Thursday, March 17, 2011

Superior Court Judge Allows Dispensary to Remain Open; Denies City of San Marcos Emergency Injunction

By Eugene Davidovich, San Diego ASA

SAN MARCOS – In a major victory for medical marijuana advocates across the state, San Diego Superior Court Judge Thomas Nugent on Thursday morning denied the City of San Marcos a Temporary Restraining Order (TRO) against Wellness Tree collective, allowing the medical marijuana dispensary to remain open.

In 2006, when the city adopted an ordinance prohibiting medical marijuana dispensaries from operating in all zones, they specifically instructed the business tax office not to issue permits for such use and have denied all applications since.

The TRO filed by the City Attorney’s Office on Thursday named not just the Wellness Tree Collective, but also individual directors, and the landlord, demanding emergency relief through a restraining order, a preliminary and permanent injunction, declaratory relief, and damages.

This blatant attempt to shut down the remaining access in that city is very much in line with their bias driven agenda to undermine state law on this issue and is clearly against the desire and will of the residents who overwhelmingly oppose the city’s ordinance and these actions against the dispensaries.

Representing the collective in court were attorneys John Murphy who argued against the restraining order and cited the City’s ordinance did not provide the ability for anyone to obtain a business license to operate a dispensary, making it an outright ban. Murphy who works closely with Anthony Curiale the lead attorney in the highly publicized Anaheim case was accompanied in court by Melissa Bobrow who represented the landlord of the property where the dispensary is located.

During Thursday’s hearing the City Attorney argued the dispensary was operating illegally because it failed to obtain a business license, Judge Nugent disagreed, he explained that he saw absolutely no emergency in this matter and denied the TRO as well as pointed out that even if the dispensary had applied for a business license, they would not have received one.

After the hearing Attorney John Murphy said “The ordinance in the City of San Marcos is fatal and it violates the very terms of the Compassionate Use Act and the associated Health and Safety Codes by banning a patient’s right to collectively cultivate anywhere in San Marcos”.

While the City of San Marcos claims the ban is simply their way of ‘regulating’ dispensaries; advocates, patients, and concerned citizens alike have called it unconstitutional and a slap in the face of California voters who overwhelmingly passed Proposition 215 in 1996.

The Wellness Tree case is the first time a San Diego Superior Court Judge ruled against the City of San Marcos on this issue and also appears to be the first time the legality of the San Marcos Ban will be challenged in court.

On Jun 3rd instead of revising their unconstitutional ordinance, the San Marcos City Attorney’s Office will resume their eradication effort in court yet again trying to convince Judge Nugent that regulation really does mean eradication.

The hearing will be held in the Vista Courthouse at 1:30pm in Department M30 on Jun 3rd, 2011.

San Marcos City Council

Hal Martin

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