Pubdate: Tue, 11 Dec 2012
Source: San Francisco Chronicle (CA)
Copyright: 2012 Hearst Communications Inc.
Contact: http://www.sfgate.com/chronicle/submissions/#1
Website: http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko
Page: C1

MAGISTRATE TO WEIGH BATTLE OVER POT CLUB

City's Disagreement With Federal Government Centers on How Deadline 
for Forfeiting Property Is Determined

The city of Oakland, fighting the federal government's attempt to 
shut down the nation's largest medical marijuana dispensary, is 
accusing the government of trying to win the case by bullying the 
building owner into evicting the pot club under the threat of losing 
her property.

Justice Department lawyers counter that Oakland has no legitimate 
voice in the case and is only trying to protect the "windfall" it 
collects in taxes from the "illegal marijuana distribution 
activities" at Harborside Health Center.

The dispute, scheduled to be argued Dec. 20 before a federal 
magistrate in San Francisco, may turn on whether Harborside's alleged 
lawbreaking is more like the operations of an illegal bingo game or a 
cigar smuggler. Those were the subjects of two previous cases that 
reached opposite conclusions about whether the legal deadline for 
forfeiture is measured from the time the government first learns of 
lawbreaking.

Harborside, located along the Oakland Estuary at 1840 Embarcadero, 
supplies marijuana to 108,000 patients. U.S. Attorney Melinda Haag 
filed a suit in July seeking to shutter the dispensary and force the 
property owner to forfeit the building to the government because it 
houses operations that violate federal law.

The dispensary opposes the suit and remains in operation. But the 
property owner, businesswoman Ana Chretien - who says she was unaware 
until recently that Harborside was breaking federal law - filed 
motions last month to prohibit illegal activities in the building, 
which would put the dispensary out of business.

An Alameda County judge refused to order a shutdown Nov. 30, saying a 
state court couldn't base an eviction on federal law. There's no such 
obstacle in federal court, where U.S. Magistrate Maria-Elena James is 
scheduled to hear Chretien's motion next week.

Oakland has cried foul, saying the government pressured Chretien to 
seek eviction to short-circuit the city's separate lawsuit over 
Harborside. That suit, filed in October, argues that U.S. authorities 
waited too long to try to seize the property. The federal statute of 
limitations is five years, but the dispensary openly started 
distributing marijuana six years ago.

Using 'back door'

To support their claim of government coercion, city lawyers cited 
Chretien's statement in court papers that the government wants her 
"to take all expeditious steps to halt Harborside's activities" and 
that she fears loss of her property unless the dispensary is evicted.

The government, Oakland attorney Cedric Chao alleged, "is attempting 
to do through the back door ... what it is unable to do directly 
through its illegal forfeiture action." At the Dec. 20 hearing, Chao 
will ask James to put Chretien's eviction request on hold until she 
rules on the city's suit.

Federal government lawyers replied last week that Oakland has no 
property rights in Harborside and no right to interfere with the 
forfeiture suit or the eviction proceedings.

They also disputed the city's claim that the government had five 
years to seek eviction from the time the dispensary started operating.

Statute of limitations

That five-year clock starts running anew with each illegal drug sale, 
said government lawyers, who cited a ruling in 2010 by a federal 
appeals court in Chicago in the case of an illegal smuggler of Cuban 
cigars. Although federal authorities were aware of the smuggling 
operation more than five years before they sought forfeiture of his 
home, the court said, they acted legally within five years of the 
date they first seized cigars at the home.

But Chao said Monday that Harborside is more like the case of the 
illegal Tennessee bingo games the government started investigating in 
1988 and shut down in 1994, seizing more than $500,000. A federal 
appeals court in Cincinnati overturned the seizure in 1998, saying 
the five-year timetable had started when federal agents first learned 
of the illegal operation.
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MAP posted-by: Jay Bergstrom