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Decision looms for Auburn medical marijuana dispensary’s appeal

Both parties confident after arguing case
By: Jon Schultz, Journal Staff Writer
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Both the City of Auburn and the medical marijuana dispensary it had shut down have argued their cases, and a decision on whether Sierra Patient and Caregiver Exchange can reopen its Auburn business is expected as soon as December.

The case has been in the appeals process since Nov. 9, 2011, and the city has spent about $68,000 in legal fees on it through October. Richard Miller, owner of the barred Blooms & Blossoms dispensary, has also paid dearly – foreclosing on his Auburn home which he has to vacate within a couple weeks and also filing for personal bankruptcy, said his attorney, David Brock.

“Mr. Miller has not been coping very well at all,” Brock said. “Emotionally, obviously he’s not doing very well in that department either.”

If he fails to win the appeal, it would strike another blow to medical marijuana availability in the Auburn area.

In Colfax, the Golden State Patient Care Collective, a medical marijuana dispensary operating there for eight years, closed in August after receiving a letter from a U.S. assistant attorney warning of criminal or civil penalties if it continued to operate in violation of federal law. 

In Roseville, a ban on outdoor cultivation of medical marijuana took effect in November.

On Aug. 30, 2011, the Placer County Superior Court granted a preliminary injunction prohibiting Miller from operating the medical marijuana dispensary.  The shop at 750 Lincoln Way shut down a month prior to the ruling after the city obtained a temporary restraining order.

Auburn banned medical marijuana dispensaries six years ago, and it granted Miller’s business license for a “variety store; florist shop” in April 2011, only to discover soon after it opened that it had been a medical marijuana storefront, according to court documents.

City Attorney Michael Colantuono said he emerged confident after the Nov. 14 oral arguments in front of the 3rd District Appellate Court in Sacramento; he expects the court to rule in favor of the city solely on the grounds of that business license violation.

The court has 90 days to make its ruling, but he said he expects it to come before year’s end.

“Sometimes you can get a sense from the questions the court asks and the way they ask them what they’re thinking, and this court seems to be thinking that there’s no value in deciding whether or not local governments can ban medical marijuana dispensaries because the Supreme Court is going to be answering that question sometime next year in cases that are already pending,” in the cities of Riverside and Upland, Colantuono said.

“So where it seems they’re likely to go on this case, to say because they violated both our medical marijuana ordinance and our business license ordinance, the court can decide the case based on the business license violation alone.

“So that leads me to expect that we’re going to win, and we’re going to win because they were not truthful on their business license application.”

On the other hand, Brock said he feels confident a ruling will reverse the injunction that closed the dispensary on the grounds that local governments can regulate, but not prohibit, medical marijuana dispensaries according to state laws established in 1996.

He disagrees with Colantuono’s assertion that the court will make a ruling solely on the business license.

“The city is trying to claim that Sierra misrepresented something, but the truth is what they did is they (applied for a license) to comply with a legally valid zoning ordinances that the city had,” Brock said. “There’s no reason to request a dispensary license when the city already said, ‘No, we’re not going to grant them.’”

In Judge Colleen Nichols’ ruling, she said Miller knew about the city’s ordinance and could have sought legal relief before opening the dispensary, rather than resorting to the “camel’s nose approach” by saying it was going to be a florist.

“The reason she gave that observation is that when you are trying to get an injunction, one of the legal issues is the balance of hardship, and they were saying, ‘We’ve got all this money out, they’re shutting us down without notice, it’s not fair,’” Colantuono said. “And her point was, ‘You painted yourself into a corner, and I’m not helping you out of it.’”

Blooms & Blossoms had about 500 patients. Brock said two of them succumbed to cancer in the time the dispensary has been closed.

“Honestly, from a pure policy standpoint,” Brock said, “it’s inhumane to require people like the patients who died within this last year to actually have to go to the effort of driving an hour or more away from their town especially when some of them are homebound to alleviate their symptoms.”

Messages seeking comment from Miller were not returned.

 

Jon Schultz can be reached at jons@goldcountrymedia.com. Follow him on Twitter @Jon_AJNews