City Attorney Bets Proposed Pot Ban Is Legal

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So the San Leandro ordinance was temporarily withdrawn to give Williams and her legal team time to study its implications.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