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Judge rules L.A.'s ban on new medical marijuana dispensaries is invalid

The Superior Court judge's decision undermines the city's 4-month-old drive to shut down hundreds of the stores.

October 20, 2009|John Hoeffel

In court Monday, the city argued that the council did not need to comply with a state law that requires certain steps to extend a zoning moratorium. Burge argued that it was a public safety, rather than a zoning, moratorium. Zoning moratoriums cannot be extended beyond 24 months. Chalfant quickly dispensed with that theory.

"Although there may be overtones of public safety," he said, "this is a zoning issue."

Besides failing to adhere to state law when it extended the ban, the city also failed to enforce it.

Hundreds of dispensaries filed applications for hardship exemptions from the moratorium, and many opened without permission. The City Council began to deny those requests this summer, which allowed city officials to file civil or criminal charges. None have been filed, however, and Berger said the city attorney's office now will not file charges until there is a permanent ordinance.

Green Oasis, which is on Jefferson Boulevard just west of the 405 Freeway, sought a hardship exemption in April and opened in May, without waiting for the City Council to act on the request. In July, the City Council denied the exemption. The city attorney's office notified Green Oasis that its operators faced civil and criminal violations, including a $1,000 fine and six months in jail. The dispensary sued last month.

Dan Lutz, a co-owner of Green Oasis, said he was relieved by the decision but wished he was not in an adversarial stance with the city. "A lot of the collectives out there are wanting to do a good job and provide a valuable service for the community, and we're actually surprised that we're in this position in L.A.," he said.

Lutz's dispensary was in the city's sights even before he filed suit.

An undercover narcotics officer visited at least twice, according to a declaration Officer Brent Olsen filed with the court. On Sept. 2, he said he handed over his identification and doctor's recommendation and filled out a form. Buzzed into an interior room, he said he was told there were 60 strains available. He paid $58 for one-eighth of an ounce of marijuana. On Sept. 10, he paid $55 for another eighth.

"It is my opinion that the dispensary is being used to sell marijuana," Olsen said in the declaration. He noted that he had not participated as a member of a collective or in any collective cultivation.

Lutz could also be in jeopardy on other grounds. The city attorney's office says the dispensary failed to obtain a building permit or a certificate of occupancy.

"They could come after us for many things," Lutz said. "What can we do?"


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