Tracy pot club plans appeal

December 05, 2006

Jake Armstrong, Stockton Record

TRACY - Officials representing a medical marijuana dispensary intend to appeal a city-issued order to close, claiming the order only vaguely explains the legal reasons the nonprofit club cannot conduct business in an 11th Street storefront.

James Anthony, attorney for the Valley Wellness Center Collective, said the club is seeking an administrative hearing to fight an order from city code enforcers who claim medical marijuana dispensaries are prohibited because the city's zoning code does not specifically list the business as an approved use.

Just because the use does not exist in the code doesn't mean it is illegal, Anthony said.

"That's not my understanding of property rights under the Constitution," he said.

Assistant City Attorney Bill Sartor disagrees.

"That's exactly what our code says - that any use not listed is prohibited," Sartor said. "It's clearly a zoning issue."

Sartor said the administrative hearing would likely take place in a few weeks, probably in front of an independent attorney.

Valley Wellness Center Collective, which opened quietly at 130 W. 11th St. about a month ago, could face a fine each day it remains in operation, Sartor said. Fines could begin at $100 the first day and grow to $500 a day within a week, he said. However, city officials have not decided if they will levy fines against the dispensary.

The city also refunded the club's business license fee, claiming the license documents were not complete.

Anthony said the club will continue serving its roughly 200 patients while it awaits the hearing, even if that means incurring fines.

"We don't think we have to pay until there is a judgment," said Anthony, adding club officials are prepared to go to court if they are unsuccessful in winning the administrative appeal.

The city does not have any laws banning medical marijuana dispensaries from operating, though a similar zoning flap forced the closure of another dispensary that opened in downtown earlier this year.

Sartor said the zoning code gives city decision-makers the ability to identify common uses and assign restrictions to those that are uncommon, such as medical marijuana dispensaries. By limiting approved uses, the City Council or Planning Commission can require that a business meet certain conditions or restrictions, such as not operating near a school, he said.

Anthony said he believes the club is legally allowed to operate under voter-approved Proposition 215, which allows medical patients to obtain a doctor's recommendation for marijuana use, and the city can't use land-use law to subvert state law and shut the club down.

"As far as we're concerned, it's the city violating the law and not us," Anthony said.

Contact reporter Jake Armstrong at (209) 833-1141 or jarmstrong@recordnet.com



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