Taking Another Hit of Marijuana 

After a judge voided the 2004 election results of Measure R, Berkeley's controversial medical pot initiative is back on the ballot as Measure JJ.

James Anthony remembers exactly where he was on August 15. He spent the day running errands and making multiple visits to Berkley City Hall. As campaign director for Measure JJ, self-dubbed the "Patients Access to Medical Cannabis Act," the lawyer was waiting to see if anyone would file a formal opposition to the measure. They had until noon of that day.

It was a surreal Friday. Anthony recalls that city hall employees were holding an informal Hawaiian-luau-themed party. Officials were wearing Hawaiian shirts, and he says he's pretty sure someone was decked out in a grass skirt. After the clock struck twelve, he requested a copy of the opposition argument to JJ. But none had been filed.

It was an anticlimactic turn of events for Measure JJ, which, in its previous incarnation on the 2004 ballot as Measure R had been met with stiff opposition. That race was so harrowingly close — 25,167 votes against versus 24,976 votes for — that Alameda County Superior Court Judge Winifred Smith ordered a recount. But that turned out to be impossible because the county's touch-screen vendor, Diebold, erased the ballot results. So Smith made a decision last year to void the election and ordered the measure back on the ballot.

Measure JJ, which is similar to Measure R but incorporates changes made to the Berkeley Municipal Code, would allow medical marijuana dispensaries to set up shop in retail areas without a use permit, thereby bypassing a public hearing and not allowing neighbors to stop them. It also would establish a Peer Review Committee composed of people designated by dispensaries and collectives themselves to oversee the operation of these establishments, as "drug control officers" deputized by the city.

The measure also would allow medical marijuana patients, caregivers, and collectives to possess as much pot as they want. Currently, city law limits marijuana patients and caregivers to 2.5 pounds of dried outdoor-grown cannabis at any one time, while collectives may possess no more than 12.5 pounds. The measure would permit growers to cultivate unlimited amounts of pot indoors, while outdoor growing operations would be limited to what your neighbor cannot see.

Councilwoman Linda Maio, who once ran the campaign against Measure R, now takes a neutral stance towards JJ. The difference this time around? In the years between R and JJ, Maio introduced and helped pass a new law that limits the number of medical marijuana dispensaries in Berkeley to a maximum of three. The dispensary limit is a key factor which, as Anthony observes, seems to have mellowed the opposition. "The fear at that time," he said, "was that R would lead to a proliferation of, 'Oh my god, pot clubs everywhere!'"

Yet even with the dispensary limit, Maio isn't throwing her weight behind JJ. She said that while she supports medical marijuana, and points to one dispensary, Berkeley Patients Group, as an exemplary operation, there's still one aspect of the measure she's hesitant about — eliminating the requirement for dispensaries to obtain a use permit. She views that as short-circuiting the public process.

Fellow council member Gordon Wozniak agrees. "One of the clinics is very successful and generates $10 million in sales by soliciting customers from all over Northern California; if the other clinics also became regional centers and could relocate anywhere in the city, without a public hearing, the negative impacts could be large," he said. Wozniak, a political moderate who opposed R, also objects to the no limits on medical marijuana possession and the nearly no limits on pot growing. "I don't think it's a good idea," he said. "If people really grow large amounts, there's a temptation to sell it on the side, a temptation for other people to try to steal it. That can lead to additional increases in crime." Wozniak also calls the plan to have the Peer Review Committee populated with representatives from dispensaries and collectives themselves a "farce." "It's like asking the big corporations to self-monitor themselves," he said.

Nonetheless, Maio predicts that JJ likely will pass. Councilman Kriss Worthington, who supports the measure along with councilmen Max Anderson and Darryl Moore, says the measure's plan to deputize individuals operating collectives or dispensaries as drug control officers would protect them under federal law. "If the federal government comes in and arrests somebody who runs a collective, they can go to court and say, 'We are under federal law designated by our city as drug control officers,'" Worthington explained." It makes it harder for the federal government to go after them and raid the clubs."

According to medical marijuana advocacy group Americans for Safe Access, which has been a proponent of both measures R and JJ, raids and busts in California by the federal Drug Enforcement Administration have escalated over the past few years. Spokesman Kris Hermes points to the DEA's raid of the Berkeley Patients Group last year. Hermes said that uneasiness about DEA tactics is likely a major reason for why Berkeley dispensaries either asked not to be quoted or did not return calls for this article, despite his personal request.

As for Anthony, he plans to make sure history doesn't repeat itself. On Election Day, he says he will be closely monitoring the vote and the counting.

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