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Watch Your Feet: A Pot Arrest Reminds Us That the Legality of Marijuana Depends on Where You're Standing 

Wednesday, Jan 21 2015
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On Feb. 7, 2014, 34-year-old Luther Smith allegedly sold an unknown amount of marijuana to an undercover officer of the California Department of Alcoholic Beverage Control. The transaction took place inside Gestalt Haus, the 16th Street beer 'n' brats bar where Smith worked as a doorman. He continued to sell for months to ABC undercover agents. An arrest wouldn't follow for nearly a year, while the ABC built its case against him and his employers. During that time Smith continued to work the door at Gestalt and several other bars in the city. In that time, pot laws continued to shift and Smith found himself in a legal gray area in which the severity of the crime varied depending on, simply, where he was standing. If he'd made the deal outside, the story could be very different.

In 2006, the city's Board of Supervisors decided adult marijuana offenses should be the police department's lowest priority. Some eight years later, it seems unlikely that SFPD would have batted an eye at a weed deal happening inside a Mission bar, much less mounted a four-month undercover operation, as the ABC did, hitting the bar at least seven times to score from the bouncer.

In fact, in early 2014, around the time the ABC was launching its campaign at Gestalt, the California Police Chiefs Association announced it had reversed its position on marijuana and would support a statewide cannabis industry. (Provided the new industry followed its suggested regulations, of course). Even the U.S. Department of Justice, previously dogged in its crackdown of Bay Area medical marijuana collectives, has backed off after Congress defunded its efforts to snuff out medical pot. Which pretty much leaves the ABC as the only agency in town with the drive to keep cracking down on the city's local weed dealers. And it will apparently do so the only way it can — by halting barroom pot deals.

But a bust like the one at Gestalt could do more damage to the bar's business than to any in-house dealer's. Despite the haze around local and state marijuana regulations and the near-legality of the Schedule I drug, Smith was unambiguously on the wrong side of the law here: Buying, selling, transporting, or even giving away marijuana is illegal in California, with the obvious exception of legally licensed dispensaries. Where the case gets gray again is that the punishment still varies widely from case to case.

While the ABC made the arrest on Smith, the agency does not have the power to press criminal charges — that's on the District Attorney's Office. A spokesman for DA George Gascón tells SF Weekly that Smith has been charged with seven felony counts of transportation, sale, and giving away of marijuana. At his arraignment, Smith pleaded not guilty and he is not due back in court until March, but each count carries a possible punishment ranging anywhere from diversionary probation to four years in prison.

If hypothetical dealers had been busted dealing weed outside the bar — and the ABC's jurisdiction — on 16th Street, on the other hand, SFPD could slap them with a maximum $100 fine for the offense, provided said dealers were holding or moving an ounce or less of weed at the time. (Cross the ounce barrier and one may find themselves looking again at a much stiffer two-year prison sentence.) It's not clear how much Smith had on him, but a smart street dealer might not cross that 1-ounce limit in order to avoid the possibility of serious jail time.

The ABC does, however, have the power to suspend or revoke the bar's type–41 beer and wine license, the largest source of revenue even for a place with killer vegan sausages. In this case, the ABC alleges the bar's management was aware that Smith was selling weed in the same vicinity as their indoor bike rack and vintage pinball machines, which gives the agency justification to pause lucrative booze sales. The bar is afforded due process, of course, and licensed businesses are given the opportunity to hire legal counsel and challenge the agency's findings in an administrative hearing, "just like a criminal court system," California ABC spokesman John Carr tells SF Weekly via email.

Administrative process accounts for the six-month period between the ABC's final weed run to Gestalt and Smith's arrest in November. For its part, the bar's management accepted the suggested penalty of a 30-day suspension followed by two years of last-strike probation, during which another simple violation could shutter the bar for good. For now, at least, the bar sits empty.

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Andrew M. Dalton

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