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Dana Point Never Inspected Shut-Down Pot Shops, Owners Say

Daily Dose 2011-02-16 0 comments

By Brittany Levine | Published in The Orange County Register

The city of Dana Point shut down Beach Cities Collective at 26841 Calle Hermosa, run by founders David Lambert, left, and Tim Louch.

Attorneys for two medical-marijuana dispensaries say Dana Point officials violated the owners’ rights to due ¬†process by not inspecting the shops before shutting them down and disconnecting their utilities two weeks ¬†ago.

Beach Cities Collective and Holistic Health argued their case at a city appeals hearing Friday at Dana Point  City Hall. After listening to the shops and city officials present their sides for six hours, retired Orange County  Judge Jim Smith, acting as a hearing official, ended the meeting and is expected to announce a decision this  week after reviewing the evidence.

The city red-tagged those dispensaries and The Point Alternative Care on Jan. 24, about 10 days after sending  letters to the shops warning of possible closures if a variety of building-code violations were not fixed.

City Attorney Patrick Munoz said officials did not need to enter the dispensaries to know they were violating city rules. A building official and the city attorney said they discovered in court documents that dispensary owners had admitted to code violations.

During Friday’s appeals hearing, shop owners admitted to some of the violations cited by the city.

Beach Cities lacked a certificate of occupancy and used an unlicensed contractor to build an interior wall without proper permits.

Holistic Health had safety issues related to electrical wiring and to locked doors that prevented easy entrance in case of emergency.

The shop owners and attorneys drew distinctions between minor and major code violations, arguing that red-tagging and shutting off power are steps typically taken in an emergency.

But Smith did not make such a distinction, saying, “It’s either a violation or it’s not.”

Holistic Health had a certificate of occupancy, but it was revoked when the city shut it down. The certificate said Holistic Health sells “vitamins, supplements, sports drinks, herbs and teas and other health-related products.” The city contends the business changed to medical-marijuana sales without updating the certificate.

Shop owner Garrison Williams disagreed, saying he believes marijuana falls under “other health-related products.”

As for wiring issues, “you can go into any business in this town and find a power strip with a telephone … and other wires plugged in,” Williams said. “There’s no permit required for any of these things. If there is, every single business in this town is in violation and you better start red-tagging them.”

Both dispensaries said they offered the city an opportunity to inspect their buildings before the closures to put to rest accusations that they considered false. Holistic Health did not receive a response. Beach Cities could not receive an inspection without a certificate of occupancy, said Mark Sutton, a building official. It has since applied for the certificate.

“I don’t understand why the building had to be red-tagged,” said Allison Adams, Holistic Health attorney. “I don’t understand why Mr. Williams and his patients had to be denied access. I don’t understand why we need to be here. A phone call back, an inspection, a visit, a little honesty, a little respect from the city for its citizens and we could have avoided this.”

The city asked Smith to deny the appeals but give the dispensaries the opportunity to reopen if they file new permit and certificate-of-occupancy applications for approval by city staff. The city code does not mention medical marijuana in its zoning rules, and by omission, the drug’s sale is technically banned. However, Munoz said the zoning issue would be “taken off the table,” as it is being decided in court.

A typical permit application takes up to 30 days to review.

“It’s not going to be overnight,” Munoz said.

Munoz maintained that the closures were not about marijuana. But Jeffrey Schwartz, attorney for Beach Cities Collective, called the action a “witch hunt on medical-marijuana dispensaries.”

“It’s simply a means of managing the medical-marijuana problems the city has been ineffective in managing in the courts,” Schwartz said.

According to a staff report prepared for the hearing, the city does not consider marijuana sales appropriate, as they “create adverse public-safety conditions including loitering and potential gang and other criminal activity due to the cash/drug nature of the business.”

Dispensary owners and their clients disagree.

The city has filed lawsuits in Orange County Superior Court intended to close the dispensaries. Last year the dispensaries won a California Supreme Court case, allowing them to appeal a lower court’s decision that granted the city the right to subpoena a variety of records, including financial documents and clients’ identities.

The day Dana Point red-tagged the dispensaries, Munoz announced the city was withdrawing its call for documents. He said the timing was coincidental. The court’s decision about the records is still intact, however, and at least one dispensary said it would not withdraw its appeal. In the past 18 months, the city has spent about $370,000 in legal costs related to medical marijuana.