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.
NewsHawk: Ganjarden: 420 MAGAZINE
Source: Times-Standard
Author: Thadeus Greenson
Copyright: 2010 Times-Standard
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.
NewsHawk: Ganjarden: 420 MAGAZINE
Source: Times-Standard
Author: Thadeus Greenson
Copyright: 2010 Times-Standard
