OAKLAND DEPUTIZES MEDICAL POT CLUB

Oakland has become the first city in the nation to name a pot
distributor an official arm of the city, opening a new front in the
legal battle over medicinal marijuana.

"We felt like we needed to be out on the frontier to make sure that
Proposition 215 can be implemented," City Council member Nate Miley said
Thursday at a brief City Hall ceremony.

Prop. 215 is the controversial 1996 state initiative that under certain
conditions legalized distribution of medical marijuana in California,
but has run into roadblocks from state and federal prosecutors.

Thursday, city officials and a team of attorneys announced that a new
city ordinance will permit volunteers and employees at the Oakland
Cannabis Buyers' Cooperative to distribute marijuana for medicinal
purposes without threat of arrest.

City officials are trying to take advantage of a section of the Federal
Controlled Substance Act that was originally intended to protect
undercover police officers who use or transport illegal drugs to
maintain their cover.

The provision says that any officer of a city who is enforcing drug laws
has immunity from prosecution under those laws.

"Designating these officers will blow a hole through the controlled
substances act," said Robert Raich, the attorney who led the effort to
create the ordinance. "An agent of the city has the duty to enforce the
ordinance and is immune under the federal law."

But in the U.S. attorney's office, news of the ordinance drew a cautious
response Thursday.

"All I'm going to say is that we are aware of Oakland's decision and
looking at it very carefully," said spokesman Gregory King.

But the state attorney general's office said the operators of the
Oakland Cannabis Buyers' Cooperative will still be violating state law.

"Our reading of the law and the appellate court's decision found
cannabis clubs cannot operate," said Matt Ross, spokesman for Attorney
General Dan Lungren.

Despite the passage of Prop. 215 by 56 percent of California voters,
Lungren, federal prosecutors and the courts have refused to consider the
clubs as caregivers.

The law allows a patient or "primary care-giver" to possess and use
marijuana if recommended by a physician for the treatment of an illness.

But in recent months, cooperatives in San Francisco, San Jose and
elsewhere have been forced to shut down on the basis that the clubs
violated federal law prohibiting the distribution of controlled
substances.

In May, the federal government won a preliminary injunction against the
Oakland cooperative, which the cooperative chose to ignore.

On July 9, Oakland passed the most permissive medical marijuana
guidelines in the state, permitting medical marijuana users to maintain
a cache of 193 pounds -- or 10 cigarettes per day -- without fear of
arrest.

The city broke new ground again July 28 when the council unanimously
passed an ordinance designating marijuana retailers "officers of the
city."

Thursday was the official launching of the ordinance.

"It is important for humanitarian reasons to shield the club which
provides this substance to people who are less fortunate, suffering and
needy," Miley said. "We see this as a public health issue."

Friday, Raich was to file a motion with U.S. District Judge Charles
Breyer seeking immunity from the May preliminary injunction that
directed the cooperative to close its operations.

In the motion, Raich will employ the new ordinance as the cooperative's
defense against closure.

While medical cannabis advocates seemed confident in their case, some
experts doubted the strength of their legal argument.

"They have to overcome a 500-pound gorilla called the supremacy clause,"
said law professor Franklin Zimring of UC-Berkeley's Boalt Hall School
of Law. "Any conflict between local and federal law and federal law
wins."

Zimring, a criminal justice expert, said the controlled substance act
was originally set up to stop the sale of drugs by using undercover
officers, and the Oakland Cannabis Buyers' Cooperative is attempting to
use the act to sell drugs.

"The judge will have to be a pretty big fan of that approach to buy it
because it seems to be a bit of a stretch," Zimring said.

Backers of the ordinance said Thursday they chose the cooperative as the
city's official medical pot seller because the organization has had a
good track record.

"So far, there have been no complaints. It has been run in a very
businesslike and professional manner," Miley said.

The Oakland Cannabis Buyers' Cooperative operates out of a nondescript
office building in downtown Oakland. The club dispenses marijuana plants
and processed marijuana to its 1,800 members from the same type of glass
case found in a jewelry shop. It also offers courses on growing the
drug, massage therapy and a buffet.

Cooperative Executive Director Jeff Jones said his operation is a
tightly run ship.

"We have a small number of members, everyone must have a verifiable
letter of recommendation from a doctor, and we have video surveillance
and a private security firm to check members' identification," said
Jones, who started the cooperative in 1996 after his father died of
cancer.

While Miley admitted there was no specific plan in place to monitor the
cooperative, he said the city manager's office has done a thorough
safety and financial review and that the ordinance excluded the city
from any liability claims arising from the pot distribution operation.
Examiner news services contributed to this report.

1998 San Francisco Examiner

Checked-by: willtoo