NOVATO CANNABIS CLUB STANDING FIRM DESPITE ORDER TO CLOSE

A Novato medical marijuana dispensary ordered with eviction a month
ago is still open for business, and its lawyer expects it to be open
for a long time to come.

That's great news for the almost 600 clients who have come to rely on
the Apela Collective for relief since it opened without city
officials' knowledge on Jan. 15.

"All I've been hearing is, 'Thank God you're here,'" said Apela
Collective manager Elizabeth Harris. "I have had little old ladies
coming in almost in tears because they couldn't get over to Oakland
or San Francisco or even to Fairfax to buy what we offer."

The dispensary has been quietly operating in the Ignacio Center on
Entrada Drive. It is one of three medical marijuana collectives in
Marin, including the 13-year-old Marin Alliance in Fairfax and the
upstart Going Green, which opened last month in Corte Madera. A
Sausalito pot club that opened last year recently closed.

The Novato operation was served a notice of eviction on May 5 by the
property owner, Ignacio Properties, which said Apela was in violation
of local and federal laws and was considered a nuisance. Since then
the city and Apela Collective attorney Edward Higginbotham have
traded letters seeking to understand each other's stances.

Higginbotham has filed a technical legal challenge because he said
the complaint is confusing. It will be heard in Marin Superior Court
on June 29.

"They allege evidence of nuisance, but I made a records request
through the city about any police reports or complaints against us
and they told me there hadn't been any," Higginbotham said. "I'm
confident we're in good standing."

Vincent DeMartini, the San Rafael attorney who represents Ignacio
Properties, said the lease signed by Apela Collective mentions
nothing about selling medicinal marijuana. The lease states that the
business planned to operate as a retail herb store.

"The issue here is not whether medicinal marijuana is a good thing;
the issue is a landlord-tenant issue," he said. "The appearance when
you read the lease, at least the understanding of the landlord, is
that this would be some type of holistic medicine and health
products, not medicinal marijuana."

Harris said about 450 of her clients have signed a petition
supporting the pot club. Every Apela client is required to show
paperwork from a doctor showing that use of medical marijuana has
been approved, Harris said. Doctors' offices are called to verify the notes.

A few times, teens have had to be chased away from the business. A
window was broken shortly after it opened. Otherwise, Harris said
there haven't been any problems.

But now there are problems, because the city did not know Apela
Collective was open until late April when a resident notified city
staff. Although Novato does not have a zoning moratorium on medical
marijuana collectives, it has an ordinance that prohibits land use
that is not in compliance with state or federal law.

As of 1996, state law allows for possession and cultivation of
marijuana for medical purposes by patients who obtain doctor
approval. But according to federal law, possession of marijuana is a
misdemeanor and cultivation a felony.

Novato City Attorney Jeff Walter said a business does not have to
prompt letters or voice mails of public complaints to be considered a
"nuisance per se" and thus a violation of the law. He cites a
doctrine that says any violation of city code is a "nuisance per se,"
and therefore illegal.

In the Apela situation, the lease with Ignacio Properties says the
business is operating as a retail herb store. The city's stance is
that it wasn't full disclosure and constitutes misrepresentation, and
it contends that Ignacio Properties should shut down Apela because
the breach of its lease constitutes a nuisance, making it illegal.

Higginbotham maintains that there is nothing specific about what the
dispensary has done to break the law.

"It's like they're making this up," Higginbotham said. "They do not
articulate any further in the complaint. The word is that (the city)
told the property owner to evict Apela or there would be problems,
but just because the city says it's a problem doesn't mean that there
is a problem."

Lynette Shaw, who operates the 5,000-client Marin Alliance in
Fairfax, said the reason her collective has survived for 13 years is
because she sat down with the police chief, the Planning Commission
and Town Council members to find out what rules she needed to follow.
She has a business license and a use permit and said she does not
support medical marijuana dispensaries that don't fully disclose
their intentions with local authorities.

"If other municipalities wanted to step up to the plate, they should
be contacting me and the town of Fairfax for advice," Shaw said.
"What we have is a model, and I think it's actually the model for the
whole nation. E We've managed to hold our head up and provide a
wonderful service to people who need help and get them through their
personal crisis."

Going Green in Corte Madera has been open since early May, but a town
official said authorities weren't aware of it until this week.

Gate Five Caregivers in Sausalito, which opened late last year,
recently shut down because of several break-ins. Sausalito Chief of
Police Scott Paulin said the city had issued notice that Gate Five
was in violation of a city moratorium against medical marijuana
collectives, but it shut down on its own.

Higginbotham predicts that Apela Collective will stay open and that
an eviction would prompt a jury trial.

"If we lose, we lose," he said.