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Banned marijuana dispensary to petition for rehearing

City attorney says it’s unlikely to be granted
By: Jon Schultz, Journal Staff Writer
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A former Auburn medical marijuana dispensary will be petitioning for a rehearing of its case after an appeals court ruling upheld a ban of its operation.

Richard Miller, owner of Blooms & Blossoms, is seeking to have the 3rd District Appellate Court reopen his appeal, Miller’s attorney Ken Brock said, to allow further discussion and briefing to be heard on whether the trial court’s decision to issue a preliminary injunction was valid.

“The ruling contained a significant number of mistakes,” Brock said in a written statement. “The most obvious is the fact that it just isn’t legally-possible for the City to license something which it claims is prohibited.” 

In Justice Elena J. Duarte’s written opinion, she said Miller violated the city’s business license ordinance, because on his application for 250 Lincoln Way the business was described as a “florist; variety shop,” when it was later found to be running as a medical marijuana dispensary.

“We disagree that the dispensary ban forgives dishonesty in the license application,” Duarte wrote. “Like the trial court, we do not endorse subterfuge.”

Duarte wrote that the court declined to broach the issue of whether local governments can ban dispensaries, because the city had cause for an injunction on the business license violation alone.

“What the trial court and the court of appeal both said they should have done was to have been honest on their application, and if we denied it, then sued to get that overturned,” Auburn City Attorney Michael Colantuono said.

Miller’s principal argument challenged Auburn’s ban of medical marijuana dispensaries – which was enacted six years ago – because of existing state medical marijuana laws, including the Compassionate Use Act and Medical Marijuana Program, Duarte wrote.

Local governments’ authority to ban marijuana dispensaries is the subject of the City of Riverside’s lawsuit in the California Supreme Court. Even if the Supreme Court’s pending decision on that case invalidated local bans, that would not cure Miller’s license violation, Duarte wrote.

Brock took issue with the timing of the appeals court’s ruling.

“The decision was … deliberately delayed until after this Tuesday (Feb. 5) – when oral arguments in similar cases currently before the Supreme Court had already been submitted – so the Supreme Court would be unable to take it under review,” he wrote.

Colantuono said the Supreme Court has made it “pretty clear” that the justices are “sympathetic with local control” on the issue. He said he hopes its decision within 90 days, “will put this matter to bed, so the city doesn’t have to spend any more money to keep this use out of its historic downtown.”

The city had spent about $68,000 on legal fees related to the Blooms & Blossoms case through October 2012.

Miller did not claim Auburn’s business license ordinance is invalid and failed “to head and argue an attack” on the trial court’s finding that he violated the ordinance, she wrote.

“Miller does not claim Auburn’s business license ordinance is itself invalid, and fails to head and argue an attack on the trial court’s finding as to his violation of the business license ordinance, thereby forfeiting any such claim,” the court said.

Preliminary injunctions are issued to preserve the status quo while minimizing “the harm which an erroneous interim decision may cause,” so the trial court will consider whether granting one would cause either party irreparable harm pending trial, according to the ruling.

Miller attempted to show the closure of his dispensary would cause harm both financially and to his members, but his evidence did not back up his claims, Duarte wrote.

Regarding Brock’s statement that his client will be petitioning for a rehearing, Colantuono said those petitions are “very infrequently” granted.

“They are so routinely rejected that the rules don’t even allow us to reply to the petition unless the court asks us to,” Colantuono said. “Given the way the court of appeals decided this case, I think it’s extremely unlikely the Supreme Court would have interest in it.”

Brock acknowledged such a request being granted it is rare, but said he feels it has as good of a chance to succeed as they did to have the trial court’s decision overturned.

Colantuono said, in his “professional opinion,” requesting a rehearing is a waste of their time and the court’s time.

 

Jon Schultz can be reached at jons@goldcountrymedia.com. Follow him on Twitter @Jon_AJNews