The Oaksterdam Model

We have all heard of the laissez-faire marijuana laws that go on in Amsterdam, so adopting the moniker “Oaksterdam” only made sense when the city of Oakland became one of the most progressive places in California for medical marijuana regulation. Perhaps almost as notorious as Amsterdam is for its marijuana laws, Oakland is also known (amongst many other things) as a place with a high crime and murder rate. Given how active Oakland has been in regulating its medical cannabis industry in a place that is no stranger to attendant social harms, Oakland is an ideal case study in assessing the way land can be used to help achieve a municipality’s goals.

Oakland has perhaps the most extensive history with cannabis regulation in California since Proposition 215 passed at the end of 1996. In 1998, the city first attempted to fill the legal vacuum caused by the vagueness of Proposition 215. While referencing medical cannabis supporting legislation reaching as far back as March 1996, Ordinance No. 12076 established chapter 8.42 (now found under chapter 8.46) in the Oakland Municipal Code. This chapter would be Oakland’s first set of regulations that would apply interstitially to proposition 215. 12076 was enacted with the goal of making medical cannabis accessible to qualified patients in Oakland, to prevent diversion to illegal markets, and to ensure that cannabis users in Oakland would not face prosecution. The ordinance then set out to achieve these goals in some interesting ways. To ensure that people would not face prosecution for possessing medical cannabis under state law, the ordinance made cannabis possession the lowest priority for Oakland law enforcement. The ordinance also established a single agency to regulate the distribution of medical cannabis in Oakland. This agency was to implement the marijuana distribution plan the city set out in what is now chapter 8.46 of the municipal code. Perhaps not willing to take on the burden themselves, the city designated the Patient ID Center, known as the Oakland Cannabis Buyers Cooperative at the time, to administer the city’s distribution plan.

The Oakland Cannabis Buyers Cooperative (hereafter “OCBC”) was a dispensary whose mission statement sounds relatively typical. It wanted to provide safe access to cannabis to people with valid medical recommendations from their physicians. Like other dispensaries, the OCBC wanted to provide access to cannabis in a legal manner so as relieve people of the unintended ills of federal prohibition. They saw their legal channel of distribution as a way to help people avoid prosecution and the dangers of the black market. In line with its goals as a dispensary, OCBC took on the role of implementing the city of Oakland’s distribution plan. In line with its goal of ensuring that medical patients would not face prosecution for their medicine, OCBC would come to be in charge of an identification system that would allow for law enforcement to easily verify an individual’s patient status. As its current name, the Patient ID Center, would suggest, this system has proved to be largely successful. As can be evinced by changing their name from “Cannabis Buyers” to “Patient ID Center”, it was not long until this dispensary also became typical in not being able to provide safe access to medical cannabis.

Oakland presents a prime example of a municipality running into federal pre-emption conflicts. Soon after OCBC took charge of Oakland’s distribution plan, the federal government ordered a preliminary injunction that was eventually carried out in October of 1998. While police padlocked their doors and physically enforced the injunction, OCBC voluntarily cooperated after six days. Then, only eight days after that, the city of Oakland responded aggressively by invoking California Government code 8630 and declaring a public health emergency that would return power to provide access to medical cannabis to the city. Oakland’s struggle with the federal government would continue for years, with back and forth politics that touched on land use issues (like threatening land owners who leased their property to cannabis dispensaries with forfeiture). While I encourage my readers to look into the intense battle that has occurred between the federal and local governments, I raise what the federal government did next for purposes of showing the development of Oakland’s local regulation. I will continue to focus on the local land use regulatory issues the city of Oakland experienced throughout its medical cannabis social experiment.

Oakland took its next major step in medical cannabis regulation in 2004 by passing Ordinance number 12585, adding chapter 5.80 to the city’s municipal code. This chapter sets out a permitting system by which the city may award a medical cannabis dispensary the right to operate. While there are a multitude of provisions, it is interesting to note that there was only one provision regarding land use. The language of 5.80.020(d)(1) largely reflects the regulations that had already been set out in the then recently passed State Bill 420. This new chapter required dispensaries to be located at least 600 feet from sensitive areas like schools, parks, residential areas, among others, a looser regulation than the state’s requirement of a one-thousand-foot boundary. Also on the broader side are the zones in which this chapter allows dispensaries to be located. Whereas other municipalities specify different categories within which dispensaries may be located, this chapter of the Oakland municipal code simply requires that a dispensary be located within any type of industrial or commercial zone. This ordinance focused on regulating the cannabis industry through restricting the maximum number of dispensaries rather than rezoning.

Oakland residents also passed the landmark Measure Z in 2004. Measure Z primarily reemphasizes cannabis infractions as lowest priority, creates a committee to handle licensing and taxation, and establishes policies for enforcement. This monumental piece of legislation for Oakland does not make any changes to the broad ability for medical cannabis dispensaries to be licensed if they are, among other regulations, only located within a commercial and industrial zone. In noting this omission, I draw on a larger point. Many municipalities have similar, if not the same, goals of things like public health and safety. The city of Oakland has at least as many issues in these departments as any other municipalities, and yet it is interesting to note the way in which it approaches its solutions. Rather than adjusting relatively broad zoning and land use provisions, the city of Oakland looks to taxation, methods of licensing, and policies for enforcement to maximize the well-being of its residents who are now living with this new industry.

Years have passed since Oakland residents passed Measure Z, and the city has naturally had more legal developments and ordinances passed. These new developments and challenges, however, have largely been in the form of interactions with the federal government. For example, in 2012, the federal government sent letters to the owners of buildings who rented to dispensaries claiming that they would seize the owner’s property if they continued to allow businesses that operate in contravention to federal drug law. While this was more a federal pre-emption battle than an example of local land use regulation, this was an important chapter in Oakland’s medical marijuana experiment and touches upon a specific area of land use.

Oakland has been through a lot of changes and is progressive in its approaches to regulating medical marijuana. It maintains the same kind of goals all municipalities have for its residents like maintaining their health and safety. Rather than seeing this emerging industry as a threat, the language of the legislative intent describes medical marijuana as an opportunity to protect people’s rights, and to take an existing demand for a product or medicine, take it out of the hands of criminals and those who would do harm, and put it back in the hands of law-abiding citizens. Regardless of whether a municipality views medical marijuana as an opportunity or a scourge, there is a lot of room for creativity in how to maintain public health and safety. The choices, however, come with different effects and consequences. Rather than achieving its goals by altering zoning laws, Oakland chose to achieve these goals by developing regulatory schemes like a patient ID card system and a governing body to provide oversight. Admittedly, this creates an ever present issue of funding, especially since the taxes promised by Measure Z can only be accrued if and when California legalizes cannabis for recreational use. Nevertheless, Oakland does not seem concerned with medical marijuana reaching sensitive areas, even after loosening the state’s 1000 foot restriction to only 600 feet. As such, Oakland can be a lesson that there are various approaches that can help a municipality achieve its goals without harming its local businesses in the process.

Stay tuned for the conclusion of the battle of San Jose! I’ll be looking back to San Jose and apply the lessons we have learned by exploring the regulations implemented by other municipalities. After having looked at how other municipalities regulate land use for their medical cannabis industry, we can finally make an informed evaluation of San Jose’s newest medical cannabis ordinance.

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