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So the San Leandro ordinance was temporarily withdrawn to give Williams and her legal team time to study its implications.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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Marga Lacabe July 12, 2012 at 06:58 PM
This is a very good question. To this I would ad some other questions: - Why is the city trying to restrict entertainment options in town? They've been battling the Bal for years, they've change the zoning code to forbid entertainment in most of town and now they want the chief of police to approve all commercial entertainment. - Why does the City want to spy on its citizens with a larger network of street cameras? - Why are citizens constantly encouraged to contact the police every time they see anyone suspicious our out of place? - Why has the Police Department stopped letting reporters have access to police reports, and instead issues press releases with inaccurate information? - Why has the City Council done away with "minutes" at City Council meetings (and will do so now for Committee meetings), making it impossible to easily find out what decisions they'd made. We could go on an don. Definitely something is rotten in town. What it is? I don't know. On the one hand, it would seem that the "powers that be" - whoever they be - are trying to bring the town back to its 1970's glorious days. But can they not see that that shipped has long sailed? White middle, class people are not leaving San Leandro because of racism, or because they reject multi-culturalism - but because our schools suck. Interestingly, the city is not very interested in helping with that.
Summer Hemphill July 12, 2012 at 08:13 PM
The city has chosen to ignore all scientific evidence that marijuana is medicine & that it's illegal to obstruct access to patients under state law ! The Patches unscientific poll reveals that 80% of respondents support medical marijuana dispensaries in San Leandro ! Statewide polling shows support in California is presently at 78%,so the Patches poll should be considered accurate. Since they've chosen to ignore both scientific & un-scientific data,it makes one wonder what information they actually considered before launching their callous,unwarranted & self-righteous attack on the citizens of San Leandro ? It's the cannabis patients who are law-abiding & insist that the law be enforced & the City Council which defies state law & insist they have a right to ignore it ! Let me simplify this for those who haven't been paying attention. Cannabis patients are the good guys (white hats) & the City Council,City Manager & City Attorney are the bad guys (black hats) ! Let's plan on turning out en masse this Monday night & hold their feet to the fire ! Anyone voting to violate state law in light of the latest court rulings is guilty of violating their oath of office to uphold state law.They should immediately be charged with malfeasance in office,removed forthwith & they should be "banned" from ever seeking public office again ! Any Councilmember voting to further obstruct the "safe & legal access" to medical marijuana can kiss any future political ambitions they may have goodbye !
Taxpaying SanLeandran July 12, 2012 at 08:45 PM
City Attorney "bets" once again that San Leandro won't get sued… I'm tired of a contracted-out attorney, whose financial interest is to drum up more legal issues to bill against, betting with millions of dollars of taxpayer money… "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." But our oft-incorrect contracted attorney, who has cost us millions in legal fees and settlements SO FAR, knows better and wants to gamble with our rights, rights the CA supreme court said we have. And why is it exactly that the city council so decisively wants to supercede the rights the state of California has given us anyway? What does the city have to fear and why do they have only one path, banning, on the table? Where's the regulation option? Where are our city council members on this issue? They need to speak up!
Mike July 12, 2012 at 09:24 PM
The schools suck because of the school board. The city council has reached out on many occasions over the last 30 years attempting to offer help only to be rebuffed by the school board members, why I have no idea. As for the city "banning entertainment' the real world reason is capitalism. If their was a demand that would make money restaurants and other venues would attempt to go through the process of locating here. Believe it or not the city has always been reaching out and attempting to get popular trendy food venues to locate here, but the companies have not seen the value. As for reporting suspicious people in the neighborhood whats wrong with that? I have had cars broken into, I have had neighbors robbed, I just don't see how knowing your neighbors and noticing someone not from your block/neighborhood hanging out and making a note or reporting it is bad. Just seems like common sense. As for marijuana, I'm all for the tax dollars but its not a cut and dry deal. It is against federal laws, Harborside in oakland is now feeling the wrath of the Feds. Also you have to figure out how many more cops will be needed to combat the crime(breakins mainly). It may not be the revenue panacea a lot of folks believe it will be.
Marga Lacabe July 12, 2012 at 09:48 PM
Yes, Mike, it's everyone else's fault but City Hall's. We get it.
Mike July 12, 2012 at 10:32 PM
I actually went through the San Leandro schools and know the many failings of the school board over the years. You as a recent San Leandro resident might not realize that the school board has been usesless for more years than you have been alive.
Leah Hall July 12, 2012 at 11:23 PM
Listen up, Lacabe. "Recent" San Leandro residents will get a say in our city when we rip her out of the cold dead hands of the LIFE-ers.
Frank Mockery July 13, 2012 at 12:01 AM
The feds are trying to intimidate cannabis patients & dispensaries as more states approve medical marijuana & several will have legalization efforts on the November ballot. Remember in 2010 55% of Alameda County voters wanted to legalize marijuana completely ! So while perhaps the ban isn't the most important issue to the voters in San Leandro,it has little support either other than from a small yet vocal group led by those in law enforcement ! Is anyone surprised that the police have made a concerted effort statewide led by the California Police Chief's Association to thwart the will of the voters & Legislature ? Until the city is forced to abide by state law & respect the rights of cannabis patients San Leandro is nothing more than a totalitarian police state under martial law ! Whether it's a "revenue panacea" or not isn't the relevant issue,although every dollar helps the cash strapped city coffers ! President Obama is coming to Oakland later this month & if he isn't coming to announce significant change at the federal level,he need not come at all as he'll certainly feel our wrath !
Leah Hall July 13, 2012 at 12:16 AM
It sounds like real patients would benefit from intimidating "patients" cloaked by the cover of "medical" marijuana more than the rest of us. Just saying.
Frank Mockery July 13, 2012 at 12:31 AM
There are no phony patients,every one has a recommendation from a physician licensed by the state of California who has determined that using marijuana would provide relief for a medical condition they have ! Some people think the guidelines for what ailments you can get marijuana for are too permissive,allowing some that don't appear sick enough to them to acquire marijuana. The voters approved those guidelines in 1996 & the fact that it's still a matter of contention today speaks volumes about the obstructionists & prohibitionists in our midst ! If you don't like the guidelines which became law as an initiative & can only be changed by putting another initiative before the voters,good luck with that ! But that's not the issue here,the issue here is local access guaranteed by California law & the self-righteous simpletons who think they're above the law by denying it to us illegally & with malice aforethought ! When was the last time the San Leandro City Council right about anything ? Exactly !
Leah Hall July 13, 2012 at 12:35 AM
Frankly, Scarlet....
David July 13, 2012 at 12:40 AM
The same president who toked up so much he crashed his friend's car has directed his "Department of Justice" to bust more medical pot joints (haha) than Bush ever dreamed of during his beneficient 8 years. you obama voters are such rubes.
Leah Hall July 13, 2012 at 12:47 AM
Big sisters, who amongst us doesn't have a younger brother that wrecked the family car and smoked pot? My brother even tore a hole in the top of my family's camper going through the Jack-In-The-Box drive thru. Took out their sign too. Munchies, I guess. :)
anthony July 13, 2012 at 01:53 AM
Interesting piece in the East Bay Express yesterday that I feel represents a fair assessment into the near future of medical marijuana in California. Joe Elford's prediction escapes the typical hyperbole, if not mania, that unfortunately is far too prevalent in "stringsville", and the Down's article presents a delivery strategy that could be just the transitional stage to satisfy the real needs of medical marijuana patients. http://www.eastbayexpress.com/ebx/medical-marijuanas-stealth-providers/Content?oid=3283714
Bong Sativa July 13, 2012 at 05:07 AM
Since Jayne Williams has never been right about anything before I'd like to take her up on that bet. I'll lay you 4 to 1 that she's wrong again. How about if she's wrong she quits & reimburses the city for years of her poor legal advise.
Marga Lacabe July 13, 2012 at 06:11 AM
Yes, Mike, forty years ago, when you went to school, the School Board was bad - therefore we can only presume that any problems in our educational system are due to the school board. Well, at least we do now that forty years ago they failed to educate children on critical thinking skills just as much as they do today.
Leah Hall July 13, 2012 at 06:16 AM
Good job, EBEX. I had my doubts but you took the high road.... Grateful.
Marga Lacabe July 13, 2012 at 06:38 AM
Now, this seems like a mighty fine bet to make. Go to the City Council meeting on Monday and make it yourself.
Tom Abate (Editor) July 13, 2012 at 05:26 PM
I agree with anthony above that the Express article suggested the future of medical marijuana would be to separate the pain relief from the high. If medical uses were the true aim that might work. But I think MM is a halfway point for those who want to end marijuana prohibition. Which is why the prohibiters are fighting it so hard. I do wonder: would there be the criminal incentive if anyone could grow a pot plant as readily as a tomato plant? And if not, is the prohibition argument that pot is worse than legal alcohol?
Leah Hall July 13, 2012 at 06:03 PM
Anyone can grow the plant as readily as a tomato plant, right? It's just not the product that our pot connoisseurs have come to yammer for. In essence, I understand that these folks demand the "The Reserve Flight," not the "old plonk of the 70's and 80's."
Leah Hall July 13, 2012 at 06:57 PM
To the "halfway point" question. Advocates frequently use this as justification for their cause, claiming that voters want MM to be used for this purpose. In reality, according to an interview of it's author/architect on PBS's Frontine report, it was written out of compassion for legitimate patients (and voted for out of compassions as well, presumably by many voters like myself). That fact gets warped all the time in unbalanced news reports and by fearful(?) politicians.
Leah Hall July 13, 2012 at 07:16 PM
To the alchohol vs pot question (your last) That isn't really the problem, in my view. I think the real problem is that the advocates for ending prohibition would rather "smoke in their parent's basement" rather than do the real work structural change that needs to happen. This is an interstate commerce issue and a global heath issue, period. Pot belongs with the same regulation mechanisms as alcohol, tobacco and guns.
Tom Abate (Editor) July 13, 2012 at 09:19 PM
So we'd have the Bureau of Alcohol, Tobacco, Firearms and Ganga.
Summer Hemphill July 13, 2012 at 09:23 PM
Making marijuana legal isn't going to cause millions more to use marijuana,anyone who wants to use marijuana is using it now be they sixteen or sixty ! Legalization would just remove the criminal stigma from something that according a World Health Organization report forty-five million American's have done ! Tobacco kills 480,000 every year,alcohol 85,000,prescription drugs 36,000,OTC drugs 18,000,marijuana 0. The August edition of The Journal of School Health says that "alcohol is the real gateway drug" not marijuana ! A high school senior who ever taken "one drink" is 13 times more likely use tobacco or cocaine & 16 times more likely to use marijuana ! Legalization takes it out of the hands of criminals & allows the government to regulate & tax it,but that is not the issue at hand. The issue is whether the City Council will continue to defy current state law in their unwarranted & ill-conceived effort to thwart the will of the voters & Legislature by continuing to block access to medical marijuana ! State law is clear bans are "pre-empted" according to the most recent Appellate Court ruling ! The cities "brilliant attorney" "thinks" that it will be overturned "if" the California Supreme Court decides to hear a yet to be filed appeal of the ruling ! This is the same "brilliant" attorney who said annual moratoriums & bans were legal too ! Until then the law is the law & I'm certain that the law-abiding citizens of San Leandro would expect their City Council to obey the law !!
Leah Hall July 13, 2012 at 10:12 PM
We can laugh about it today, but someday it's going to happen...
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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