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

Jim Desmond
Mayor

Hal Martin
Vice Mayor

Rebecca Jones
Council Member

Kristal Jabara
Council Member

Chris Orlando
Council Member

Judge Grants Emergency Injunction against St. Bernard’s Provisions San Marcos Medical Marijuana Collective

By: Eugene Davidovich

SAN MARCOS – On Friday of this week, San Diego Superior Court Judge Robert Dahlquist granted an emergency injunction against St. Bernard’s Provisions medical marijuana collective located in the City of San Marcos in San Diego County forcing the collective to close its doors.

Despite numerous demands by patients, advocates, and concerned citizens, the City of San Marcos has refused to accept Proposition 215 as law and is engaged in a medical marijuana eradication campaign.

In 2006 the San Marcos City Council adopted an ordinance prohibiting medical marijuana dispensaries in all zones within the city’s jurisdictional limits and specifically instructed the city’s business tax office not issue permits conditional or otherwise for such use.

Advocates, patients, and concerned citizens alike have called the San Marcos Ban unconstitutional and a slap in the face of California voters who overwhelmingly passed Proposition 215 in 1996. Since 1996 support for medical marijuana across California has continued to grow with the most recent polls showing over 70% of Californian’s in support of medical use.

To date this patient eradication campaign has cost the city millions of dollars and has included criminal and civil action against legitimate patients. The latest example in the city’s spending furry is the filing of this restraining order and demand for an “Emergency Injunction” against St. Bernard’s Provisions.

Just in the last couple months the City of San Marcos has spent several hundred thousand dollars on this effort with the cases against MMSC, Inc., and now St. Bernard’s Provisions.

On Friday December 3, members of St. Bernard’s collective were in court for a hearing on the City’s emergency injunction. The courtroom was full with over a dozen supporters, patients, and members of Americans for Safe Access, who took time on a weekday afternoon to show up in support of St. Bernards and against the injunction and illegal ban.

The hearing was scheduled to begin at 2:30 but got underway an hour late. Jeffery Lake of Lake APC, a local medical marijuana law firm which specializes in assisting patients in navigating the state’s medical marijuana laws represented St. Bernard’s Provisions that day.

The hearing began with the Judge going over the city’s complaint. The city was claiming that because St. Bernard’s business license application stated the collective provided “medical provision” rather than “medical marijuana” it was violation of the city’s code. The Judge failed to recognize or even discuss the fact that the city specifically instructed its business license office to deny all applications for medical marijuana dispensaries.

Mr. Lake explained to the Judge that the collective was truthful in their application and in fact was providing medical provisions including medical cannabis to patients and that there was already a hearing set for December 9 with the city to determine if medical provisions could include medical marijuana according to the city’s definition.

Lake also argued that the city had failed to prove that this was an emergency. There had not been a single complaint about the facility, there was no detriment or harm caused to anyone from the collective’s existence, and in fact the city’s action in itself was a detriment. Lake argued the injunction would cause harm to patients, the landlord, and others in the community who directly benefit from safe and reliable access that St. Bernard’s Provisions brought to San Marcos.

The City Attorney hardly spoke at all as she could tell that Judge Dahlquist had made up his mind about the hearing long before it began.
Judge Dahlquist concluded that the collective should have applied for the license as a medical marijuana dispensary and after being denied, should have sued the city for denying it the license intern challenging the city’s ban, rather than “not being truthful in the application”.

In the end after Lake presented countless arguments, facts, and evidence clearly proving there was no justification for the emergency injunction, and that the collective was in fact truthful, Judge Dahlquist still sided with the bias and granted the city’s request forcing the collective to close.

Patients, concerned citizens, and members of the collective alike were disappointed at the decision and vowed to continue the fight for safe access and a reasonable ordinance regulating dispensaries in San Marcos rather than a ban.