Purple Cross’s lawyers say county hasn’t provided enough
information to move forward
A hearing to determine whether the medical marijuana dispensary
Purple Cross Rx is a public nuisance and should be shut down was
delayed this week as Scott McPhail’s lawyer asked the Board of
Supervisors for a continuance
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to protect our client’s due process rights.
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Purple Cross’s lawyers say county hasn’t provided enough information to move forward
A hearing to determine whether the medical marijuana dispensary Purple Cross Rx is a public nuisance and should be shut down was delayed this week as Scott McPhail’s lawyer asked the Board of Supervisors for a continuance “to protect our client’s due process rights.”
Sharmi Shah said she has not yet received all the documents she requested from the county regarding the case, so the board granted her request to continue the hearing to Aug. 19 at 9 a.m. If the board directs the abatement, a civil injunction would be filed against the property owner and Purple Cross, requiring it to shut down.
Shah said after the meeting that she is requesting any documents showing that the county has sent notices to other businesses accused of operating in agricultural zones without permits.
“We want to see if they’re doing this just because this is a cannabis collective,” she said. “We’re hoping the Board of Supervisors is the impartial adjudicator of facts and we’re hoping the board will question the planning department’s motivation.”
Supervisors were set to conduct the administrative abatement hearing Tuesday afternoon after Planning Director Gary Armstrong laid out the county’s case against McPhail and Purple Cross.
At the heart of the matter is that the dispensary, which operates at 1980 Bolsa Road (Highway 25 near the county jail), is in an area zoned agricultural productive, meaning retail business is not allowed there without a permit.
“My opinion as the planning director is that the Purple Cross business is an un-permitted use in the agricultural productive district as it is a retail business,” Armstrong said, noting that “at no time” has anyone from the dispensary sought a permit from the planning department or the planning commission.
Even though the definition for agriculture is “relatively loose” and the cultivation of marijuana could be deemed agricultural, he said, “Purple Cross is in the commercial/retail sale of marijuana for profit,” which is contrary to its claim of being a nonprofit collective.
Armstrong noted that in addition to selling marijuana to holders of medical marijuana cards, Purple Cross is selling products such as ice cream, spiced apple bars and lip gloss, which he said “are definitely not products grown on the premises.”
In a written brief given to supervisors before the meeting, McPhail’s lawyers claim that “cannabis is, by all definitions, a crop that is harvested and/or a plant produced for the use of humans,” and therefore meets the definition of an agricultural product.
Susan Martin-Postigo, a former owner of the Bolsa Road property, told supervisors during the public comment period of the hearing that her father operated a machine shop at the location for nearly 35 years. They sought to have the property re-zoned but the fees and bureaucratic steps required were too much to overcome.
“If we would have known we could have conducted business without a permit (like Purple Cross) we would’ve never sold the property,” she said. “I was required to pull permits. Why wasn’t Purple Cross required to pull permits?”
Before supervisors ruled on her request for a continuance of the hearing, Shah said Purple Cross is a “nonprofit organization; a closed collective. It’s not a for-profit organization.”
At the hearing, the county was set to show that it has repeatedly notified Purple Cross and property owner Stan Smith that the dispensary is operating in violation of zoning laws and that the sale of marijuana “is a current and immediate threat to the public health, safety, and welfare, because such uses threaten to cause ‘secondary effects’ within the unincorporated area” of the county.
Mike Scalmanini, who said he is a lifelong resident of San Benito County, told the board it should consider the medical needs of “the full populace,” including those who have a difficult time traveling out of the county to get medical marijuana for their maladies. He also said that with regulation, control and taxation of dispensaries, “we can get much-needed revenue.”
Hollister resident Michael Thompson said that as a medical marijuana patient who has been “living in pain for most of my adult life” after a motorcycle accident. It is difficult for him to drive a long way to pick up his medication.
“We should have the ability to choose this in a safe environment,” he said, referring to Purple Cross’s San Benito County location.
Purple Cross originally operated in downtown Hollister, near the corner of Fourth and San Benito streets, before eventually moving out just before the city was set to take the dispensary to court and after fruitless efforts by the landlord to have the dispensary kicked out. McPhail then opened a Purple Cross location in a Los Banos building owned by former San Benito County Supervisor Richard Scagliotti, but vacated that premises after pressure from law enforcement and threats of fines.
Since the Bolsa Road site opened, the county has sent written notices of violation to Stan Smith, who in February said he began eviction proceedings against Purple Cross – much as McPhail’s landlord in Hollister had done. A hearing on that matter is set for Aug. 11 before Judge Harry Tobias.
Outside of the supervisors’ chambers on Tuesday, McPhail expressed confidence that he would prevail if the matter went to court – though he said he hopes it won’t get to that.
“If they deny us, we’ll file and appeal,” he said. “It would cost everybody so much money.”
Shah reiterated that she was hoping for an “impartial” hearing before the county.
“(McPhail) is not looking to violate the code as it’s written,” she said.
