Newark affirms 'no pot' policy

September 15, 2006

Angela Woodall, The Argus

Pot was in the air — metaphorically speaking — at the Thursday City Council meeting, where about 24 pro-medical marijuana advocates urged council members to reject a provision that would keep more pot clubs out of Newark.

If the pleadings of about a dozen users didn't make council members think twice about a blandly worded ordinance, the threat of a lawsuit from the group's lawyer did.

"These issues could be raised in court if the council pursues this ordinance," said Robert Raich, an Oakland attorney for Kindcare, the medical marijuana outlet in Newark that prompted the action.

In a rare move, members of the City Council broke for a closed session to discuss their options with City Attorney Gary Galliano, leaving the unusually large crowd — by council meeting standards — in suspense.

About 40 minutes later, five green lights flashed, signaling that council members had approved the ordinance unanimously.

The ordinance does not prevent people from using medical marijuana, said Councilman Al Nagy after he moved to approve it. "It (permits) the city to regulate the businesses it allows here."

It was the second hearing on the ordinance, which is required by law because the city's Municipal Code will be changed. Still, dismay rippled through the crowd.

While pot clubs already are prohibited in Newark, city officials now have the muscle to reject permit applications by businesses that do not meet federal or state laws. State law allows medical marijuana, where-as federal law prohibits it.

The ordinance came about when city officials discovered Kindcare was selling medical marijuana (consuming it on the premises is prohibited), although it had obtained its business license as a vitamin and food supplement store. The city is seeking to shut the store through a zoning action.

Kindcare was burglarized twice in two weeks this summer, according to the Newark Police Department. Kindcare did not return a request for comment but an attorney for the store, James Anthony, said the owners are "very concerned about security."

California voters approved a measure in 1996 allowing the use and sale of cannabis for patients suffering illness, infirmity and chronic pain.

"This is a people's vote," one advocate, Exotica Ecstasy of Newark, told council members. Dressed in a lavender feather scarf, Ecstasy was echoed by others in the crowd.

"If it wasn't for medical marijuana, I'd be dead right now," said Angel McClary Raich, whose medical marijuana rights case was rejected by the Supreme Court in 2003, setting the stage for current federal law. Her husband, Robert Raich, was on the team of lawyers representing her. She has been diagnosed with an inoperable brain tumor, seizure disorder and pre-cervical cancer, but reacted violently to the medication she received.

The Oakland resident worried that Tri-City area patients will be forced to drive too far for medical marijuana or resort to unsafe outlets if the Newark dispensary closed. Fremont and Union City prohibit such outlets.

Mayor Dave Smith would not comment on the ordinance because of possible litigation against the city.

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