MediPot Groups Say County Changed the Rules
By REBEKAH KEARN
Kern County Pharmacy Collective and the DASA Green River Collective dba the Antelope Valley Diamond Collective sued Kern County in Superior Court. They say they set up their businesses under state and local law, only to see Kern County change the rules on them.
A third dispensary filed a separate complaint against Kern County, seeking return of $280,000 in fines.
In the first complaint, the two collectives say they operate in unincorporated areas of Kern County and sell medical marijuana only to people who have valid ID cards and a doctor’s prescription.
Marijuana is prescribed to alleviate symptoms of several illnesses, including cancer, AIDS and anorexia nervosa.
Kern County passed an ordinance in 2009 removing restrictions on where medical marijuana dispensaries could operate. Under the new ordinance, dispensaries could operate anywhere in unincorporated areas except within 1,000 feet of a school.
In light of these new regulations, the collectives say, they applied for and received building permits to build medical marijuana dispensaries in 2010.
Kern County Pharmacy Collective says it spent $62,243, “to plan and the necessary improvements” for its dispensary, while DASA says it spent $35,870 on its facility.
But on Aug. 9, 2011, the county adopted two new ordinances: one banning cultivation of medical marijuana, and the other banning marijuana collectives from unincorporated areas, to take effect 30 days after adoption.
Before the second ordinance took effect, the dispensaries say, “a referendum drive collected enough signatures of voters in Kern County to suspend four of the sections … banning medical marijuana collectives, banning edibles containing medical marijuana and declaring medical marijuana collectives to be a public nuisance subject to abatement.”
In response, the county added Measure G to the June 5, 2012 primary ballot, proposing restrictions on where and how medical marijuana dispensaries could operate.
County voters approved it. Measure G prevents medical marijuana dispensaries from operating within 1 mile of “schools, daycare centers, parks, churches, and other medical marijuana dispensaries,” requires dispensaries to submit site plans for county approval, and allows the county to impose administrative penalties and “criminal sanctions of up to six (6) months imprisonment for violating any provision of the ordinance,” according to the complaint.
The collectives claim the real purpose of Measure G was to “ban collectives entirely.”
Though the measure did not specifically ban collectives, the plaintiffs say, it “was a clever de facto prohibition by leaving only a tiny portion of land feasible for relocation, which are in the industrial outskirts of Kern County.”
The plaintiffs say the county granted them permits to operate before Measure G was adopted, and they have obeyed all state and local laws since they opened for business.
“Notwithstanding DASA and KCPC’s compliance with these laws, on July 12, 2012, County Code Compliance Division issued a 24-hour notice and Order to Abate to DASA and KCPC to be a public nuisances [sic] pursuant to an administrative penalty,” the complaint states.
The collectives say they filed claims with the county, but the county failed to respond.
Almost 2 months later, the collectives received notices scheduling hearings on their appeals.
The county found on Nov. 6 that “DASA is a nuisance and order[ed] it to pay an administrative penalty of fifty-thousand dollars ($50,000) and an additional penalty of one thousand dollars ($1,000) for each day the property remains out of compliance,” the complaint states.
The county ordered Kern Pharmacy to pay similar penalties at a Dec. 4 hearing.
The dispensaries say these fines “constitute criminal sanctions” against them.
“As part of county’s attempts to prevent plaintiffs from operating as described herein, county has issued administrative fines, including post-appeal fines against both the landlords of the DASA premises and the KCPC premises. As a direct result of these fines and other pressure from county, on November 13, 2012, KCPC’s landlord, Bakersfield Mountain View Bravo, LLC (‘BMVB’) filed an unlawful detainer action against KCPC,” the complaint states.
If it is evicted, Kern Pharmacy says, its members “will incur irreparable harm because they will: (1) lose the ability to operate as described herein … and (2) be forced to acquire marijuana from illegal criminal enterprises subjecting them to criminal sanctions and risks to their personal safety.”
The collectives say that Measure G violates their right to due process, and “constitutes a taking of property without compensation, as it shuts down retroactively a lawful use expressly permitted by county, without an adequate amortization period or compensation.”
They seek compensatory and punitive damages, a writ of mandate voiding Measure G, want the county enjoined from enforcing Measure G against them.
They are represented by David Welch, of Los Angeles.
In a separate complaint in the same court, Green Coast Cooperative asked the court to prevent Kern County from enforcing public nuisance actions against it, and to order the county to repay it $280,000 in fines.