As reported last night by Michael Montgomery, who doubles as a reporter for KQED News and for the Center for Investigative Reporting's California Watch, Alameda County District Attorney Nancy O'Malley has written to Jean Quan, Oakland's mayor-elect, to caution her about the city's ambitious new medical marijuana law. (Here's a PDF of the three-page letter, dated Dec. 8, 2010: O'Malley-Quan letter.)
O'Malley noted in the letter that her office has "a long-standing policy of declining to issue advisory opinions as to the legality of any particular conduct." She went on to say that as a cancer survivor, she "certainly understands the benefits for those in need of the medicinal use of marijuana in various forms." Nevertheless, she said, her office has ongoing concerns about whether the Oakland's new medical marijuana cultivation ordinance—which would license and tax four massive pot farms in the city—comply with state law.
The letter includes two clear warnings to Oakland officials. First, that the new ordinance will not provide a defense against criminal charges if it's found to go beyond the provisions of the state's medical marijuana laws. And second, it's possible that city officials and employees could face state or federal charges for implementing the new ordinance.
Michael Montgomery's California Watch blog post on the letter outlines a couple of points of tension between Oakland's ordinance and state law:
City officials say the ordinance is an effort to bring order to Oakland’s thriving pot-growing scene and earn millions in tax revenue. They also say the ordinance hews closely to state medical marijuana laws, which allow for marijuana cultivation within a closed loop of patients and providers.
But District Attorney O’Malley’s letter cites specific areas where the ordinance could violate provisions in state law governing medical marijuana collectives. The central point is that under the plan Oakland's pot farms would be taxed as entities separate from businesses that dispense medical cannabis.
The Oakland City Council is scheduled to discuss the medical pot ordinance next Tuesday.