What's Happening with New East Bay Pot Laws?
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What's Happening with New East Bay Pot Laws?
Posted by CN Staff on August 04, 2010 at 10:12:42 PT
By Thomas Lord
Source: Berkeley Daily Planet
California -- The legal status of medical marijuana, and marijuana generally, is changing in these parts. Richmond, Berkeley, and Oakland all have recently made or initiated significant changes in marijuana legislation. November’s state ballot includes Proposition 19, the “Regulate, Control and Tax Cannabis Act of 2010”. Where do these changes lead? In one extreme scenario, Oakland, Berkeley and Richmond may become the economic capital and ultimate tourist destination for legalized marijuana in the U.S.
In an alternative extreme scenario, East Bay commercial pot trade may be chilled as a prolonged confrontation between federalism vs. states’ rights, and prohibition vs. legalization, unfolds. In between those two extremes lies of a spectrum of possibilities and conflicting viewpoints. What will be the effect on crime? On marijuana abuse by youth? On medical marijuana patients? On the free market economy? On the core values of society? Or will national legalization and liberalization happen so quickly, and so thoroughly, that the East Bay enjoys no particular economic advantage? This article offers a series of analytic maps of the emerging and proposed legislative landscape and its various interpretations.  The Legislative Landscape  Oakland has recently authorized, by ordinance, the licensing and taxation of large-scale marijuana grow operations for medical purposes. Berkeley has placed on November’s ballot a measure to license a small number of modestly sized medical grow operations. In September, Richmond will consider finalizing legislation to license a small number of grow-ops. All three cities anticipate and are making way for a new type of business: the legally recognized commercial grow operation. In all three cases, grow operations are intended to be separate business entities from retail distributors of marijuana. Each jurisdiction intends to tax the business revenues of the grow-ops as they make their wholesale transactions with retail operations. Each jurisdiction taxes the retail operations separately. Some within the medical marijuana community object to both the taxation of medicine and to the imposed “double taxation” structure. Proponents of the plan hail the boost to municipal revenues and the supposed avoidance of a monopoly on the local marijuana industry. Berkeley and Richmond are also working on limiting the number of medical marijuana dispensaries and changing the taxation and zoning requirements of such dispensaries. Oakland is adjusting taxation as well. The contrast between Berkeley and Richmond regarding existing dispensaries is striking. Richmond seems intent on shutting down existing dispensaries before allowing authorized dispensaries. In contrast, Berkeley proposes to grandfather in its existing dispensaries, which seem to have a working relationship with the city government and Berkeley police. At the state level, Proposition 19 would legalize possession and consumption of marijuana in small quantities by persons at least 21 years of age. It would impose new restrictions, such as that consumption must be in private and must be out of view of anyone under 21. Proposition 19 would impose new, somewhat harsh penalties for providing marijuana to any person under 21 or consuming it in front of such a person. Some advocates, such as Dennis Peron, have come out against Prop. 19 because of the new restrictions it would impose. Others view Prop. 19 as a step in the right direction, recapitulating legislation that led to the end of alcohol prohibition. Significantly, Proposition 19 would allow local jurisdictions to permit, regulate, and tax the commercial growing, distribution, wholesale and retail sale of marijuana to persons at least 21 years of age – subject to only a few restrictions (such as not selling more than one ounce in a retail transaction to a non-medical-use buyer). That is to say, the Berkeley, Richmond, and Oakland system of medical grow-ops and dispensaries could easily be recast as general purpose operations for legalized marijuana. At the federal level, the Controlled Substances Act classifies all production, possession, consumption and conveyance (including commercial conveyance) of marijuana as federally unlawful (with but a few, academic exceptions). For quantities large enough to be regarded as “commercial scale” offenses, penalties are prescribed. For small, first-time-offense, usually overlooked “personal use” quantities, the federal government may or may not choose to impose significant civil penalties, ultimately erasable from one’s record at significant expense, depending upon current regulations established by the federal Attorney General’s office. That discretionary provision for small amounts and personal use is important, nt. It is one of the authorities upon which the Obama administration based its order to the DEA to tolerate those medical marijuana dispensaries that are lawful under state statues. It is not clear that the same discretion applies to large scale commercial grow operations, whether for medicinal purposes or for Proposition 19 purposes – in the worst case, the feds could be successfully sued into shutting down locally authorized commercial grow operations in Richmond, Berkeley, and Oakland.   The Local Law Enforcement Landscape  Berkeley and Oakland law enforcement seem to get along well for the most part with their resident dispensaries and the associated activities. Richmond is, at this time, engaged in trying to shut down all of its extant dispensaries while at the same time considering a regulatory framework to permit a few (presumably new) dispensaries. In all jurisdictions, there’s enforcement against dangerous and fully unlawful operations – such as fully unlawful “grow houses” in residential areas –when authorities notice them. By all accounts, enforcement lags far behind the prevalence of such operations and enforcement all too often only follows a tragedy that leads to accidental discovery of the unlawful grow operation (such as a fire or a violent crime). Not all unlawful grow operations are particularly dangerous, however. Multiple sources confirm that there is quite a bit of modestly large to fully commercial-scale, health-conscious, safety-concerned growing already in our region and that this has been the situation for quite a long time. Current efforts to permit regulated and taxed grow operations are, from the perspectives of some within the medical marijuana community, a chance to bring these extant and widely respected operations out of the dark and into the light.   The Polite Federal Law Enforcement Landscape  The federal Controlled Substances Act plainly makes a felony of activities that are essential to any commercial scale marijuana activity. It also authorizes the federal government to prosecute any level of possession, transfer, or use of marijuana, affording the federal Attorney General’s office discretion for small amounts. Partially on the basis of that discretion, the Obama administration has taken a hands-off approach towards medical marijuana dispensaries and patients who comply with state law. There is deep concern within the medical marijuana industry that, as locally authorized commercial scale grow operations are established, the DEA and FBI will crack down and force a confrontation on the issue. While on the one hand it seems clear that the Obama administration would not be eager to take such steps, it is equally clear that such steps are nearly mandated by the Controlled Substances Act. A realpolitik consideration can not be overlooked: federal enforcement against locally authorized and reasonably regulated grow operations is, as a practical matter, futile and self destructive. A favorite narrative among medical marijuana advocates hearkens back to when Dennis Peron’s outlaw medical dispensary was raided by the feds. In response to the raid, the community sprouted many more outlaw dispensaries and, meanwhile, Peron coauthored Proposition 215 which authorized such dispensaries at the state level. In short, the medical marijuana movement in California – and now the Prop. 19 proposal for general legalization – dances a polite and largely unresisted insurrection before the federal government. In conjunction, the two levels of government are replaying the patterns that led to the repeal of the 18th Amendment (alcohol prohibition).   The Tense Federal Law Enforcement Landscape While the medical marijuana and legalization debates rage on, the fact remains that violent organized crime fills much of the demand for marijuana. The organized crime entangles domestic “prison gangs” as well as organized crime across our nation’s borders. Prohibition of marijuana observably enriches powerful enemies of the state – just as the prohibition of alcohol did before it. This may be one of the reasons the federal government is less than eager to interfere with state-level medical marijuana and even marijuana legalization efforts.   The Historical Comparison to Alcohol Prohibition The legal gamesmanship around marijuana bears a striking resemblance to the political games that brought an end to alcohol prohibition in the US: The 18th Amendment to the US Constitution, ratified in 1919, outlawed “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes”. Most important, the amendment specified no specifics other than: “The Congress and several States shall have concurrent power to enforce this article by appropriate legislation.” That reasonable discretion, left to Congress and the legislatures, proved the wedge by which the widespread unpopularity of prohibition was overcome. Here are two anecdotal examples: As Time Magazine reported in 1931, and the Napa Valley Register records, California grape growers eagerly sold a dried grape concentrate, easily shipped around the country and dissolved in water, warning consumers “not to let the juice sit aside in a jug for 21 days, because that would cause fermentation to occur, and that using a cork was unnecessary for non-alcoholic beverages.” That was on the warning label, according to the Register Towards the end of prohibition, not long before the 21st Amendment was ratified (repealing prohibition), Congress exercised its authority to define “intoxicating”so as to permit – even under prohibition – beer of up to 3.2% alcohol. Per Time Magazine again: “This was the spirit of the Hundred Days. Action, and action now. Said Will Rogers: ‘The whole country is with him, just so he does something. If he burned down the Capitol, we would cheer and say, ”Well, we at least got a fire started anyhow.“ ‘On Roosevelt's second Sunday in the White House, he remarked at dinner, ‘I think this would be a good time for beer.’ That same night, he drafted a message calling for Congress to cancel the Prohibition ban on 3.2 beer. The House approved this on Tuesday and the Senate on Thursday. (It took until Dec. 5 before Utah became the 36th state to ratify the 21st Amendment to the Constitution, repealing Prohibition in its entirety.)” During prohibition, alcohol was lawfully sold (often with a wink and a nod) at pharmacies – strictly for medicinal purposes. Casual off-market manufacture was common (even FDR is said to have indulged in moonshine) and, of course, organized crime around illicit alcohol became a notorious problem. The legal and enforcement landscape was ambiguous on its surface – but unambiguously led straight to the 21st Amendment, repealing prohibition and returning alcohol to a “tax and regulate” status. It is difficult to imagine how today’s wrangling around marijuana does not end similarly – ending in some form of tax and regulate legalization. If California’s Prop. 19 is successful, that day of legalization may come very quickly.   Cannabusiness  The perspectives sketched above show a remarkable alignment of interests: Our city governments, assuming marijuana will be bought and sold no matter what they do, prefer a tax and regulate regime. Our federal government, finding marijuana prohibition unenforceable and, worse, a boost to the worst kind of organized crime, shows signs of preferring a tax and regulate regime. The roughly half of Californians who poll in favor of Proposition 19 prefer tax and regulate. If history is any indication, the end of marijuana prohibition is very likely, soon. Prohibition will be replaced by various forms of regulation and taxation. There are two concerns emerging from within the medical marijuana industry (including its customers) and, oddly enough, from economic conservatives: First, there is the concern of excessive and inappropriate taxation. While it is a widely acknowledged open secret that a great number of medical marijuana users are, by most estimations, recreational or spiritual users with dubious medical needs, it is equally unambiguous that there are many patients for whom medical marijuana is absolutely vital to survival or to any semblance of a quality of life. While budget-challenged cities stand to collect a lot of tax revenue over wholesale and retail marijuana transactions – especially if Prop. 19 passes – there is concern among care providers that high taxes will hurt many of the patients that are most in authentic need. Sometimes, it seems, “for medicinal purposes” is not a metaphor or polite obfuscation but rather a literal truth. For those in need but of limited means, the gold rush stampede towards legalization in the form of tax and regulate is at once welcome and threatening. Second, there is concern for the competitive marketplace. While grow operations, and, to a lesser extent, unadvertised dispensaries, are tolerated with a blind eye rather than heavily regulated, competition quietly flourishes. If but a few large grow operations and but a few busy retail outlets are legally favored, a monopoly or oligopoly may result.   The Insidious Impact on Youth  Berkeley and the region generally have some of the highest rates anywhere of teenage abuse of marijuana. Some argue that “tax and regulate” or any similar liberalization can only add to the problems experienced by teens. While this rhetoric can still be found in the political debate, readers can easily verify for themselves that numerous studies have shown the opposite to be true: legalized but regulated marijuana tends to dampen, not amplify, the level of abuse by youth.   The Extreme Scenarios Richmond, Berkeley, and Oakland are operating on the assumption that marijuana legalization – in tax and regulate form – is just around the corner. Should Prop. 19 pass in November, it is not as though existing dispensaries will open, the day after, to the general public (insiders tell me), but that is their likely evolution. Similarly, authorized commercial medical grow operations will have both opportunity and motive to grow for the 21-and-over public. By leaping ahead of other jurisdictions in preparing for a Prop. 19 victory, these East Bay cities have the opportunity to become true destination spots for pot tourism and legitimate exporters of marijuana. On the other hand, there is no guarantee at all that the federal government will quietly retreat from the mandates of the Controlled Substances Act. It may well be that the federal government challenges either or both of our recent local ordinances and Prop. 19. This article deliberately offers no synthesis or sweeping conclusion beyond the maps given above and by analogy to this morsel from Maureen Ogle, writing for the L.A. Times in 2008: “Today, we look back on Prohibition as an exercise in temporary insanity, but the 13-year experiment in sobriety was rooted in our quintessentially American faith that we can perfect the world. A broad cross section of people -- men and women, urban and rural, young and old -- supported the ban on alcohol because they believed that it would reduce crime, alleviate poverty, strengthen the family and nurture a more perfect union.” An observation that deserves to be toasted. Source: Berkeley Daily Planet (US CA)Author: Thomas LordPublished: Tuesday August 03, 2010Copyright: 2010 The Berkeley Daily PlanetContact: opinion berkeleydailyplanet.comURL: -- Cannabis Archives 
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Comment #8 posted by greenmed on August 05, 2010 at 14:04:57 PT
Storm Crow
Thank you for the list!
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Comment #7 posted by Paint with light on August 05, 2010 at 13:59:45 PT
Storm crow
Thanks for the list and all your insightful comments such as at the LA Times article in # 4 above. We will destroy their lies with the truth.It felt good to see runruff over there also.Keep pounding away everyone.We will beat their swords into plowshares and go plowing.I haven't heard from Joey "It's equal to heroin" Hensley, my Tennessee state representative yet. I think he is hiding under a rock somewhere.Legal like
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Comment #6 posted by FoM on August 05, 2010 at 05:12:55 PT
Storm Crow
Thank you. Later on today I will e-mail you for the list. Thank you for your hard work for our cause.
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Comment #5 posted by Storm Crow on August 04, 2010 at 20:32:17 PT
Not strange at all, hon. The change has happened! We have won and the numbers of viewers is just reflecting that! Get used to it, it's only going to get better! It's all over but the shouting (and there's going to be a LOT of shouting from the prohibitionists! Their free ride is ending!).If you'd email me at i.wantgrannyslist(at), I'd love to send you a free copy of my list! It's practically an E-book now with more MMJ studies than you'd care to count- 420 pages full of information. (Actually, I send it out free to everyone who asks me for one! The information is that important!)
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Comment #4 posted by FoM on August 04, 2010 at 19:26:14 PT
If Pot Becomes Legal, CA's Health Will Suffer
If Pot Becomes Legal, California's Health Will Suffer, Stanford Expert SaysAugust 4, 2010URL:,0,6493790.story
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Comment #3 posted by FoM on August 04, 2010 at 13:31:47 PT
Thank you. That's great! You got it. I think people in a hurry will appreciate it too. We have been getting so many people reading CNews recently. Very strange for this time of year but appreciated.
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Comment #2 posted by FoM on August 04, 2010 at 13:21:19 PT
News Article From The Sacramento Bee Blog
California Marijuana Initiative Lacking Potency in Luring Donors August 4, 2010URL:
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Comment #1 posted by konagold on August 04, 2010 at 13:19:59 PT
San Jose puts pot tax on ballot
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