It looks like one of the state’s oldest and largest medical marijuana dispensaries will be staying open for the foreseeable future despite the best efforts of the U.S. Attorneys Office for the Northern District of California.

U.S. District Judge Jon Tigar put a hold on a forfeiture action sought by U.S. Attorney Melinda Haag against Berkeley Patients Group (BPG) until an appeal of one aspect of the case could be heard by a higher court. That might take awhile.

Haag first moved against the dispensary toward the end of 2011, when the federal government initiated a crackdown on medical marijuana dispensaries across the state. President Obama and members of his administration, including Attorney General Eric Holder, had signaled since 2008 that the federal law against possession, sale and cultivation of marijuana would not be aggressively enforced in states that had passed laws legalizing medical marijuana. That included California, which legalized it in 1996.

Although President Obama and Holder have publicly re-iterated on multiple occasions no intention of enforcing the federal drug law unless egregious excesses or accompanying illegalities are present. That does not appear to be the case with BPG or in a similar prosecution of Oakland’s Harborside Health Center. What they do have in common is size; they are both big.

Haag said in a 2012 statement that size matters and the larger the dispensary, “the greater the likelihood that there will be abuse of the state’s medical marijuana laws, and marijuana in the hands of individuals who do not have a demonstrated medical need.”

Both dispensaries are considered models of propriety and both have the legal support of the cities they reside in. It’s Berkeley’s support of BPG that netted it a reprieve.

To avoid prosecution in 2011 for being too close to two schools, BPG moved across the street. Haag didn’t care. She filed a forfeiture action for that land and buildings in May 2013 in U.S. District Court, which was challenged by the landlord, Nahla Droubi of Moraga, the dispensary and the city of Berkeley.

Haag challenged the city’s standing and Judge Tigar tossed them out last June. Berkeley appealed and the judge put the forfeiture on ice until the Ninth Circuit Court of Appeals gets a crack at it. Berkeley argues that it should be heard in the case because the dispensary generates tax revenues for the city and it has the authority to regulate dispensaries in its jurisdiction.

Haag’s office argued that granting a stay on the forfeiture action during the appeal will disrupt the federal government’s “status quo” because it won’t be able to enforce federal law against BPG. Judge Tigar responded that the status quo that counts is the dispensary’s record of operation since it opened in 2000. He also cited Oakland’s success in convincing federal judges that they should be a party to the Harborside court fight as good reason to think the appellate court will see it BPG’s way.

The Oakland Tribune said the case is not likely to be heard soon.

–Ken Broder

To Learn More:

Berkeley Dispensary Gets Reprieve in Judge's Ruling (by Tom Lochner, Oakland Tribune)

Feds Lose in Court Against Berkeley Marijuana Dispensary (by David Downs, San Francisco Chronicle)

Seizure of Medical Pot Dispensary Stayed (by Katherine Proctor, Courthouse News Service)

Federal Judge Rules in Favor of California's Oldest Marijuana Dispensary (by Carly Schwartz, Huffington Post)

San Jose Finalizes “de Facto Ban” on Medical Marijuana (by Ken Broder, AllGov California)

United States of America v. Real Property and Improvements Located at 2366 San Pablo Avenue, Berkeley, California (U.S. District Court Northern District of California)