NEWS: Upland says no to medical marijuana cooperative

UPLAND - The City Council this week denied another medical marijuana cooperative the ability to operate within city limits.

Route 66 Nursery, 1743 W. Foothill Blvd., had appealed a decision by city staffers to deny their application for a business license.

Council members denied the application because the cooperative was not consistent with the city's zoning ordinance that prohibit medical marijuana cooperatives.

The council denied the appeal on Monday at a special meeting at City Hall.

"We've been consistent, I think, in our dealing with four previous facilities involving marijuana and I see this as being slightly different, but still I think we are within our boundaries to deny it," Councilman Tom Thomas said.

Qualified medical marijuana patients can pay a monthly fee for a small plot to grow and cultivate their own medical marijuana at Route 66 Nursery.

The nursery applied for a business license on June 28 and had it denied two days later.
The nursery in September filed an appeal letter challenging the city's decision.

David Welch, the attorney representing Route 66 Nursery, said the city's zoning ordinance is inconsistent with state law.

California voters approved the Compassionate Use Act in 1996, which decriminalized the use of marijuana for medical purposes.

Welch also cited the Medical Marijuana Program Act of 2004 that made it possible for the state to determine ways of dispensing medical marijuana.

"I really focus on the true intent for the seriously ill. If the seriously ill can't cultivate marijuana in the city of Upland, must they go outside the city or can they (the patients) do it?" Welch said. "This legislation and the people of California were wise enough to allow that to occur for them, but the city of Upland denied them that right, so I'll talk to my client and proceed from there."

However, the city's position is that there is nothing in either act that requires the city to allow medical marijuana cooperatives, dispensaries or nurseries, according to the staff report.

Source: Contra Costa Times

NEWS: Upland medical marijuana co-ops file with state Supreme Court

UPLAND - Medical marijuana cooperatives fighting the city to stay open are looking to the state Supreme Court for help.

An attorney representing three cooperatives in the city has filed a petition for review and an application for a stay with the state Supreme Court in San Francisco.

The city shut down the cooperatives because its zoning ordinance does not allow such facilities to operate.

G3 Holistic, Upland Herbal Patient Cooperative and Old World Solutions were shut down Aug. 13 after a preliminary injunction was awarded to the city by Judge Barry Plotkin at West Valley Superior Court in Rancho Cucamonga.

"The Court of Appeal declined summarily so now they're taking another bite at the apple, so to speak, seeking the Supreme Court opinion," Upland City Attorney William Curley said. "We're feeling pretty confident the court would uphold Judge Plotkin and his position, but certainly we'll see. It's certainly their right to seek the high level of review."

A request similar to the one sent to the state Supreme Court has been rejected by the Court of Appeal in Riverside.

"We have no ruling and we're hoping the Supreme Court will get involved," said Roger Jon Diamond, the attorney representing the three cooperatives. "It's difficult to get the attention of the Supreme Court because they're busy with a lot of cases, and they ordinarily don't like to take cases until there's been a few decisions by a Court of Appeal."

Diamond filed a petition for a stay with the Court of Appeal in Riverside, but it was denied, which led to the Supreme Court filing.

"The Court of Appeal, without giving any reason and with no explanation, denied our petition," Diamond said. "That order from the Court of Appeal filed Sept. 9 is what we're challenging in the Supreme Court."

Plotkin granted the injunction to the city after an opinion was made by an appeals court in Santa Ana regarding a similar case in Anaheim.

The case involved an Anaheim-based cooperative - Qualified Patients Association - that had sued the city of Anaheim in 2007. The city had attempted to implement an ordinance banning all dispensaries.

A dispensary is a for-profit entity that provides medical marijuana to qualified patients. A cooperative is a nonprofit that provides medical marijuana in a shop-like setting.

The opinion, published Aug. 18, was expected to address whether cities have the right to ban cooperatives, but the court ordered that part back to trial court for more hearings.

However, the court determined that California's Compassionate Use Act of 1996, which decriminalized medical marijuana, trumps federal law when cities attempt to ban dispensaries based on federal law. Federal law considers growing and using marijuana to be illegal. A footnote in the ruling went against an argument used by Anaheim attorneys.

The city of Upland relied on the same cases to argue for a preliminary injunction on the cooperatives.

"All of those that are representing cities or are on our side of the fence, so to speak, don't see that the Qualified Patients' case did anything to alter the status quo," Curley said. "Those in favor of the marijuana vending read into the footnotes and see a whole bunch of things that they cling to to say they're right."

Officials from the cooperatives announced they may present settlement terms to the city. Curley said he has not seen the terms and could not comment on them.

But, he said, the city does not intend to stop enforcing its ordinance.

Cooperatives "are prohibited. There's no middle ground, Curley said. "So if we have a proposal that says `Let us be open every other day,' there is no middle ground other than `you're not allowed.' I'm not sure what the proposal is, but, if and when we get it, we'll fairly look at it."

Officials from the cooperatives are also gathering signatures for a petition that could bring the issue up for vote in Upland. They will need about 3,500 signatures from registered voters in the city to get a measure on a ballot that would ask whether cooperatives can operate in the city under certain guidelines.

"The city is spending a lot of money fighting," Diamond said. "I don't know what their hang-up is. I mean, it seems to me that it is a crime not to allow someone undergoing chemotherapy whose nauseous, whose doctor recommends marijuana - it's a crime for the city to say you can't do it here in Upland."

Source: Inland Valley Daily Bulletin

NEWS: Upland medical marijuana cases may hinge on Anaheim case

UPLAND - Lawyers on both sides of the city's case against two medical marijuana cooperatives are holding their breath for a potentially game-changing ruling in an Anaheim case.
A three-year-long case against Anaheim by Qualified Patients Association could come to an end by Monday, setting a precedent by which judges may follow in future cases in the state.

Qualified Patients, an Anaheim-based medical marijuana dispensary sued the city in 2007, when the city was attempting to implement an ordinance banning all medical marijuana dispensaries.

Upland city officials are attempting to shut down G3 Holistic in the 1700 block of West Foothill Boulevard and Upland Herbal Patient Co-op in the 900 block of North Central Avenue.

City zoning rules prohibit medical marijuana dispensaries.

"There doesn't really appear to be any legal reason the city shouldn't continue to win and since Upland's formal ordinance is very similar to Anaheim's - if they win, we win," said Upland City Attorney William Curley.

Upland has filed an injunction against the cooperatives aiming to shut them down before the trial. A hearing was held Tuesday for one of the cooperatives. Roger Jon Diamond, an attorney representing G3 and UHPC, requested the hearing be pushed until after the Anaheim ruling.

The hearing for the second cooperative was to be held Wednesday, but both judges agreed to wait until Aug. 13.

"I believe the cases are basically the same or at least similar enough that judge in Rancho would want to hear what the state appellate court has to say," said Diamond.
After Qualified Patients filed its lawsuit, the city was granted a demur, terminating the lawsuit. Qualified Patients appealed the decision in the Court of Appeals in Santa Ana.

The case was argued in the Court of Appeals in September and a ruling would have come 90 days later, but the court required further time to look over the case. A ruling is expected by Monday, which will be 90 days after the continuance.

"If the appellate court strikes down the Anaheim ordinance it will create a whole new playing field. It will change the medical marijuana landscape," said Anthony Curiale, the lawyer representing Qualified Patients in Anaheim.

Should Anaheim prevail, Curiale believes it will void the state's compassionate use act, which was approved by voters in 1996 to de-criminalize the use of marijuana for medicinal purposes.

"That essentially means cities regardless of what state law says, will be able to completely ban medical marijuana in their cities," he said.

State law permits the operation of medical marijuana collectives and cooperatives, which are required to follow a set of guidelines by the Attorney General's Office.

The use of medical marijuana is still prohibited under federal law, and some cities chose to side with the feds by banning dispensaries.

The outcome of the case could determine if the state's law could pre-empt all cities' bans on medical marijuana dispensaries, said Moses Johnson, Anaheim city attorney.

"It could be far reaching, but we're not going to know until we see it. It's a very complicated issue," Johnson said. The Court of Appeal had it for a long time and everybody's just anxiously awaiting for a ruling."

Medical marijuana patients filled the Upland City Hall council chambers Monday in support of the cooperatives.

Several members shared their personal stories and expressed their concerns over the possibly of their clubs being shut down.

Aaron Sandusky, president of G3 Holistic also spoke. He said 690 of his members live in Upland and that the cooperative has paid more than $80,000 in taxes since they opened in November.

"We've done a really good job," Sandusky said. "We've taken the Attorney General's guidelines and tightened them up even more. We make great strides in making sure that what we're doing is above board."

However, the council does not believe the majority of Upland residents would support the operation of medical marijuana dispensaries in the city.

"It's kind of difficult because on one hand you feel for them and want to see them helped, on the other hand is helping them going to create a situation for people in our community which would not be a benefit to our children and would not be a benefit in other ways?" said Councilman Ken Willis.

Several Inland Empire cities - including Fontana, Claremont, Pomona, Rancho Cucamonga, Chino, Chino Hills, Ontario, Montclair, San Bernardino, Yucaipa, Rialto and Redlands - also prohibit dispensaries as a possible land use.

Jan Werner, an operator of the Inland Empire Patients Group in Bloomington, hit several road blocks before opening a year ago.

Warner settled on the unincorporated town because so many cities had bans on dispensaries.

"It's really unfortunate that through the whole state, very few counties and very few cities have authorized the operation of the facilities," he said.

Source: Inland Valley Daily Bulletin