Pubdate: Sat, 6 Jun 2009
Source: Contra Costa Times (CA)
Copyright: 2009 Knight Ridder
Author: Brent Ainsworth
Bookmark: (Marijuana - Medicinal)


A Novato medical marijuana dispensary ordered with eviction a month 
ago is still open for business, and its lawyer expects it to be open 
for a long time to come.

That's great news for the almost 600 clients who have come to rely on 
the Apela Collective for relief since it opened without city 
officials' knowledge on Jan. 15.

"All I've been hearing is, 'Thank God you're here,'" said Apela 
Collective manager Elizabeth Harris. "I have had little old ladies 
coming in almost in tears because they couldn't get over to Oakland 
or San Francisco or even to Fairfax to buy what we offer."

The dispensary has been quietly operating in the Ignacio Center on 
Entrada Drive. It is one of three medical marijuana collectives in 
Marin, including the 13-year-old Marin Alliance in Fairfax and the 
upstart Going Green, which opened last month in Corte Madera. A 
Sausalito pot club that opened last year recently closed.

The Novato operation was served a notice of eviction on May 5 by the 
property owner, Ignacio Properties, which said Apela was in violation 
of local and federal laws and was considered a nuisance. Since then 
the city and Apela Collective attorney Edward Higginbotham have 
traded letters seeking to understand each other's stances.

Higginbotham has filed a technical legal challenge because he said 
the complaint is confusing. It will be heard in Marin Superior Court 
on June 29.

"They allege evidence of nuisance, but I made a records request 
through the city about any police reports or complaints against us 
and they told me there hadn't been any," Higginbotham said. "I'm 
confident we're in good standing."

Vincent DeMartini, the San Rafael attorney who represents Ignacio 
Properties, said the lease signed by Apela Collective mentions 
nothing about selling medicinal marijuana. The lease states that the 
business planned to operate as a retail herb store.

"The issue here is not whether medicinal marijuana is a good thing; 
the issue is a landlord-tenant issue," he said. "The appearance when 
you read the lease, at least the understanding of the landlord, is 
that this would be some type of holistic medicine and health 
products, not medicinal marijuana."

Harris said about 450 of her clients have signed a petition 
supporting the pot club. Every Apela client is required to show 
paperwork from a doctor showing that use of medical marijuana has 
been approved, Harris said. Doctors' offices are called to verify the notes.

A few times, teens have had to be chased away from the business. A 
window was broken shortly after it opened. Otherwise, Harris said 
there haven't been any problems.

But now there are problems, because the city did not know Apela 
Collective was open until late April when a resident notified city 
staff. Although Novato does not have a zoning moratorium on medical 
marijuana collectives, it has an ordinance that prohibits land use 
that is not in compliance with state or federal law.

As of 1996, state law allows for possession and cultivation of 
marijuana for medical purposes by patients who obtain doctor 
approval. But according to federal law, possession of marijuana is a 
misdemeanor and cultivation a felony.

Novato City Attorney Jeff Walter said a business does not have to 
prompt letters or voice mails of public complaints to be considered a 
"nuisance per se" and thus a violation of the law. He cites a 
doctrine that says any violation of city code is a "nuisance per se," 
and therefore illegal.

In the Apela situation, the lease with Ignacio Properties says the 
business is operating as a retail herb store. The city's stance is 
that it wasn't full disclosure and constitutes misrepresentation, and 
it contends that Ignacio Properties should shut down Apela because 
the breach of its lease constitutes a nuisance, making it illegal.

Higginbotham maintains that there is nothing specific about what the 
dispensary has done to break the law.

"It's like they're making this up," Higginbotham said. "They do not 
articulate any further in the complaint. The word is that (the city) 
told the property owner to evict Apela or there would be problems, 
but just because the city says it's a problem doesn't mean that there 
is a problem."

Lynette Shaw, who operates the 5,000-client Marin Alliance in 
Fairfax, said the reason her collective has survived for 13 years is 
because she sat down with the police chief, the Planning Commission 
and Town Council members to find out what rules she needed to follow. 
She has a business license and a use permit and said she does not 
support medical marijuana dispensaries that don't fully disclose 
their intentions with local authorities.

"If other municipalities wanted to step up to the plate, they should 
be contacting me and the town of Fairfax for advice," Shaw said. 
"What we have is a model, and I think it's actually the model for the 
whole nation. E We've managed to hold our head up and provide a 
wonderful service to people who need help and get them through their 
personal crisis."

Going Green in Corte Madera has been open since early May, but a town 
official said authorities weren't aware of it until this week.

Gate Five Caregivers in Sausalito, which opened late last year, 
recently shut down because of several break-ins. Sausalito Chief of 
Police Scott Paulin said the city had issued notice that Gate Five 
was in violation of a city moratorium against medical marijuana 
collectives, but it shut down on its own.

Higginbotham predicts that Apela Collective will stay open and that 
an eviction would prompt a jury trial.

"If we lose, we lose," he said. 
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MAP posted-by: Richard Lake