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The fire department takes pains to avoid talking politics, but Deputy Chief James Williams said: "The reason that building and fire codes exist is to prevent fires from occurring, and if there are people violating the building codes and fire codes, it may contribute to the ignition and growth of fires. Our main goal and our number one priority is to prevent fires and emergencies from occurring, and the best way to ensure that is to make sure people have properly functioning smoke detectors in homes and are not participating in activity that is illegal and that is not in line with applicable building and fire codes."
Oakland has laws that regulate things like altering the electrical wiring in a home, making structural changes, using residential property for commercial activity, and handling hazardous materials like pesticides and fertilizers. No medical marijuana law supersedes those regulations. Yet code enforcement is not exactly Oakland's strong suit, and the city lacks funds for any new campaign. Still, finding the money to merely enforce existing city codes could significantly reduce the risk to public safety from pot farming.
In July 2010, the Oakland City Council went searching for that money. It approved a plan to permit, tax, and regulate up to four large-scale farms with no cap on size. The effort was expected to raise millions of dollars in annual tax revenue for the struggling city. The new, legitimate supply of pot would have theoretically reduced the price, thereby forcing many illegal home growers out of work. The proposal also would have generated enough funds so that city inspectors would have the resources to shut down dangerous grows.
Since then, however, City Attorney Russo, DA O'Malley, and US Attorney Haag have concluded that Oakland's plan would have violated state law. On February 1, Haag made it clear in a letter to Russo that federal authorities could come after commercial-scale pot producers, whether they held permits or not. The federal government could also seize farm properties as part of vigorous enforcement against "unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law," Haag wrote.
Law enforcement's chief concern typically has been about "diversion." That is, all that Oakland pot probably wouldn't stay medical for long. They worried that the large farms would end up supplying the local black market and shipping to states that have yet to legalize cannabis for medical needs.
But what law enforcement appears to be ignoring is that small, illegal growers in Oakland are already selling pot on the black market. The council's plan also would have finally put some of those growers out of business. "I know people that have shipped pounds out to New York, Miami, and Atlanta because they couldn't sell it around here," John said.
In Mendocino County, officials have apparently figured out a way to regulate growers without running afoul of the feds. Last year, county supervisors quietly rolled out a system to permit medical marijuana grows of significant size. All grows are under 99 plants, and growers must pay $1,500 to apply for a permit and pass a background check with the local sheriff's department.
Permitted growers must then submit to a $500 farm inspection with a third-party certifier — like a smog check — and buy $50 zip ties for each plant from the city. The zip-tie system discourages diversion, while permit, inspection, and zip-tie fees fund the program.
At a medical cannabis conference in Berkeley in January, Mendocino County Supervisor John McCowen said that he received three calls from the Drug Enforcement Administration about the county's program, and after the DEA officials reviewed it, they went away.
The key difference between Mendocino and Oakland seems to be the scale of permitted farming and the amount of publicity around it. Colorado and Arizona are also setting up state-permitted grows, but with much less fanfare. By contrast, Oakland's mega-pot farms, which would be the first in the state, fed media hype and drew a huge target on the city's back.
Last month, Russo announced that his office would no longer help the council craft a viable ordinance. The move came two months after the council had stopped the permit process for the large pot farms and abandoned the law it passed last July. The city council is now paying an outside law firm, Meyers Nave, to help it rewrite the city's ordinance. A report is due out this month.
In late January, Councilwoman Desley Brooks submitted a rough proposal for a new law that attempts to address some of the legal issues raised by Russo, O'Malley, and Haag. One of their primary concerns is that state law requires the grower, the dispensary, and the patient to belong to the same collective. And the main reason the law that the council approved last July was likely illegal was that it allowed the large farms to sell to more than one collective. It's also one of the key reasons why some small farms currently in operation in Oakland are illegal, too.
Brooks' proposal attempts to solve the problem by requiring that each large farm also has a dispensary and by forcing growers to only provide cannabis for their dispensary's patients — and no one else. However, her plan also appears to have two problems. First, it would allow grows of up to 50,000 square feet, which is more than the total amount of space needed by all of the city's current dispensaries. And second, it would be difficult under her plan to determine how big a grow should be if the dispensary has yet to open and doesn't have any patients.