employees who aid and abet or conspire to violate state or federal laws in furtherance of a city ordinance are exempt from criminal liability," O'Malley wrote. "The District Attorney's Office will uphold and enforce the laws of this state. As is the policy in this office, alleged violations of the law will be reviewed on a case-by-case basis."



seems like there is a lot of backroom talks going on we know nothing about-leading to stiff opposition and refusal to do the will of the people!

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This is a coming clash in our state (Ann Arbor, so far). Prepare and decide which side you are on. I know where I stand.


Commercial growing operations do not make medical cannabis safer for anyone; they make it more profitable for a few. They also expose the patients who depend on them and the entirety of the medical marijuana movement to intense scrutiny and risk from DEA involvement, as you can see.


And what do we as patients and caregivers get for our support of such things? They use the enhanced profits to lobby for our elimination and to allow them exclusive rights to distribution. No thanks.

Dont forget the caregivers get a stiff lowballing for their hard work..

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Worse than that, this kind of system eliminates caregivers involvement, ultimately, by introducing expensive and unnecessary "health and safety" standards that make it too expensive for an independent caregiver to participate. The ability for a caregiver to recover expenses by selling overages will cease, causing many, many caregivers to reevaluate their participation in the program, because they will be unable to afford such an expensive "hobby."

Whenever i hear the health and safety talk i get nervous.. I think no matter what a caregiver did to make their product Healthy and safe would not quite cut the mustard compared to Cali and Coli's "AWESOMENESS"

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Guest finallyfree09

i think that we are all learning that dispensaries charge so much that one can barely afford to buy a days worth of medicine. every dispensary i have been to was the same way. now they are opening one outside of my small town.

BAN DISPENSARIES AND SUPPORT CLUBS AND THE PRIVATE CG/PATIENT SYSTEM ALREADY IN PLACE. and, at the very least.... if dispensaries are to be allowed, please make it illegal for people that have been convicted of running a meth lab to run a dispensary.

Edited by finallyfree09
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Cannabis is no different than any-other resource once a market has been established and profits greatly exceed overhead those with power, money, and connections will trample over themselves and on the bodies of dieing old women and babies to get their thirty pieces of silver.


Lansing in particular Sen.Rick Jones is selling us out to the highest bidder and using public safety as the lie to condone their actions.


If he truly felt the general public is in danger after someone uses an intoxicating substance than why not close bars and liquor stores, crooked pharmacies and pill clinics.


And where the hell is the out rage from Lansing over the illegal prescription pills that have flooded the state and killing kids or, the heroin right Oakland County?! You know about heroin its all over your county!!


Besides losing tax monies those institutions have paid off Lansing in the form of hundreds of thousands of dollars in campaign contributions. So all we have to do is offer Lansing money and they'll let us do what we want happens all the time with contributors.

Every government is run by liars and nothing they say should be believed.

- I. F. Stone


Hell of a lesson being taught to American children. No matter what you vote for, how good the law is. If the politicians don't like it the law won't matter just like your vote won't matter.


To Your Good Health



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Guest finallyfree09

Its funny u mentioned heroin and oakland co. I grew up down there. Back when ortonville used to be affectionately known as "Hooterville". Went down there bout 5 yrs ago and caught up with some OLD friends (haven't seen them in almost 15 yrs) and all I heard about was people dying from heroin. They kept askin me... "do u remember this guy and that guy, and those girls, and blah blah blah...". At least 5 people that I had grown up with were DEAD by age 25. Sad.

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Guest 1TokeOverLine

Heroine and meth don't get the attention they used to - the shock value has worn off, "marijuana" does.


I compare it to ignoring the homeless because my money is his cup don't fix the problem. Seeing their plight drives home the futility. I think the same thing happened with meth and heroin - the shock has worn off, treatment programs were placed, the sheeple would rather think the problem has been addressed and taken care of.



Edited by 1TokeOverLine
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hello all


bb i love ya bro but we need to find a better way to say some of this as im a patient and maybe might become a caregiver in time but for now i agree with you...


We must oppose any large scale grows. Let's just say that they implement the ordinance. They run the caregivers out of business.


personally i dont know of any business out here that has compassion... all i see are ones who are in business for profit... so if we want others to see us as we should be seen...then i dont think we should put the wording of care giving and business together as it shows some there is nothing about compassion in a business model... so with care giving being a business there is a profit being made or it would not be a business...


so when i grow more than i can have im left to do only a couple of things and the one i dont like but have done was put the extras in the fire pit and burn it... this last run i was luck to be able to have helped some who were out and didnt have the money to get the meds they needed so i was able to give the extras away... now where in a business model based on profit does care giving come to play as its in business to make a profit or your not in a business...


so this may be a moot point but think its worth looking at as we are still needing to get others to see us all in a different way... i hope im not wrong in my thinking here but just looked strange to me to make care giving into a business model... let me say sorry if i took this wrong but wording is how i seen this and just thinking it does not show the right idea i hope we are trying to change...


ps i know others who can grow all of what we need here in michigan and do it from the growers we have now... we just cannt grow how we all would like and feel safe and be within our law... with that being said why would locals want to allow anyone from out of state do something we could employ our own to do and make it for michigan...



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