Lawsuit Claims Pot Clubs Illegal

August 24, 2005

Jim Knowles, San Leandro Times

Two residents are going to court to clear the air over the rise of cannabis clubs in the unincorporated area of Alameda County. The lawsuit was filed last month in Superior Court, challenging the legality of Alameda County’s medical marijuana dispensaries, saying the pot clubs are “in direct violation of federal law.”

“Federal law is supreme. It’s right in the United States Constitution. And the Board of Supervisors’ ordinance violates federal law,” said Peter Hagberg, the lawyer for the plaintiffs, who spoke at the San Lorenzo Homeowners’ meeting last week.

“There is a spirit of lawlessness going on,” Hagberg said. “But it can’t be stopped unless people stand up.”

Federal law says that marijuana can only be distributed in a federally-approved experimental marijuana project, Hagberg said.

The Controlled Substances Act allows for just that one exception, he said. The Supreme Court upheld the law in its decision on Gonzales vs. Raich.

“We all have to abide by the law, including officials,” Hagberg said. “They may not like the law but they still have to abide by it.”

He said that his clients aren’t opposed to medical marijuana, just the way it’s being distributed in Alameda County.

The lawsuit names the county board of supervisors and Sheriff Charles Plummer as defendants.

“This law gets the sheriff’s department involved, since they take the applications to open the dispensaries,” Hagberg said. “It gets law enforcement involved in illegal activity, in my opinion.”

Hagberg compared California going against federal law to the Southern states that allowed segregation.

“It’s the same as the ’50s and ’60s when Southern states defied the law by allowing segregation,” Hagberg said. “The courts came down hard on them. Federal law is supreme and you can’t ignore it.”

But state Attorney General Bill Lockyer said that the Supreme Court’s decision doesn’t change California law, which allows cannabis clubs since the voters passed Proposition 215.

The lawsuit claims that both Prop. 215 and the county ordinance are in violation of federal law. The county ordinance will limit the number of cannabis clubs in the unincorporated area to three. The ordinance arose after residents complained that there are too many pot clubs, and that they’re a magnet for crime.

The lawsuit was filed by Matt Rempel of San Leandro and Wulf Bieschke of San Lorenzo. Bieschke said he’s not against medical marijuana, just that the clubs are being “dumped” in the unincorporated area of the county.

“I feel the dispensing should be at the pharmacy or the county hospital,” Bieschke said. “They’re dumping the cannabis clubs in the unincorporated area and Castro Valley and I just think it’s wrong.”

The new ordinance that limits the number of clubs isn’t good enough, Bieschke said.

“It’s still not the right place, or the right way, of dispensing marijuana, in my view,” Bieschke said.

County Supervisor Gail Steele said the complicated issue probably should be hashed out in court. She said the county counsel (the county’s lawyer) believes that the marijuana ordinance is legal.

“That’s probably something that needs to get worked out in the courts,” Steele said. “That’s why we have lawyers.”

Several San Lorenzo residents said they agreed with the lawsuit.

“I know cancer patients need it,” said Gloria Hawkins. “But why don’t they distribute it at the hospital or someplace where they have some control, so you don’t have people hanging around smoking weed all day in somebody’s neighborhood.”

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