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The City Council will likely not take any action to establish zoning policies that would limit marijuana cooperatives because of a recent Supreme Court ruling against “medical necessity” legal defenses. 

The council requested the report from City Manager Weldon Rucker on May 8, after some residents and medical marijuana patients raised concerns that there were no zoning policies governing the number or placement of cooperatives. The council asked for a report on the possibility of enacting a moratorium on new cooperatives until a zoning policy was in place. 

The council also requested Rucker study the possibility of Health and Human Services overseeing the cooperatives. Currently there is no city agency that oversees cooperative procedures and standards. 

The request for a zoning policy and oversight agency was the result of Berkeley’s medical marijuana ordinance approved in March. The ordinance allows doctor-approved patients to be in possession of 2.5 pounds of dried marijuana and as many as 10 marijuana plants. Cooperatives are allowed up to 50 plants and 12 pounds of dried marijuana. 

Once the ordinance was adopted, it became clear there were no guidelines for the planning and development department to determine where to locate cooperatives. Currently, there are four cooperatives operating in the city.  

Since the council requested the report, the Supreme Court ruled in the case of the United States v. the Oakland Cannabis Buyers’ Cooperative, that “medical necessity” is not an exception to federal drug laws. 

The 8-0 decision brought aspects of the state’s medical marijuana law, Proposition 215, and the city’s ordinance into question, according to the city manager’s information report. 

“This decision is likely to limit somewhat the city’s flexibility in devising a framework for ‘permitting’ medical marijuana collectives, even if they are in compliance with the recently-adopted ordinance establishing protocols for medical cannabis,” according to the report. 

Based on the ruling, Rucker is recommending the council not develop zoning laws and suggested the moratorium on new cooperatives until an official policy is adopted isn’t necessary because there are no pending applications. In addition, Rucker suggested Health and Human Services not be assigned oversight of the cooperatives because of the murkiness surrounding medical marijuana laws. 

“It is inadvisable for the city to assume responsibility over an activity that remains illegal,” the report reads.  

Fred Medrano, director of health and human services, said managing the marijuana cooperatives would result in a significant increase in workload to a already taxed department.  

In addition, he said his staff would likely be reluctant to take the job on.  

“Especially with the Supreme Court ruling, which makes [it] technically illegal,” he said. “It wouldn’t make sense for a city department to take a regulatory position.” 

If the council agrees with Rucker’s informational report there will likely be no change in the city’s current policy. No more applications for cooperatives would be approved but the existing four cooperatives would not be effected. 

Director of the Cannabis Buyers Club, Don Duncan, said he approved of Rucker’s report.  

“We had a couple of meetings and I felt the city manager was thoughtful and careful,” he said. “I don’t think there’s any need for more cooperatives. The current proposal is the right thing to do.”