At hearing, supes say Purple Cross is a problem that needs to be
abated
The San Benito County Board of Supervisors on Aug. 19 officially
declared the Purple Cross Rx medical marijuana dispensary on Bolsa
Road to be a public nuisance that needs to be abated.
By a vote of 4-1 after an administrative hearing, the board
directed its staff to bring a resolution to a future meeting
mandating that
”
the nuisance be abated by the county at the expense of the owner
and/or the occupier.
”
Supervisor Jaime De La Cruz was the lone opposing vote.
At hearing, supes say Purple Cross is a problem that needs to be abated
The San Benito County Board of Supervisors on Aug. 19 officially declared the Purple Cross Rx medical marijuana dispensary on Bolsa Road to be a public nuisance that needs to be abated.
By a vote of 4-1 after an administrative hearing, the board directed its staff to bring a resolution to a future meeting mandating that “the nuisance be abated by the county at the expense of the owner and/or the occupier.” Supervisor Jaime De La Cruz was the lone opposing vote.
The decision will likely trigger more legal maneuvers from Purple Cross, whose attorney said he had hoped to avoid that and that it could cost the county $200,000 to $500,000 to fight the case.
In a more than two-hour hearing, the county reiterated its case that says Purple Cross is operating in an area zoned agriculturally productive, meaning retail business is not allowed there without a permit.
Jim Roberts, the attorney for Purple Cross director Scott McPhail, contended that the dispensary is, in fact, a seasonal agricultural operation because it grows and sells marijuana on-site and different types of marijuana are grown at different times of the year.
He spent much of the morning questioning witnesses for the county, including code enforcement officer Stacy Watson, assistant planning director Byron Turner, and UNET officer Michael Moll, who served a search warrant on the dispensary in April.
Turner said that it is the opinion of the planning department that Purple Cross is a commercial/retail business that is not allowed to operate in an agriculturally-productive zone. He also contended that it does not meet the definition of a seasonal stand, which does not require special permits.
Watson, in recounting the history of non-compliance notices sent to McPhail and the property’s owner, Stan Smith, said she “is not going to deny there is some sort of agriculture occurring on site.” However, she said it is not a seasonal operation because “there has been a continual operation since January. It clearly does not meet the definition of what seasonal is.”
She also pointed out that Purple Cross had been selling packaged products such as topical creams and lip balm as well as food items that were not grown on site.
Asked by Roberts if she had been inside the Purple Cross building at 1980 Bolsa Rd., Watson said she entered the lobby on July 6 to serve McPhail with notice of the administrative hearing. He asked how far she went inside the building, what she observed and what was in the refrigerator she remembers seeing.
The detailed questioning prompted Board Chairwoman Margie Barrios to point out that the hearing was “not a court of law” and she asked Roberts why he was being so particular with his inquiries.
“I represent a client who doesn’t believe he’s in violation” of county rules, Roberts said. “I’d like to know what the evidence is that there are violations of the zoning laws of San Benito County.”
Supervisor Anthony Botelho told Roberts that “it appears to us you are trying to do a deposition. We know what’s going on out there.”
At that point, the board took a break so it could meet in closed session with county counsel Matthew Granger. When the hearing resumed, Roberts asked Watson if she had been back to Purple Cross to see if it was in compliance since serving notice of the hearing in July.
“I have not,” she said.
Roberts then presented the board with what he termed a “brochure” that included information on local fruit stands such as Swank Farms and Bertuccio Farms. He also mentioned Botelho’s fruit stand and B&R Farms, all of which sell agricultural products grown on site as well as ancillary products such as packaged food, beverages and gift items.
Watson noted that those businesses have permits, which Purple Cross does not.
Roberts then asked Watson if the dispensary sells different strains of cannabis throughout the year, trying to make the point that it is indeed a seasonal operation.
“I guess,” she replied.
If the ancillary items not produced on site had been removed since the July notice of abatement, Roberts asked, would there no longer be a violation?
“Correct,” Watson replied.
Roberts then asked again if she had been back there since July, to which she acknowledged she has no personal knowledge of what’s inside the Purple Cross building. He also asked Turner if he had been inside the dispensary, which he said he had not.
Assistant County Counsel Barbara Thompson asked Watson if Purple Cross had contacted the county to have the alleged violation corrections corroborated, to which Watson said it had not. She also said the hearing only would have been cancelled if the violations had been corrected within 10 days of the notice.
The next person to testify was Deputy Sheriff Michael Moll, who works for the Unified Narcotics Enforcement Team (UNET). In April, he led a raid on Purple Cross after two undercover agents from Santa Clara County obtained medical marijuana cards so they could make purchases at the dispensary.
Moll noted that the person at the front desk couldn’t verify the cards, but said “it’s good enough” and returned the cards to the officers and sold them marijuana.
“Neither of the undercover officers were asked what kind of ailment they have,” he said.
UNET confiscated more than 1,600 grams of processed marijuana, 59 grams of hash and 135 immature pot plants during its raid. It also took receipt books that noted nearly $94,000 in sales, mostly from January through April, as well as a receipt book that noted more than $8,300 in payments from Purple Cross to vendors.
During that time, McPhail was also stopped by deputies and his house was raided. No charges have been filed as a result of the raid, Roberts pointed out.
McPhail took the stand late in the morning, testifying that Purple Cross now sells nothing other than smokable cannabis at its Bolsa Road site and that it stopped selling the other items after being served with the administrative hearing notice. He also said under questioning from Roberts that the dispensary’s website and Facebook accounts are no longer being used and that it has never made deliveries from the site since opening there the day after Christmas 2010.
In closing comments, Thompson said Purple Cross has never sought a conditional use permit for its operation and that she recommended the board approve a resolution mandating that the nuisance be abated.
Roberts closed by saying that “there is no doubt that the growing of marijuana is agriculture” and that it is a seasonal product, which therefore should be allowed to be sold in the county. He said Purple Cross is being targeted because it sells marijuana and added that “it’s not our job to determine who qualifies” for a medical marijuana card – that is up to medical providers.
He also encouraged the county not to disregard California laws allowing medical marijuana use by pointing to more restricting federal rules.
“My client intends to be a good neighbor,” he said, noting that McPhail emailed Sheriff’s Deputy David Zander before he opened the Bolsa Road dispensary and indicated that he was willing to cooperate with law enforcement from the start.
Other than the UNET action, there has been no other law enforcement action at the site, Roberts contended.
In a separate action last week, McPhails’ attorneys had an eviction notice by the landlord Smith quashed in the local courts, meaning Purple Cross can remain open for now.
