Jim Finnel
Fallen Cannabis Warrior & Ex News Moderator
When it comes to keeping score on the Dana Point vs. pot shops battle, which stretches back 18 months with parts of the fight taking place in the California Supreme Court, it seems the city has scored a point.
On Friday, a hearing official indicated he planned to deny appeals by two dispensaries that the city red-tagged Jan. 24 due to a variety of code violations.
On Feb. 4, the dispensaries' lawyers argued in a six-hour long hearing that the city shut down the pot shops without inspections, which violated rights to due process. However, the city says it had enough evidence of code violations—from electrical wiring to certificate of occupancy issues—to close the shops without stepping inside.
Retired Judge Jim Smith, who acted as a hearing officer, said he was more concerned about whether code violations were actually committed than other issues orbiting the closures.
"The judge has indicated a ruling against (the dispensaries). Now we're just getting the details in order," said City Attorney Patrick Munoz.
The city has offered the dispensaries the opportunity to reopen if they file new permit and certificate-of-occupancy applications for approval by city staff. The city code does not mention medical marijuana in its zoning rules, and by omission, the drug's sale is technically banned. However, Munoz said the zoning issue would be "taken off the table," as it is being decided in court.
But the offer may seem sweeter than it actually is once the details are examined. A typical permit application takes up to 30 days to review. The city and dispensaries are scheduled to meet in an Orange County courtroom on Feb. 15 regarding a nuisance lawsuit the city has filed against the dispensaries. If a judge sides with the city next week and then the dispensaries file for an appeal, what happens to their temporary ability to open?
Details like that and questions regarding other permit and legal issues are still being debated, said Jeffrey Schwartz, an attorney for Beach Cities Collective, one of the closed dispensaries. Speaking hypothetically, if the city wins the Feb. 15 case and the dispensaries appeal, the city would likely still cancel the temporary approvals, Munoz said.
Beach Cities and another dispensary, Holistic Health, both have separate lawsuits filed against the city regarding the closures. The dispensaries have indicated they plan to move forward with the lawsuits in spite of Friday's decision.
"The city is still in violation of their due process rights. That isn't going away," Schwartz said.
Holistic Health and Beach Cities have been closed for about three weeks now. A third dispensary, Point Alternative Care, was also shut down, but did not appeal the decision at the hearing.
Munoz has said officials did not need to enter the dispensaries to know they were violating city rules. A building official and Munoz said they discovered in court documents that dispensary owners had admitted to code violations.
Beach Cities lacked a certificate of occupancy and used an unlicensed contractor to build an interior wall without proper permits. Holistic Health had safety issues related to electrical wiring and to locked doors that prevented easy entrance in case of emergency. Owners admitted to some of the violations at last week's hearing.
Both dispensaries said they offered the city an opportunity to inspect their buildings before the closures to put to rest accusations that they considered false. Holistic Health did not receive a response. Beach Cities could not receive an inspection without a certificate of occupancy, said Mark Sutton, a building official.
The shop owners and attorneys drew distinctions between minor and major code violations, arguing that red-tagging and shutting off power are steps typically taken in an emergency. But Smith said, to him the issue was clear: "It's either a violation or it's not."
NOT FIRST SHUTDOWN
This isn't the first time Dana Point has attempted to close at least one of the dispensaries. Three months ago, the city slapped a temporary restraining order on Holistic Health, which was later halted by an appeals court judge.
Dana Point at one point had up to six dispensaries, but that number has been whittled down to three due to legal efforts by the city, which has described some as fronts for illegal activity. The city has spent about $370,000 on legal costs relating to medical marijuana.
One past shutdown involved law enforcement actions resulting in multiple arrests and police seizing $800,000 in cash, hundreds of pounds of marijuana and various weapons. Another, Point Alternative Care, was searched by police on suspicion of illegal activity before being red-tagged last month.
However, some owners have said medical marijuana has not been a money-making business like the city has portrayed. Garrison Williams, owner of Holistic Health, said last year that his tax filings showed a $35,000 loss. David Lambert, Beach Cities owner, said he found it frustrating to be lumped in the same box as other dispensaries not following the law.
PAST LAWSUITS
The city has filed lawsuits in Orange County Superior Court intended to close the dispensaries. Last year the dispensaries won a California Supreme Court case, allowing them to appeal a lower court's decision that granted the city the right to subpoena a variety of records, including financial documents and clients' identities.
The day Dana Point red-tagged the dispensaries, Munoz announced the city was withdrawing its call for documents. He said the timing was coincidental and the city may attempt to get the records using another route known as the discovery process, when two sides must share information relating to evidence.
+ Thanks to greengo840 for submitting this article
NewsHawk: Jim Behr: 420 MAGAZINE
Source: ocregister.com
Author: BRITTANY LEVINE
Copyright: 2011 Orange County Register Communications
Contact: Contacting the Orange County Register
Website: Official denies Dana Point pot shops' appeals
On Friday, a hearing official indicated he planned to deny appeals by two dispensaries that the city red-tagged Jan. 24 due to a variety of code violations.
On Feb. 4, the dispensaries' lawyers argued in a six-hour long hearing that the city shut down the pot shops without inspections, which violated rights to due process. However, the city says it had enough evidence of code violations—from electrical wiring to certificate of occupancy issues—to close the shops without stepping inside.
Retired Judge Jim Smith, who acted as a hearing officer, said he was more concerned about whether code violations were actually committed than other issues orbiting the closures.
"The judge has indicated a ruling against (the dispensaries). Now we're just getting the details in order," said City Attorney Patrick Munoz.
The city has offered the dispensaries the opportunity to reopen if they file new permit and certificate-of-occupancy applications for approval by city staff. The city code does not mention medical marijuana in its zoning rules, and by omission, the drug's sale is technically banned. However, Munoz said the zoning issue would be "taken off the table," as it is being decided in court.
But the offer may seem sweeter than it actually is once the details are examined. A typical permit application takes up to 30 days to review. The city and dispensaries are scheduled to meet in an Orange County courtroom on Feb. 15 regarding a nuisance lawsuit the city has filed against the dispensaries. If a judge sides with the city next week and then the dispensaries file for an appeal, what happens to their temporary ability to open?
Details like that and questions regarding other permit and legal issues are still being debated, said Jeffrey Schwartz, an attorney for Beach Cities Collective, one of the closed dispensaries. Speaking hypothetically, if the city wins the Feb. 15 case and the dispensaries appeal, the city would likely still cancel the temporary approvals, Munoz said.
Beach Cities and another dispensary, Holistic Health, both have separate lawsuits filed against the city regarding the closures. The dispensaries have indicated they plan to move forward with the lawsuits in spite of Friday's decision.
"The city is still in violation of their due process rights. That isn't going away," Schwartz said.
Holistic Health and Beach Cities have been closed for about three weeks now. A third dispensary, Point Alternative Care, was also shut down, but did not appeal the decision at the hearing.
Munoz has said officials did not need to enter the dispensaries to know they were violating city rules. A building official and Munoz said they discovered in court documents that dispensary owners had admitted to code violations.
Beach Cities lacked a certificate of occupancy and used an unlicensed contractor to build an interior wall without proper permits. Holistic Health had safety issues related to electrical wiring and to locked doors that prevented easy entrance in case of emergency. Owners admitted to some of the violations at last week's hearing.
Both dispensaries said they offered the city an opportunity to inspect their buildings before the closures to put to rest accusations that they considered false. Holistic Health did not receive a response. Beach Cities could not receive an inspection without a certificate of occupancy, said Mark Sutton, a building official.
The shop owners and attorneys drew distinctions between minor and major code violations, arguing that red-tagging and shutting off power are steps typically taken in an emergency. But Smith said, to him the issue was clear: "It's either a violation or it's not."
NOT FIRST SHUTDOWN
This isn't the first time Dana Point has attempted to close at least one of the dispensaries. Three months ago, the city slapped a temporary restraining order on Holistic Health, which was later halted by an appeals court judge.
Dana Point at one point had up to six dispensaries, but that number has been whittled down to three due to legal efforts by the city, which has described some as fronts for illegal activity. The city has spent about $370,000 on legal costs relating to medical marijuana.
One past shutdown involved law enforcement actions resulting in multiple arrests and police seizing $800,000 in cash, hundreds of pounds of marijuana and various weapons. Another, Point Alternative Care, was searched by police on suspicion of illegal activity before being red-tagged last month.
However, some owners have said medical marijuana has not been a money-making business like the city has portrayed. Garrison Williams, owner of Holistic Health, said last year that his tax filings showed a $35,000 loss. David Lambert, Beach Cities owner, said he found it frustrating to be lumped in the same box as other dispensaries not following the law.
PAST LAWSUITS
The city has filed lawsuits in Orange County Superior Court intended to close the dispensaries. Last year the dispensaries won a California Supreme Court case, allowing them to appeal a lower court's decision that granted the city the right to subpoena a variety of records, including financial documents and clients' identities.
The day Dana Point red-tagged the dispensaries, Munoz announced the city was withdrawing its call for documents. He said the timing was coincidental and the city may attempt to get the records using another route known as the discovery process, when two sides must share information relating to evidence.
+ Thanks to greengo840 for submitting this article
NewsHawk: Jim Behr: 420 MAGAZINE
Source: ocregister.com
Author: BRITTANY LEVINE
Copyright: 2011 Orange County Register Communications
Contact: Contacting the Orange County Register
Website: Official denies Dana Point pot shops' appeals
