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SANTA CLARA VS.  MARIJUANA PART 1

Municipalities have long been playing tug-of-war with medical marijuana dispensaries, with several Cities having adopted ordinances prohibiting medical marijuana facilities.

Santa Clara has been fighting it's own battle against medical marijuana dispensaries, quarreling with Angel's Care Collective, a medical marijuana dispensary located on Laurelwood Avenue regarding use permits and zoning issues since 2009.

"Angel's Care does not have a use permit for its operations," says Deputy City Manager Carol McCarthy.  McCarthy states Angel's Care has a business license, but is operating in an improper zoning district.

According to McCarthy, zoning in the area where Angel's Care is located allows manufacturing, warehousing, commercial storage, wholesale distribution warehouses, incidental retail ( typically defined as 10 percent of floor area ) for goods associated with the primary allowed use, laboratories and research offices, processing and packaging, with conditionally permitted uses including retail commercial and services such as restaurants, cocktail lounges and live entertainment, outdoor storage and kennels.

"Since Angel's Care does not have approved permits and is not an allowed use in the zoning district, it is operating illegally and fines are being imposed," states McCarthy.

According to McCarthy, Santa Clara Planning is issuing weekly citations to Angel's Care for the zoning violations, with citations of $1,000 each, issued starting at the end of September 2009, with fines now $3,000 each week ( three separate code violations ), with Angel's Care allegedly owing the City over $110,000.  Fines were increased from $500 to $1,000 based on a Code provision that allows for doubling of fines when the same violation occurs within a 36-month period, of which McCarthy states is a standard code enforcement policy.

McCarthy states that The City became aware of Angel's Care selling medical marijuana in August 2009, when they applied for a business license.  "oeDuring the application process they used the term "'dispensary' but did not initially mention medical marijuana.  When we determined that Angel's Care was a dispensary for medical marijuana, the City sent our first cease and desist letter on September 22, 2009."

Owners Say City Was Well Aware of Type of Business

According to Angel's Care Executive Director Douglas Carter, the City knew the type of business Angel's Care was eight months prior to opening, as he and a representative of Angel's Care hand delivered a planning summary to the City planning department, as well as to then Police Chief Steve Lodge and then Mayor Patricia Mahan in February 2009.

"oeAngel's Care as a corporation has the legal right to use "'Health Care Provider' in all licensing and permits they obtain.  There was absolutely no deception to the City of Santa Clara.  They knew who and what we were eight months before we opened," states Carter.

Carter adds in 2004, the state attorney general sent a letter to "all cities in California" telling them to create ordinances in their City for collectives so patients in their community could have a safe location to get cannabis.  "oeEither from their arrogance or ignorance the City of Santa Clara decided to ignore this letter," states Carter.  "oeAs the laws are now, we have a legal right to be here."

On August 16, 2011, the City Council adopted an Ordinance amending the Zoning Code to prohibit medical marijuana dispensaries.

"The city is fining us for being a retail business in a light industrial zone.  However, 85 percent of the businesses in the light industrial zone are retail and without a conditional use permit," states Carter.  "Even our own address was a retail store for eight years prior to Angel's Care with no permit."

Though Angel's Care lost appeals at two levels regarding the zoning and use permit issue, they are moving forward with an initiative petition, "for the purpose of implementing the Compassionate Use Act of 1996 and the Medical marijuana Program Act."

The initiative states "That the City of Santa Clara should implement a plan to provide for and regulate the safe distribution of marijuana to all patients in medical need of marijuana within the City of Santa Clara as directed by the Companionate Use Act of 1996 ..."

The proposed initiative reads "AN INITIATIVE TO ADOPT AN ORDINANCE PERMITTING MEDICAL MARIJUANA DISPENSARIES IN ALL NON-RESIDENTIAL AREAS OF THE CITY OF SANTA CLARA AND ESTABLISHING STANDARDS FOR SUCH DISPENSARIES," would add Chapter 5.46, entitled "oeMedical Marijuana," to the City Code of the City of Santa Clara.

If approved, the initiative allows the City Council to make amendments if consistent with the findings and purpose of the initiative.

The City received a ruling from a Superior Court judge in March 2010 that Angel's Care is operating in an improper zoning district without proper use permits.  Angel's Care appealed that ruling to the Superior Court appellate division, which was denied.  According to McCarthy, the City has filed an injunction to close Angel's Care, with hearing slated for January 24.

Next week: Part 2 - More on the Ballot Initiative, History of medical marijuana in Santa Clara and more on Angel's Care Collective.