JUDGE REFUSES TO SHUTTER MARIJUANA DISPENSARY

A judge on Thursday refused San Marcos' request to shut down a medical
marijuana dispensary, a move that comes as the owner of a second,
defunct dispensary has asked the city to let him reopen the shop.

The developments challenge five-year-old city rules banning the
operation of such dispensaries, which Mayor Jim Desmond said the
council adopted to balance conflicts between state and federal laws on
the drug.

"The federal government does not recognize medical marijuana, and the
state does," Desmond said. "And therein lies the struggle for cities
when these dispensaries open up. So until the state and feds figure
out what they want to do, or until they can agree on whether or not
marijuana is legal, the city of San Marcos will not allow medical
marijuana dispensaries."

On Thursday, San Diego Superior Court Judge Thomas Nugent declined the
city's request for a temporary restraining order to shut down Wellness
Tree, a medical marijuana dispensary in a busy shopping center on San
Marcos Boulevard a block or so north of Highway 78.

The Vista-based judge found no urgent need to order Wellness Tree to
close down while the city and the shop owner address their legal
battle over whether the shop should be closed permanently. The next
hearing in the civil case is set for June 3.

The ruling gives Wellness Tree a win in a skirmish, not the entire
battle. San Marcos is still asking the judge to find that Wellness
Tree operates unlawfully and is a public nuisance, and thus should be
shuttered for good.

Wellness Tree owners and their attorneys argue that the city's
ordinance is unlawful. California has legalized medical marijuana,
attorney John J. Murphy said, and state law trumps city ordinances.

"Cities and counties can regulate medical marijuana in their
communities, but they can't ban it," Murphy said. "It is a state law,
and the people of the state passed it."

State voters in 1996 approved marijuana for medical
use.

Last August, the city defended its position on medical marijuana when
it responded to a San Diego County grand jury's finding that its
policy "deprives some qualified marijuana patients of access" to the
drug by saying that state law doesn't require cities "to adopt land
use or zoning regulations regarding distribution of marijuana."

In October, the City Council voted to enforce violations at marijuana
dispensaries through civil measures, not criminal prosecution.

In court documents, the city alleged that Wellness Tree "is a
large-scale marijuana retail sales dispensary, and is not a collective
or cooperative" as envisioned by the state's medical marijuana laws.

Attorney Jacqueline Vinaccia, who represented San Marcos at the
hearing, said the city has, based on the ruling, no immediate leverage
to force the shop to close, even though it continues to operate
without a business license.

"As far as I know, they are still operating," she said.

On Friday, butcher paper covered most of the windows of the shop,
which sits among a strip of storefronts that share a parking lot with
a busy home improvement store. A loud knock on the locked front door
brought out a young man, who said the shop owner was not there.

The battle over Wellness Tree comes only months after the city forced
another shop to shut down. Last September, Superior Court Judge Earl
Maas closed Ron Chang's Medical Marijuana Supply Collective at the
city's request.

A month later, however, Chang applied for a business license for a
new, wholesale operation at 1232 Los Vallecitos Boulevard to sell
"natural and organic health care products and wellness therapies,
including medicinal marijuana."

A city report on Chang's application cites municipal code banning
marijuana dispensaries. But it also says the facility would not
qualify for a license in any case because it violates zoning laws and
began operations before it applied for a business license.

"The denial of the business license application is, therefore, proper,
irrespective of the marijuana component," the report stated.

In his appeal, however, Chang denies that he violated proper
permitting procedure, and said case law on medical marijuana renders
city code against such dispensaries "unconstitutional and
unenforceable."

The council will consider Chang's appeal Tuesday.