Oceanside sues to close two pot dispensaries

April 14, 2011

Aaron Burgin, San Diego Union-Tribune

The city of Oceanside is not only moving to shut down two medical marijuana dispensaries that opened in recent months, but has taken steps to permanently ban all dispensaries in the city even after a two-year moratorium expires in May.

According to documents filed with the San Diego County Superior Court in March, City Attorney John Mullen is seeking a permanent injunction against Green Ocean Collective on South El Camino Real, and Abaca Medical Collective on South Coast Highway.

Green Ocean operates out of a nondescript two-story office complex near El Camino Real and Fire Mountain Road, while Abaca is in a storefront near Coast Highway and West Vista Way.

The City Council will discuss the lawsuits in closed session at Wednesday’s meeting.

In discussing the issue of the city’s two-year emergency moratorium on dispensaries, which expires May 13, Mullen revealed that the city in January 2010 effectively banned dispensaries — and other businesses not spelled out in the city’s code — with a subtle change to a section of its zoning ordinance.

The City Council adopted the change when it approved an ordinance regulating minidorms. The change was made to Article 4, Section 420, which previously said that a new land use could be added to the city ordinance with an amendment. It now states that those uses are prohibited, but may be incorporated into the ordinance with an amendment.

“It’s subtle, but what it basically means is that if it’s not spelled out as a permitted use, then it is prohibited,” Mullen said. “That includes medical marijuana dispensaries.”

Dispensary owners would have to apply for the amendment to add the use to the city’s code, at which point it would be subject to a conditional-use permit, which gives the city Planning Commission — and in the case of an appeal, the City Council — control over the regulations dispensaries would have to abide by.

Councilman Jerry Kern said that medical marijuana advocates would have to clear a high threshold to convince him, and possibly his colleagues, that dispensaries should be allowed in Oceanside.

“I don’t feel the citizens are fully on board with these things,” Kern said. “Right now, we aren’t going to create any regulations, but once we get down the road and have a couple of applications, we are going to have to make a decision.”

The debate over medical marijuana dispensaries in the state dates back to 1996, when Californians voted to legalize marijuana for medicinal purposes. A number of cities have banned them on the basis that the use of medical marijuana still violates federal regulations, but few cities took steps to regulate them.

In Oceanside, the council in 2009 adopted its moratorium at a time when several cities, concerned with the potential that dispensaries could proliferate throughout the region, also adopted similar bans.

Mullen would not comment on the lawsuit, but according to court records, the city has been grappling with at least one of the dispensaries since April 2010, when city code enforcement officers learned that Abaca was operating in the South Coast Highway storefront.

According to court documents, the owners of Abaca told code enforcement officers that the collective has 2,000 members.

Following a citizen’s complaint filed in June 2010, the city cited the property owner, John Charles Chancellor Madison and ordered him to shut down and apply for a business license. When the city denied the license due to the moratorium, Madison continued operating the dispensary, but closed it in July after the city filed a misdemeanor complaint, later reduced to an infraction.

City officials, however, learned it had reopened in December.

Meanwhile, the city also learned about Green Ocean in February after receiving a complaint. The owner, Tom Huynh, told code enforcement officers Feb. 11 that the dispensary had opened two months earlier.

In both suits, the city alleges that the businesses, because they are operating without licenses and against city regulations, are considered a public nuisance. In addition to the injunction, the city is seeking to recoup inspection, investigative, enforcement, abatement and legal fees, which could be thousands of dollars.

Representatives with both dispensaries declined to comment, but medical marijuana activists said the lawsuits were a signal that the city “is on a clear path to ban collectives.”

“It was the path they were on when they enacted the moratorium,” said Eugene Davidovich, a coordinator for the San Diego chapter of Americans for Safe Access, which promotes safe and legal access to medical marijuana. “Since then, we have tried to talk to them about setting up regulations and sent them samples of regulations that have been adopted in other places, and they did not want to listen to that.”

Davidovich said he and other activists are quickly organizing a “Stop the Oceanside Ban” effort akin to movements in San Diego and Imperial Beach, cities that recently dealt with regulating dispensaries.

Oceanside’s actions, Davidovich said, run counter to Proposition 215, the 1996 measure.

“This is just another attempt to subvert the will of voters and overturn state law,” said Davidovich, a Gulf War veteran and self-described “cannabis patient.” “They have taken the position of ‘not in my city,’ which is a very irresponsible position to take. It goes against the most vulnerable in their community. This law is for the sick and dying.”

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