City's ban on medical marijuana shops headed for court
April 18, 2011
Ray Huard, North County Times
A court showdown is looming between the city of Oceanside and two marijuana dispensaries it's trying to close down.
City officials in March filed a lawsuit in Vista Superior Court against Abaca Medical Collective on South Coast Highway and Green Ocean Collective on South El Camino Real asking a judge to issue an injunction that would put the dispensaries out of business.
City Attorney John Mullen, in court papers, said the dispensaries violate the city's moratorium on such businesses, violate zoning ordinances and are operating without a required city business license.
Abaca on Friday counterattacked, filing a class action lawsuit on behalf of its operators and its up to 2,500 members.
The group's lawyer, Philip Ganong of Bakersfield, asked for a jury trial and is seeking damages of up to $25,000 for each of Abaca's members and for Abaca's operators, whom he said were illegally arrested in a May 2010 raid on the dispensary.
In the class action lawsuit, Ganong said the city ----- in trying to close the dispensaries ---- is violating the 1996 state law that legalized the medical use of marijuana and subsequent measures adopted to implement it. He said the city also improperly seized medical records of Abaca members and violated the civil rights of its operators.
A hearing on the city's request for an injunction is set for July 1, Mullen said.
Meanwhile, an advocacy group for medical marijuana, the San Diego Chapter of Americans For Safe Access, is organizing a "stop the ban" drive in Oceanside, said Eugene Davidovich, a group coordinator.
"They're attempting to subvert Proposition 215, the Compassionate Use Act," Davidovich said of the city's actions against Abaca and Green Ocean. "They have not moved toward any kind of reasonable regulations. In fact, everything seems to point toward an outright ban on collective (marijuana) cultivation, cooperative cultivation."
Davidovich said for now the drive is limited to asking residents to write city officials urging them to allow dispensaries to operate in Oceanside. But he said his group may ramp up its efforts and go directly to city voters with a ballot initiative on the matter.
"We advocate for legislation for strict rules for folks to follow," Davidovich said.
Oceanside has had a moratorium on marijuana dispensaries since May 2009. The city also enacted zoning laws that prevent dispensaries from opening unless they get a special zoning change..
Despite those measures, Abaca and Green Ocean have been open for business for several months, Mullen said in the lawsuit, which is set for City Council review in a closed session Wednesday.
Abaca has been operating at 1935 S. Coast Highway since April 2010, Mullen wrote in court papers.
Ganong, in court papers, said everyone who gets marijuana through Abaca must have a physician's recommendation.
Mullen and Ganong said Abaca applied for a business license but the request was denied in part because of the moratorium. Ganong in his lawsuit contended that the denial was improper because Abaca met state requirements for operating a dispensary.
In July 2010, the city filed a criminal complaint against one of Abaca's operators, which was reduced to an infraction after Abaca apparently shut down, Mullen wrote.
Abaca reopened around November 2010 and city officials learned in December that it was back in business.
During a February inspection of Abaca, a code enforcement officer found a variety of marijuana products for sale, including plants, lollipops, brownies and candy, Mullen wrote. The inspector reported that marijuana was advertised for sale at $20 per gram.
Code enforcement officers learned of Green Ocean's dispensary at 2101 S. El Camino Real in February, according to court papers.
An inspector found marijuana products including buds, candy and lollipops, according to court papers. The business offered first time patients a free gram of marijuana with a $50 donation, the inspector reported.