The inevitable courtroom showdown between San Benito County and medical marijuana dispensary Purple Cross Rx is on the horizon, as county lawyers acknowledged this week that they will soon ask a judge to force the closure of the Bolsa Road nonprofit.
“We plan to file litigation soon; other than that I can’t comment,” said Assistant County Counsel Barbara Thompson. The goal, she said, is to “obtain an injunction to prohibit (Scott McPhail) from operating a business at that site.”
County supervisors previously approved spending $35,000 on litigation support for the case.
The planned court action is no surprise to McPhail, who said he and his lawyers have “been waiting for their next move so we can counter it. We anticipate that we’ll hear from them in the next couple of weeks.”
The county Board of Supervisors in August officially declared Purple Cross to be a public nuisance that needs to be abated at the expense of the owner and/or the occupier. The county maintains that the dispensary is operating in an area zoned agriculturally productive, meaning retail business is not allowed there without a permit.
Purple Cross lawyer Jim Roberts countered that the dispensary is, in fact, an agricultural operation because it grows and sells its marijuana on site and offers different types of marijuana throughout the year.
McPhail said by phone last week that he expected the county would seek a court injunction to force him out of business and that he is prepared to fight that action, which his lawyer said could cost the county as much as $500,000 in court costs.
“We’ll file papers back and halt that,” McPhail said. “If they would have had enough evidence to close us they would have already. We’ve been open for one year as of the day after Christmas. I’m sure if they could have closed us down by now they would have.”
McPhail said that he was “about one centimeter away from filing a huge lawsuit against the county for unlawful arrests and warrants. My landlord (Stan Smith) has had enough, too. We all know our rights now and we’re not going to be bullied around. They’re reaching for anything that can get me out of here, but we’re fully in compliance and if they had anything I would have been out of there already.”
County code enforcement staff has repeatedly served McPhail and Smith with notices of non-compliance that say the dispensary must close. Smith has even attempted to evict the business from the former machine shop on Highway 25 near the county jail, but McPhail’s attorneys have had those efforts quashed.
In April, the Unified Narcotics Enforcement Team (UNET) raided Purple Cross after two undercover agents purchased medical marijuana there. Officers confiscated more than 1,600 grams of processed marijuana, 59 grams of hash, 135 immature pot plants and receipt books. Around that time, McPhail was stopped by deputies while driving and his house was raided.
McPhail’s attorneys noted during a public hearing before the board of supervisors that no charges were filed as a result of the raid.
Purple Cross previously operated a dispensary in downtown Hollister, but vacated that location just before the city was prepared to go to court in an effort to force it out of business. McPhail then opened a dispensary in Los Banos, but later left after city and law enforcement officials said he was operating in violation of zoning laws there.
Just more than a year ago, McPhail opened the latest Purple Cross location at 1980 Bolsa Road, near Flynn Road.
“The reason I moved was that this location gives me my best chance of staying open,” McPhail said. “Even if we had to stop dispensing, this could still be our grow facility” and the business would offer delivery to its clients.
“But I see us not leaving,” he added. According to my attorneys, they say I’m pretty solid here with the San Benito County laws that are in place. We’re trying to figure out ways they’d accept us.”
McPhail said his attorney has drawn up – but they have not yet circulated – a petition to get an item on a countywide ballot that would allow for one dispensary to operate in the county “and allow me to give them 10 more percent on top of taxes to the county.”
“I presented (the idea) to some county supervisors and I haven’t heard back,” he said. “It sounds like a win-win, but they’d rather spend money to get me out.”
