Pubdate: Sat, 6 Jun 2009 Source: Contra Costa Times (CA) Copyright: 2009 Knight Ridder Contact: http://www.contracostatimes.com/ Details: http://www.mapinc.org/media/96 Author: Brent Ainsworth Bookmark: http://www.mapinc.org/topic/dispensaries Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal) NOVATO CANNABIS CLUB STANDING FIRM DESPITE ORDER TO CLOSE 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. - --- MAP posted-by: Richard Lake