Arbiter could decide fate of Tracy pot club

January 04, 2007

Jake Armstrong, The Record (Stockton)

TRACY - The fate of Tracy's medical marijuana dispensary remains up in the air after more than two hours of arguments and testimony Thursday.

However, the issue of whether the Valley Wellness Center Collective is in violation of city zoning laws could come to an abrupt end if an independent arbiter finds that only the property owner who leases to the club - and not the club itself - has the right to lodge an appeal of the city's order to close the business. The property owner has not objected to the city's order.

The arbiter, Jeanne Schechter, Merced's chief deputy city attorney, took the appeal under submission and will make a decision after next Friday.

Even then, the issue is likely far from settled. James Anthony, the club's attorney, has said he is prepared to seek a decision in San Joaquin County Superior Court if the club loses its appeal with the city.

The club, which since October has operated at 130 W. 11th St., appealed the city's Nov. 22 order to discontinue selling medical marijuana, since dispensaries are not addressed in the city's zoning code. Any-thing not specifically allowed in the zoning code is an illegal use unless it receives the blessing of the Planning Commission, city officials said.

The city has no laws banning medical marijuana dispensaries. The San Joaquin County District Attorney's Office considers them illegal, however.

But Anthony argued that state law - Proposition 215, passed in 1996, and a subsequent measure passed by the Legislature - considers marijuana a medicine, which makes the club no different from pharmacies or drugstores.

The club is simply dispensing a new drug, and pharmacies and drugstores are not required to seek the city's permission when they begin selling a new drug, Anthony argued.

He also said the club is legal under a portion of the zoning code that only bans merchants selling ice, fuel, animal feed or monuments and tombstones from the downtown zoning district the club falls under.

"It may be hybrid and unique. ... Nevertheless, it fits into those use categories," Anthony said.

Assistant City Attorney Dan Sodergren argued that a dispensary is a more unusual use than a pharmacy and must be addressed individually.

"One thing that is clear is that a medical marijuana collective is a unique use" and one the City Council and Planning Commission have yet to consider, Sodergren said.

The club could face a fine each day it remains in operation past the order to close Dec. 5. However, city officials have not decided if they will levy fines against the dispensary.

The Valley Wellness Center Collective serves about 200 patients in San Joaquin County, and a handful of them came to Thursday's hearing at City Hall to support the club.

"We really need this in Tracy," said Carl Hassell, a Tracy resident with degenerative arthritis and other painful ailments. "I don't wish anyone the pain I have to live with at 49" years old.

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



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