Pubdate: Wed, 16 Feb 2011
Source: San Bernardino Sun (CA)
Copyright: 2011 Los Angeles Newspaper Group
Contact:  http://www.sbsun.com/
Details: http://www.mapinc.org/media/1417
Author: Sandra Emerson

NURSERY SEEKS OK TO GROW POT IN UPLAND

UPLAND - A medical marijuana nursery has filed a petition for a writ 
of mandate against the city after being denied a business license.

Route 66 Nursery filed the complaint on Feb. 4 at the West Valley 
Superior Court in Rancho Cucamonga after attempting to apply for a 
business license to operate a private plant nursery for qualified 
medical marijuana patients.

The city denied the applications because its zoning ordinance does 
not allow "medical marijuana dispensaries" to operate.

However, the complaint asserts that the business is not a dispensary, 
but rather a private plant nursery where qualified medical marijuana 
patients can obtain a plot of land to cultivate their own medical 
marijuana, which Route 66 believes is permitted.

Route 66 is asking the city to issue a business tax certificate. It 
is asking the court for an injunction preventing the city from 
enforcing its ordinance and that the city be required to pay the 
nursery's legal costs and damages.

The city has not been served with the filed petition for writ of 
mandate, so City Attorney William Curley said he cannot comment on the case.

But, as routine, the city will defend itself against all legal 
complaints, Curley said in an e-mail.

"The case should be one where the petitioners are seeking the Court's 
instruction to the City to allow the petitioner to operate their 
business," Curley wrote. "Based on both past and current case law I 
believe the City's existing regulatory laws prohibiting such land 
uses to be sound."

The nursery's CEO, Van Ton, applied for a business license with the 
city in June, stating the business activity as "plants, flowers, 
gardening, supplies and Prop. 215."

The city denied the permit due to its ordinance.

Proposition 215 was approved by voters in 1996 to legalize medical 
marijuana. The city's ordinance violates California law, according to 
the nursery's complaint.

The nursery appealed the city's denial in July. It applied for a 
business tax certificate in August to operate as a private plant 
nursery, which was also denied by the city in September.

Route 66 filed for an appeal later that month, which was denied by 
the City Council during a special meeting on Nov. 29.

The council adopted a resolution denying the appeal in December.

The council will be apprised of the matter once the case is received 
and evaluated, Curley said.

Although Route 66 is a private plant nursery and not a dispensary, 
Curley said it will not be treated differently.

"The zone sought to be used is a zone intended for commercial uses, 
not private nursery uses," Curley said. "If they seek to make the 
nursery a retail commercial use, then that violates the zoning 
prohibition. The zoning ordinance regulates all the involved land uses."
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MAP posted-by: Keith Brilhart