COUNTY TAKES POT DISPENSARY TO COURT

Dispensary Argues It Does Not Need A Conditional Use Permit

Is a medical marijuana dispensary a store?

The answer to this question may well determine the fate of the
Hummingbird Healing Center, a medical marijuana dispensary in
Myrtletown, just outside of Eureka city limits, that has been
operating since last year without a county-issued conditional use permit.

Humboldt County -- arguing that the center needs a conditional use
permit to operate legally -- is now seeking a preliminary injunction
from a Humboldt County Superior Court judge to force the center to
close its doors until it procures a permit or the court finds it does
not need one. Preliminary injunctions are court orders made at the
request of one party that prevents another party from pursuing a
course of action until a conclusion of a trial on the merits of the case.

Wednesday, both sides offered oral arguments before Judge Dale
Reinholtsen, and it seems the issue may not be as cut-and dried as
many may think.

For the county, Deputy County Counsel Davina Smith argued that the
court should issue the injunction because medical marijuana
dispensaries are not a principally permitted use in any zoning
designation in Humboldt County, and consequently require a
conditional use permit issued by the Humboldt County Planning
Commission, as per county code. County code currently says nothing
about medical marijuana dispensaries, Smith said.

"If it's not specifically enumerated (in the code), you need a
conditional use permit," Smith said.

Chris Johnson Hamer, representing the Hummingbird Healing Center,
argued that there is simply no need for the center to pursue a
conditional use permit from the county, as it is a principally permitted use.

"At the least, a medical marijuana dispensary is a store," Hamer
said. "This is a store that sells medical marijuana."

County Code Section 314-2.1 outlines the principally permitted uses
for a neighborhood commercial zone within the county, the same zoning
designation shared by the Myrtletown shopping center that houses the
Hummingbird Healing Center. The code states that principally
permitted uses are "stores, agencies and services of a light
commercial character, conducted entirely within an enclosed building,
such as antique shops, art galleries, retail bakeries, banks, barber
shops ... drug stores ... food markets."

Further, Hamer argued that the law is vague, and therefore
unconstitutional because it could serve to entrap the innocent.

"There is nothing to lead a person of ordinary intelligence to
believe that a medical marijuana dispensary would not be permitted in
the (neighborhood commercial) zone," Hamer said, adding that the
county code leaves too much room for discrimination. "There's no
notice that if you have a store that sells medical marijuana, that's
somehow different than a store that sells anything else."

Hamer also argued that granting the preliminary injunction would
irreparably harm her clients, putting the center out of business, and
that no judgment should be made until the county's case against her
clients can be fully adjudicated.

In questioning the attorneys, Reinholtsen seemed to seize on the
question of whether a medical marijuana dispensary is, legally, any
different than a store.

"Why is a store that distributes marijuana legally different than a
drug store?" Reinholtsen asked.

Reinholtsen then turned his attention to the use of the phrase "such
as" in the county code, pointing out that the phrase is usually used
to offer examples, not to enumerate an exclusive list.

"It seems to me that's very vague," Reinholtsen said, before asking
Smith if a store selling computers would be required to get a
conditional use permit because it is not specifically listed as a
principally permitted use under the code.

Smith maintained that if it's not specifically listed, a conditional
use permit would be required.

"I would suggest to the court that if you wanted to open your
computer store in the (commercial neighborhood) zone, you would have
to go to the Planning Commission and make your case."

Reinholtsen took the matter under submission, and said he hopes to
issue a ruling by the end of next week.