December 28, 2001

By Michal Lando, Staff Writer

Contra Costa Times

A second armed robbery at a cannabis club on University Avenue and increasing concern among nearby businesses and residents has provoked the city to consider tightening its policy towards the distribution of medical marijuana.

"We want to have the substance available, but we don't want to make fools of ourselves if the privilege is being abused," Councilwoman Linda Maio said. "I have spoken with the city manager and said we have to pursue every possible avenue to contain and regulate it and make sure it is not really taking advantage of 'compassion.'"

Berkeley is one of a slew of cities across California beginning to face the aftermath of Proposition 215 -- the 1996 voter-approved initiative that allows marijuana to be prescribed for medicinal use -- which, in the absence of regulatory guidelines, has left much to be desired .

In March, Berkeley passed the medical marijuana ordinance, which was put in place to implement the Compassionate Use Act of 1996, the state law that removes penalties for qualified patients and primary caregivers for possessing and cultivating medical cannabis. But no guidelines were established for regulating medical marijuana clubs.

"We have been trying to get clear zoning regulations since Prop. 215 passed," Councilman Kriss Worthington said. "We put forward several proposals but the old city manager (James Keene) killed them. The new city manager seems more favorable but it hasn't been a priority."

Until last April, the city did not require new businesses to state that they intended to sell medical marijuana, according to Mark Rhoades, Berkeley planning manager. "You had to get a zoning certificate for retail sales, but there was no differentiation between the types of retail," he said.

The city has since made it a requirement to indicate the intent to sell medicinal marijuana, though no one has yet applied.

But the two armed robberies in the last few months -- as well as loitering and ongoing suspicions that the cannabis club at 1672 University Ave. is selling to minors -- has brought a previously unfelt urgency to establish greater guidelines for regulating the distribution of medicinal marijuana.

A few days before the second armed robbery occurred, Police Chief Dash Butler and City Manger Weldon Rucker met with club owner Ken Estes to let him know his operation was under surveillance and to tell him to "clean up his operation," according to an e-mail Maio sent to Berkeley Way neighborhood residents. The same day Estes pulled back the men who had been guarding the premises, he was robbed a second time.

Maio, who represents the area that includes the University Avenue corridor, said the city is currently reviewing Oakland's ordinances, which have more guidelines, and may consider adopting a similar system. She said the police department is aware of the problems and is in the process of investigating. One of the biggest concerns is the amount of cash and drugs on the premise, Maio said.

But in the past, police presence has been close to nonexistent, contended neighbors at a recent community meeting held by Maio. And according to the city's Protocols for Medical Cannabis, "medical cannabis-related activities shall be the lowest possible priority of the Police Department."

Fred Medrano, the city's director of health and human services, said the city's low-profile approach stems from the conflict between federal and state law.

"We are trying to meet Prop. 215 by providing access. However, under federal law, the possession, distribution etc., remains illegal. The federal-state problem puts local jurisdiction in a bind and the proposition did not spell any of this out," Medrano said.

But according to Jesse Choper, a UC Berkeley law professor, the Supreme Court decision in May that ruled Prop. 215 did not invalidate the federal laws under which marijuana is an illegal drug does not prohibit cities from taking their own steps -- at least some of them.

"The only thing the city can't do is immunize anybody from the application of federal prohibitions," Choper said. "Like with any other business, there are rules about operating and the police can intervene."

John Gordon, owner of a vacant property next door, said he thought controversial businesses such as a cannabis club should be subject to public review. Gordon, who is trying to rent his building, said he has to disclose the cannabis club to all potential renters, some of whom have been deterred.

"I think with an operation like this, which is unlike even other herbs places, people should have a say -- especially if it affects their lives," Gordon said. "The rights of one person should not minimize the rights of others."

Gordon is one of several business owners in the area who raised concerns about the proliferation of loitering and possible youth involvement.

But Estes, the owner of the cannabis club at 1672 University Ave., denies claims that his business sells to minors. "You have to be at least 18 and you have to have a prescription, but we can't get in between the doctor and the patient -- there are young people with AIDS and cancer but I haven't seen anyone who comes in here who is younger than 18," Estes said, though he acknowledged that last summer patients with prescriptions were selling their medicine to nonmembers on the street. The problem has since been alleviated and memberships of such clients have been revoked, said Estes. He added that he is installing a video surveillance system and a steel screen door for greater safety.

Estes, who opened Medical Herbs three years ago, blames recent armed robberies on the criminal drug trade.

"When we are open we are taking business away from the street people and cutting into their profits and the criminal world doesn't like it so they are starting a little war against us," Estes said. "It is almost like this is the second wave of our battle, the first wave was law enforcement. So basically it is up to us club owners to establish some parameters to make this work."

But currently, very few parameters are in place. It's hard to find out how many marijuana plants a patient is allowed to grow or how much each patient is allowed to buy. "The waters are murky right now," Estes said, adding that a patient can buy anywhere from a gram to a quarter of a pound depending on where they are coming from.

"The normal distribution is about a gram to an eighth of an ounce, but people who travel from far will get from an ounce to a quarter pound," Estes said. "It is really a patient-by-patient situation."

From the inside, Medical Herbs, which functions as both a dispensary and a place to smoke, resembles a coffee house more than a pharmacy.

Several tables and chairs fill the main room and the walls are lined with posters, some featuring Jerry Garcia and Bob Marley.

Estes said Medical Herbs is a nonprofit business. He currently has five employees who are all patients as well. They volunteer their time and in return receive cannabis for medical use.

Dr. Frank H. Lucido, a doctor in Berkeley for 22 years, said that patients who come for medical marijuana evaluations make up 10 to 20 percent of his practice. Since he started making recommendations three years ago, Lucido said he has denied approximately 10 patients, who he thought did not qualify.

"Like with anything, you see people who use too much, but most people are qualified," Lucido said.

Note: The University Avenue club has nearby residents and merchants concerned, and officials looking at possible policy changes.