San Benito County’s latest effort to close down medical marijuana dispensary Purple Cross went up in smoke last month – at least for now – when a judge recently denied a request for a preliminary injunction that would have forced the controversial nonprofit to close immediately.
The court’s decision is not final, however, and a status conference involving attorneys for both sides next month should determine whether the matter will move forward to trial.
The San Benito County Board of Supervisors last August held an administrative hearing and officially declared the Bolsa Road dispensary to be a public nuisance that needs to be abated. During the two-hour hearing, the county made its case that Purple Cross is operating in an area zoned as agriculturally productive, meaning retail business is not allowed there without a permit.
Jim Roberts, an attorney representing Purple Cross director Scott McPhail, said the dispensary is a seasonal agricultural operation because it grows and sells marijuana on site, with different varieties coming into season throughout the year.
Derek Cole, an attorney for the county, said the court “felt there needed to be a more thorough record” from the administrative hearing and “the issues are potentially complex.”
“The county is preparing a full record of its proceedings before the board of supervisors,” he said. “The court will review whether the county’s nuisance abatement proceedings were supported by the facts and whether the county made adequate findings.”
If a judge rules in the county’s favor after the next round of arguments, Cole said the county “will ask a judge to enter a permanent injunction to ask Purple Cross to shut down.”
If the county’s request is denied, Cole said “it’s a little unclear.”
“It could be the judge wants the county to correct some procedural error – which the county would do – then the injunction could be granted,” he said. “There are arguments that the medical marijuana community makes that state law prohibits cities and counties from regulating dispensaries. If the state supreme court rules that cities and counties don’t have authority over medical marijuana dispensaries, that could change things radically.”
The state court is considering such a case, with a decision expected no sooner than this summer.
“I can’t tell you what the county would do until we get a ruling,” Cole said. “We’d have to evaluate the ruling and it would be a Board of Supervisors’ decision from then.”
Dispensary served properly?
Roberts, the Purple Cross attorney, claims the county never properly served the dispensary or its landlord with the decision from the administrative hearing, which he says invalidates the request for an injunction.
“The principal issue all along is whether Purple Cross is zoned or not (for seasonal agricultural use),” he said. “Our position is that it is zoned. The county has made various arguments that have been shifting over a period of time. Originally they said marijuana is not produce; they seemed to have abandoned that argument. The next one was that it isn’t seasonal. They admit that if you have different kinds of apples, you can have different seasonal cycles. They haven’t acknowledged that it’s true for cannabis. Their arguments seem to shift.”
“The one thing that is clear,” Roberts added, “is that they don’t want Purple Cross in the county.”
The attorney claims the public is “tired of having their public and police resources diverted to cannabis when they know there are more important issues.”
Roberts said it is the position of medical marijuana collectives and dispensaries that they are providing cannabis “in a lawful way.”
“The current status, in terms of litigation with municipalities, is from a day that’s come and gone,” he said. “They are not reading their public well. Politicians are reading the public opinion from two or three decades ago. As a result, they following the NIMBY (not in my backyard) policy of let’s not do it here. We’re surprised the politicians haven’t read the tea leaves.”
