Judge says landlord can't evict Oakland pot shop

SAN FRANCISCO (AP) -- An Oakland medical marijuana dispensary that bills itself as the nation's largest has won the first round in its fight to stay open amid a federal crackdown.

A California judge ruled last week that Harborside Health Center's landlord can't evict the pot shop even though the U.S. attorney for Northern California is threatening to seize her property.

Superior Court Judge Evelio Grillo says Ana Chretien's claim that Harborside must go because it is engaging in illegal activity does not hold up because state law allows nonprofits to distribute medical marijuana.

Grillo said in his ruling that he sympathized with Chretien's "difficult position."

Harborside is a spa-like fixture on Oakland's waterfront with close to 100,000 registered customers and 84 full-time employees that offers an average of 30 varieties of medical marijuana every day. With $22 million in annual sales, it pays about $3 million in federal, state and local taxes annually, according to Executive Director Steve DeAngelo.

U.S. Attorney Melinda Haag threatened in July to seize the building Chretien has rented to the dispensary since 2006, as well as Harborside's sister shop in San Jose. She cited a federal law that "makes it unlawful to rent, lease, profit from or make available for use, with or without compensation, a place for the purpose of unlawfully manufacturing, storing, distributing or using a controlled substance, to wit, marijuana," as justification for going after the landlords.

A different California judge last month sided with the owner of the Concourse Business Center in San Jose, which also had sought an eviction order.

Harborside lawyer Henry Wykowski said Grillo's decision was nonetheless ground-breaking.

"Up until now, there have been court of appeals cases saying cities or government entitles cannot enforce federal law in state court," Wykowski said. "Any landlord that tries to evict a medical cannabis dispensary in California will not be able to do it now in state court."

The dispensary's victory in Oakland may be short-lived, though, despite the fact that the city has filed its own lawsuit to keep Harborside open.

Chretien has asked a federal judge to order Harborside to stop growing and selling marijuana in her building. If granted, her request would effectively put the dispensary out of business. A hearing is scheduled for Dec. 20.

She also is considering whether to appeal Grillo's decision, her lawyer, Kenneth Katzoff said Monday.

"As demonstrated by Judge Grillo's lengthy order, this is an area of California law without clear precedent," Katzoff said.

Since California's four federal prosecutors launched a coordinated crackdown on the state's medical marijuana industry last year by threatening landlords with property forfeiture actions, hundreds of pots shop have gone out of business.