• Registered: 2007-09-11
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Topic: County takes pot dispensary to court; dispensary argues it does not ne

http://www.times-standard.com/localnews/ci_15521391

County takes pot dispensary to court; dispensary argues it does not need a conditional use permit

Thadeus Greenson/The Times-Standard
Posted: 07/15/2010 01:15:21 AM PDT

Is a medical marijuana dispensary a store?

The answer to this question may well determine the fate of the Hummingbird Healing Center, a medical marijuana dispensary in Myrtletown, just outside of Eureka city limits, that has been operating since last year without a county-issued conditional use permit.

Humboldt County -- arguing that the center needs a conditional use permit to operate legally -- is now seeking a preliminary injunction from a Humboldt County Superior Court judge to force the center to close its doors until it procures a permit or the court finds it does not need one. Preliminary injunctions are court orders made at the request of one party that prevents another party from pursuing a course of action until a conclusion of a trial on the merits of the case.

Wednesday, both sides offered oral arguments before Judge Dale Reinholtsen, and it seems the issue may not be as cut-and dried as many may think.

For the county, Deputy County Counsel Davina Smith argued that the court should issue the injunction because medical marijuana dispensaries are not a principally permitted use in any zoning designation in Humboldt County, and consequently require a conditional use permit issued by the Humboldt County Planning Commission, as per county code. County code currently says nothing about medical marijuana dispensaries, Smith said.

”If it's not specifically enumerated (in the code), you need a conditional use permit,” Smith said.
Chris Johnson Hamer, representing the Hummingbird Healing Center, argued that there is simply no need for the center to pursue a conditional use permit from the county, as it is a principally permitted use.

”At the least, a medical marijuana dispensary is a store,” Hamer said. “This is a store that sells medical marijuana.”

County Code Section 314-2.1 outlines the principally permitted uses for a neighborhood commercial zone within the county, the same zoning designation shared by the Myrtletown shopping center that houses the Hummingbird Healing Center. The code states that principally permitted uses are “stores, agencies and services of a light commercial character, conducted entirely within an enclosed building, such as antique shops, art galleries, retail bakeries, banks, barber shops ... drug stores ... food markets.”

Further, Hamer argued that the law is vague, and therefore unconstitutional because it could serve to entrap the innocent.

”There is nothing to lead a person of ordinary intelligence to believe that a medical marijuana dispensary would not be permitted in the (neighborhood commercial) zone,” Hamer said, adding that the county code leaves too much room for discrimination. “There's no notice that if you have a store that sells medical marijuana, that's somehow different than a store that sells anything else.”

Hamer also argued that granting the preliminary injunction would irreparably harm her clients, putting the center out of business, and that no judgment should be made until the county's case against her clients can be fully adjudicated.

In questioning the attorneys, Reinholtsen seemed to seize on the question of whether a medical marijuana dispensary is, legally, any different than a store.

”Why is a store that distributes marijuana legally different than a drug store?” Reinholtsen asked.
Reinholtsen then turned his attention to the use of the phrase “such as” in the county code, pointing out that the phrase is usually used to offer examples, not to enumerate an exclusive list.

”It seems to me that's very vague,” Reinholtsen said, before asking Smith if a store selling computers would be required to get a conditional use permit because it is not specifically listed as a principally permitted use under the code.

Smith maintained that if it's not specifically listed, a conditional use permit would be required.
”I would suggest to the court that if you wanted to open your computer store in the (commercial neighborhood) zone, you would have to go to the Planning Commission and make your case.”

Reinholtsen took the matter under submission, and said he hopes to issue a ruling by the end of next week.

Thadeus Greenson can be reached at 441-0509 or
tgreenson@times-standard.com.

  • Registered: 2007-09-11
  • Posts: 1,458

Re: County takes pot dispensary to court; dispensary argues it does not ne

http://www.times-standard.com/localnews/ci_15530969

Dispensary in Myrtletown held back by concerns over traffic; commission requests Supervisors
extend Cutten subdivision EIR deadline

Donna Tam/The Times-Standard
Posted: 07/16/2010 05:45:50 AM PDT


Time restraints and traffic concerns pushed back the Humboldt County Planning Commission's decision on a new Myrtletown medical marijuana dispensary Thursday night.

The commission also requested an extension on the Ridgewood Village project's public comment period from the Humboldt County Board of Supervisors.

The Humboldt County Collective is looking to open its doors at 1670 B Myrtle Avenue, just outside the Eureka city limits in a small shopping center on Myrtle Avenue.

The commission voted unanimously Thursday to have staff come back with answers for traffic issues, and the inclusion of a condition that the dispensary would submit a signage and parking plan for public works to review.

Commissioners had a variety of concerns, ranging from public safety to compliance, which lengthened the discussion.

Commissioners Mel Kreb and Bruce Emad requested a traffic study, with concern to public safety.
While staff has not conducted a traffic study, they indicated that the applicant Bill Byron has estimated about five visits per hour. The dispensary plans to have a membership of 1,200.

Commissioner Dennis Mayo said his concerns about public safety also included the location of storefront, which is behind the complex and is not visible from the main street. He suggested that the dispensary should also hire a security guard for surveillance to alleviate some of the concerns from the neighboring senior home.

Discussion also included the existing dispensary, the Hummingbird Healing Center (HHC), which is located in the same complex. There was some discussion of how the Humboldt County Collective's permit would affect the HHC, which is currently operating without a conditional use permit. The county is seeking an injunction against the HHC.

The dispensary discussion was cut short because a majority of the people who filled the room's seats were there to speak about the environmental impact report of the proposed Cutten subdivision Ridgewood Village.

....
Donna Tam can be reached at 441-0532 or dtam@times-standard.com.

  • Registered: 2007-09-11
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Re: County takes pot dispensary to court; dispensary argues it does not ne

http://www.times-standard.com/localnews/ci_15620250

Humboldt County wins case seeking to shut medical marijuana dispensary

Thadeus Greenson/The Times-Standard
Posted: 07/28/2010 01:30:17 AM PDT

A Humboldt County Superior Court judge's ruling Tuesday may spell the end for the Hummingbird Healing Center, a medical marijuana dispensary located on Myrtle Avenue just outside of Eureka city limits.

The dispensary opened in Myrtletown last year, but never received a county-issued conditional use permit, arguing that it did not need one to operate in the county's neighborhood commercial zoning. The county disagreed and -- arguing that the center needs a conditional use permit to operate legally -- sued the center, seeking a preliminary injunction that would force the center to close its doors until it procures a permit, or the court finds it does not need one.

Tuesday, after hearing oral arguments in the case July 14, Humboldt County Superior Court Judge Dale Reinholtsen granted the county-sought preliminary injunction, labeling the dispensary a public nuisance.

Hummingbird Healing Center Executive Director Nathan Johns said Reinholtsen's ruling is unfortunate, but that the center will comply fully with the court's order.

”Unfortunately, it means that 1,762 patients are going to be without access (to medical marijuana) in the Eureka area,” Johns said. “Today, the court essentially denied safe access, or any access, for the greater Eureka area. It's rather unfortunate, but that's the court ruling so we're going to abide by it to the fullest extent.”

Johns said Tuesday afternoon that the center would cease operations as soon as it receives an order stemming from Reinholtsen's ruling.

Deputy County Counsel Davina Smith, who argued the case on behalf of the county, declined to comment on the court's ruling, or what further action the county would be taking, saying through a department administrative assistant that it's a matter of “ongoing litigation.”

During oral arguments on the matter, Smith argued that the court should issue the injunction because medical marijuana dispensaries are not a principally permitted use in any zoning designation in Humboldt County, and consequently require a conditional use permit issued by the Humboldt County Planning Commission, as per county code.

Chris Johnson Hamer, representing the Hummingbird Healing Center, argued that the center is, in fact, a principally permitted use.

”At the least, a medical marijuana dispensary is a store,” Hamer told the court. “This is a store that sells medical marijuana.”

Hamer was not immediately available for comment Tuesday.

County Code Section 314-2.1 outlines the principally permitted uses for a neighborhood commercial zone within the county, the same zoning shared by the Myrtletown shopping center that houses the Hummingbird Healing Center. The code states that principally permitted uses are “stores, agencies and services of a light commercial character, conducted entirely within an enclosed building, such as antique shops, art galleries, retail bakeries, banks, barber shops ... drug stores ... food markets.”

In questioning attorneys, Reinholtsen seemed to hone in on what distinguished medical marijuana dispensaries from other types of stores.

”Why is a store that distributes marijuana legally different than a drug store?” he asked, going on to state that the county code seems vague and questioning whether the code would require a computer store to also get a conditional use permit because it is not specifically listed as a permitted use under the zoning code.

Smith replied that a computer store would, just as a medical marijuana dispensary, have to go through the conditional use permit process.

In his ruling, Reinholtsen agreed, finding that the county's “zoning ordinances are not unconstitutionally vague and, based upon the evidence received, are not being arbitrarily applied.” Reinholtsen goes on to state that he did not find that the issuance of a preliminary injunction would result in grave or irreparable harm for the Hummingbird Healing Center.

Johns said Tuesday that it was too early to tell how the dispensary would proceed and whether it would attempt to challenge the court's ruling.

Thadeus Greenson can be reached at 441-0509 or tgreenson@times-standard.com

  • Registered: 2007-09-11
  • Posts: 1,458

Re: County takes pot dispensary to court; dispensary argues it does not ne

http://www.times-standard.com/localnews/ci_15629406

Eureka marijuana dispensary fights to keep doors open

Thadeus Greenson/The Times-Standard
Posted: 07/29/2010 01:30:29 AM PDT


The Hummingbird Healing Center plans to appeal a Humboldt Superior Court judge's ruling that paves the way for the county to shutter the Myrtletown medical marijuana dispensary.

”Although the trial court appears to have put a great deal of effort into the ruling, which we do appreciate, it still appears that the decision is legally in error,” the dispensary's attorney, Chris Johnson Hamer, wrote in an e-mail to the Times-Standard on Wednesday.

Hummingbird Healing Center has been operating without a county-issued conditional use permit since opening its doors in the Myrtletown shopping center last fall. The county recently brought suit against the dispensary, arguing that the dispensary is operating in violation of county zoning ordinances and seeking a preliminary injunction that would force the dispensary to close its doors until the conclusion of the court case or until it procures the proper permits.

On Tuesday, Humboldt County Judge Dale Reinholtsen ruled in favor of the county, granting the preliminary injunction that will force the center to close, at least temporarily.

Hamer said in her e-mail that the center not only intends to appeal Reinholtsen's order for a preliminary injunction but will also seek to stay the order pending a review by the California Court of Appeals. On behalf of the dispensary, Hamer has argued that medical marijuana dispensaries do not need conditional use permits in the county's neighborhood commercial zone, as they are principally permitted uses. Dispensaries, Hamer argued, are no different than other retail stores.

”This is a store that sells medical marijuana,” she told the court at a July 14 hearing.

Deputy County Counsel Davina Smith argued that there is no mention of medical marijuana dispensaries in the county's zoning ordinance, that they are not a principally permitted use in the neighborhood commercial zone and that dispensaries consequently need to go before the Humboldt County Planning Commission to seek a conditional use permit before opening.

The Hummingbird Healing Center currently has a conditional use permit application pending with the county, according to Planner Steven Lazar, who said the application was submitted “several months ago.”

Lazar said conditional use permit applications are generally heard by the commission in the order they're received and processed, pointing out that The Humboldt County Collective applied for a conditional use permit in May of last year, and is still working through the process. Because the collective is seeking to open up just a stone's thrown from Hummingbird, in the same Myrtletown shopping center, Lazar said the outcome of its application could be a kind of litmus test for Hummingbird.

So far, the collective's permit has been the subject of a pair of planning commission hearings, and Lazar said he expects the commission to decide the fate of the permit at its next meeting.
Meanwhile, Hummingbird's application will have to wait in line.

”We'll probably be setting them for a hearing in the coming months, but nothing is set yet,” Lazar said. “Our commission calendar is just so full because we only have one opportunity a month to get things on.”

Thadeus Greenson can be reached at 441-0509 or tgreenson@times-standard.com

  • Registered: 2007-09-11
  • Posts: 1,458

Re: County takes pot dispensary to court; dispensary argues it does not ne

http://www.times-standard.com/localnews/ci_15693270

Planning commission approves new Myrtletown marijuana dispensary, takes public comment on Ridgewood Village

Donna Tam/The Times-Standard
Posted: 08/06/2010 01:27:16 AM PDT

On the heals of the county winning a case to shut down a medical marijuana dispensary operating in Myrtletown, the Humboldt County Planning Commission approved another dispensary planning to open nearby.

The commission unanimously approved the conditional use permit for the Humboldt County Collective on Tuesday night, despite some hesitation.

The Humboldt County Collective plans to open its doors at 1670 B Myrtle Avenue, just outside the Eureka city limits in a small shopping center on Myrtle Avenue. The county won a case last week against the Hummingbird Healing Center (HHC), located in the same complex, for operating without a conditional use permit. The HHC has filed an appeal.

Commissioner Denver Nelson questioned approving a conditional use permit for the collective when the county has yet to create an ordinance to regulate marijuana dispensaries. He pointed to the city of Eureka, which placed a moratorium on dispensary applications until an ordinance is approved. Arcata has also done the same.

”It seems to me we're putting the cart before the horse,” Nelson said early in the meeting.
The commission ended up approving the permit with additional conditions, including that the dispensary amend its operations to follow any new ordinances or laws that are created, and come back in one year for review by the commission.

Nelson had requested extra provisions be added to the permit's conditions -- including required lab testing, the addition of a 2 percent tax, adding an indemnity agreement to relieve the county of any liability associated with the dispensary, and prohibiting the sale of marijuana to those under the age of 21 -- but was told by staff that his requests were either redundant or, in the case of the tax, not within the commission's authority.

The applicant said the dispensary's operations and business practices already included many of those provisions.

”I feel like I've gone above and beyond to really try to make this happen the right way,” applicant Bill Byron said.

....
Donna Tam can be reached at 441-0532 or dtam@times-standard.com.

  • From: Humboldt County
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Re: County takes pot dispensary to court; dispensary argues it does not ne

Huge success for their collective.

  • Registered: 2007-09-11
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Re: County takes pot dispensary to court; dispensary argues it does not ne

http://www.times-standard.com/localnews/ci_15728347

Hummingbird center seeks stay on closure order; Myrtletown dispensary hopes to stay open while court appeal plays out

Allison White/The Times-Standard
Posted: 08/10/2010 01:21:09 AM PDT

A Myrtletown medical marijuana dispensary is looking to keep its doors open while its appeal of a Humboldt County judge's order works its way through the legal system.

The Hummingbird Healing Center has been operating without a county-issued conditional use permit since it opened in the Myrtletown shopping center last fall. The county brought suit against the dispensary earlier this year, arguing that it is operating in violation of county zoning ordinances.
Humboldt County Superior Court Judge Dale Reinholtsen ruled in favor of the county, granting a preliminary injunction that forced the dispensary to close until the end of the court case or until it receives a county permit.

Friday, attorneys for the center appealed Reinholtsen's decision to the First District Court of Appeal, and then Monday requested a stay on the order that shut the dispensary down.

According to a copy of the document from the dispensary's attorney, Chris Johnson Hamer, the defense is arguing that Humboldt County Judge Dale Reinholtsen “committed legal error” when he issued the order that shut down the site and “deprived its approximately 1,400 patients of the medication recommended by their doctors to ease their suffering.”

The document also states that because the language of the county's zoning ordinance does not clearly prohibit medical marijuana dispensaries in that area, the order closing the Hummingbird Healing Center violates due process protections.

Deputy County Counsel Davina Smith said she could not comment on the case, as it involves ongoing litigation. She had not yet received a copy of Hamer's filing seeking to rescind Reinholtsen's order.
In court, Smith argued there is no mention of medical marijuana dispensaries in the county's zoning ordinance, and they are not a principally permitted use in the neighborhood commercial zone. Consequently, Smith argued, dispensaries need to go before the Humboldt County Planning Commission to obtain a conditional use permit before opening.

The Hummingbird Healing Center submitted a conditional use permit application several months ago and it is now pending with the county, according to county planning staff. Such applications are heard by the commission in the order they are received. A business called the Humboldt County Collective submitted an application last May to open a medical marijuana dispensary in the same Myrtletown shopping center, and received its conditional use permit last week.

Allison White can be reached at 441-0506 or awhite@times-standard.com.

  • Registered: 2007-09-11
  • Posts: 1,458

Re: County takes pot dispensary to court; dispensary argues it does not ne

http://www.times-standard.com/othervoices/ci_15766859

My Word: A vulnerable population?

Dianne Day/For the Times-Standard
Posted: 08/13/2010 01:32:29 AM PDT

Concerning the approval of a second marijuana dispensary in the Myrtletown Shopping Center, as reported in the newspaper:

I want to state up front here that I'm in favor of legalizing marijuana, and will vote that way whenever it comes up on the ballot. Nevertheless, I was one of a number of people who did not want a second marijuana dispensary opened in the Myrtletown Shopping Center. I withdrew my protest when it became clear to me that my reason for being opposed was different from that of my neighbors. My opposition comes from a belief that our elders, or seniors, constitute a vulnerable population and, as such, deserve special thought when it comes to zoning, planning and locating certain activities. This would be analogous to regulations that bar certain types of activities within a certain distance from schools, daycare centers, and so on.

Because of my age and infirmity, I was physically unable to attend the Planning Commission meetings or to organize an effective, vocal opposition; this was distressing, because I could have done it when I was younger. Yet what dismayed me the most throughout the whole process was that it was as if we seniors who live just a few steps away from both of these marijuana dispensaries, the existent one (that existed illegally) and the proposed one, were not here at all. As if we could neither be seen nor heard. Yet there are more than 50 of us living here in a group of little attached cottages called Summercreek.

One thing all we human beings have in common is that no matter how strong, how attractive, how able and effective we may have been in our youth and on into maturity, some day we will be old and no longer as we were before. We won't like to admit it, but we do need a certain amount of special consideration.

So I'm just asking: Do elders, or seniors, constitute a vulnerable population? Should zoning regulations and things like special use permits take that into account?

Dianne Day resides in Eureka.