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Pot club stands fast in eviction
Hayward man who owns Newark's Kindcare digs in his heels

Angela Woodall Inside the Bay Area

Newark, CA Nov 14, 2006 -- As it turns out, just saying no isn't so easy when it comes to medical marijuana.

It's a lesson Newark officials are learning in their attempt to oust a medical marijuana dispensary on Central Avenue, exposing in the process the gap between state and federal law that some cities are struggling to navigate.

Both sides are stuck between federal law, which makes selling or possessing marijuana illegal, and California's law that allows it to be sold for medical uses.

It can be expensive and dangerous territory for the marijuana outlets.

Shane Carter, owner of the Newark outlet Kindcare Resource Center, has racked up thousands of dollars in legal bills and city fines, besides making himself vulnerable to federal busts.

Just because the state declines to prosecute cases involving marijuana "doesn't mean the (Drug Enforcement Administration) won't do it," Police Chief Ray Samuels said earlier this year.

Carter, a Hayward resident, said he is holding out because shutting down regulated medical cannabis outlets deprives seriously ill patients of safe and convenient access.

"I'd rather be here as long as I can to help than pack up," said Carter, who applied for a business permit to sell vitamins and food supplements.

Newark officials said they want legal businesses operating in the city, which Kindcare isnot under federal law.

"We want to make sure we're not contributing to the problem," City Manager John Becker said.

That is why the city has been trying to oust Kindcare since July, claiming that the outlet violates zoning codes.

The City Council also passed an ordinance requiring businesses in Newark to meet state and federal laws, indirectly targeting pot dispensaries.

Meanwhile, the landlord, Central Park Associates, is taking Carter to court to evict him, claiming that operating a cannabis outlet in the area — instead of selling "natural herbs and vitamins," as he claimed on his lease — is a breach of contract, according to court documents.

"They just don't want me there," said Carter, who acknowledged he moved the center to Newark after attempts to open a dispensary in Union City failed when the city banned them in May.

Cannabis outlets have been legal in California since 1996 with the passage of Proposition 215, which allowed doctor-approved medical use of marijuana. A state Senate bill passed in 2003 provided additional guidelines.

But a 2005 Supreme Court case affirmed federal statutes outlawing pot.

In turn, a number of cities have tried a variety of strategies to ban or limit the cannabis clubs.

Fremont took action in June to keep them out, citing federal law and public safety issues. Hayward, where Carter lives, limits the number of dispensaries operating in the city.

The unusual split between state and federal law has cities such as Newark "caught in the middle," Becker said.

Until there is a definitive ruling about which takes precedence, the rift will continue, he added.