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City Attorney Bets Proposed Pot Ban Is Legal

Voting on ordinance to ban on marijuana facilities in San Leandro for one year was delayed after an adverse court ruling. But the city's legal adviser says that decision will be reversed.

 

City staff is once again urging the council to adopt a one-year ban on marijuana facilities when it meets Monday night, arguing that the l will likely be itself overturned.

San Leandro has a moratorium on pot facilities that expires on September 30.

City Attorney Jayne Williams has advised council members that San Leandro must have an ordinance in place by then, to either ban or regulate pot facilties. Otherwise, it could be sued by a clinic applicant.

But staffers and have not offered any suggestion of how marijuana dispensaries and/or growing sites might be regulated.

At their July 2 meeting council members were poised to adopt a staff-backed ordinance that would have kept clinics and grow sites out of San Leandro. That ordinance would have expired in a year unless it was extended.

However, on the day the council was to have voted, a California state appeals court said cities could not impose complete bans on pot operations because that would pre-empt the intent of the state law that legalized medical marijuana.

So the San Leandro ordinance was temporarily withdrawn to give Williams and her legal team time to study its implications.

Their analysis, contained in the city council study packet for next week, notes that there are conflicting court decision on what powers cities have to manage marijuana operations within their borders.

They think the recent decision that struck down city bans will be reversed.

"City attorneys throughout the State think that the California Supreme Court will grant review of the (recent) decision (striking down city bans), or de-publish the opinion," they argued.

Thus the staff want the council to pass the one-year ban Monday night on what is called a first reading, and then take the matter up again for a second reading when it reconvenes on September 4 after its August recess.

This would give the city's legal staff several more weeks to read the tea leaves and see whether city bans will or won't be struck down.

That lines the city up for a gamble.

The current moratorium will expire at the end of September.

If the city does nothing, Williams has said it could be sued by a potential clinic operator seeking a path to get a permit.

But if court actions uphold the current ruling that prohibits citiy bans of pot facilities, the council could come back from vacation to find that its proposed ordinance doesn't pass legal muster.

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Chris Crow July 13, 2012 at 10:31 PM
I think they'll go with the F.A.C.T. - Firearms, Alcohol, Cannabis, Tobacco
anthony July 13, 2012 at 11:05 PM
Dept. of Consumer Affairs/ Board of Pharmacy... Pharmacist/Budmaster, and it comes complete with an established rulebook.
Bong Sativa July 15, 2012 at 03:59 PM
You don't need dispensaries to find marijuana in San Leandro ! Go to any bar,order a drink & in a few minutes you can follow the sweet smell of marijuana out front or around back ! Marijuana is so prevalent here that a stranger visiting here would be able to find an illegal source within an hour ! Those who think the ban on medical marijuana dispensaries has had any effect on it's availability have no idea how readily available it is already ! Some think that those who smoke marijuana are a small criminal minority of their neighbors,yet 55% of Alameda County voters who voted for legalization in 2010 would tend to tell a far different story ! The City should repent & relent before their constituents craft their own measure for the voters approval & take the issue out of their hands completely. A ballot measure once passed by the voters can't be disputed or modified by the City Council & could only be changed through another ballot measure. I think a measure which regulates dispensaries without adding a penny to the city coffers,makes marijuana the cities lowest law enforcement priority & instructs the city & police not to cooperate with federal authorities is a splendid idea ! And if our city leaders keep insisting on obstructing state law a similar measure may soon become law here irregardless of their ill-conceived opposition !
James H. September 12, 2012 at 12:20 AM
Federal law trump state law, and federal law deem possession and distribution of marijuana a felony. The reason that state is turning a blind eye to marijuana is due to the tax dollar it generates from dealing narcotics. Dealing drugs because the state is broke.
Marga Lacabe September 12, 2012 at 01:38 AM
James, it's not as easy as that. Not all federal laws preempt state laws, just as not all state laws preempt local ordinances. The CA SC will probably decide the issue of federal preemption when they hear the medical marijuana cases that are going before them.

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