A newly appointed judge heard arguments about Gilroy’s zoning
rules during a sparsely attended hearing Thursday and will decide
whether to shut down the city’s medical marijuana dispensary run by
two Morgan Hill men.
A newly appointed judge heard arguments about Gilroy’s zoning rules during a sparsely attended hearing Thursday and will decide whether to shut down the city’s medical marijuana dispensary run by two Morgan Hill men.
Judge Kevin McKenney will decide within 90 days whether to grant the city a “summary judgment,” which would indicate that no legal facts are in dispute. If that happens, the city would be granted a permanent injunction to shut down MediLeaf, which has been open in west Gilroy for nearly eight months.
McKenney replaces Judge Kevin Murphy, who denied the city a preliminary injunction against MediLeaf in December.
“One can’t speculate on what’s going to happen,” said Berliner-Cohen attorney Andy Faber, who is representing the city.
MediLeaf opened without a business license at 1321 First St. near Togo’s Nov. 9 after the City Council rejected an ordinance to regulate such operations. The cannabis club sells more than 20 varieties. It has acquired more than 4,000 members since opening, according to its directors.
MediLeaf representatives have maintained that the dispensary uses a not-for-profit model and therefore does not require a business license. City officials say that is not the case, claiming that dispensary directors knowingly defied city zoning laws.
On Dec. 15, Judge Murphy listed three reasons for not granting the city a injunction. First, he said the dispensary would not cause “irreparable harm” by staying open. Secondly, he said it was not clear whether the city would prevail when the matter goes to trial. Finally, he said Gilroy’s City Council committed a Brown Act violation when it approved a resolution in a Nov. 16 closed session that allowed city attorneys to take legal action against the dispensary. The council corrected that violation in December by approving the resolution in open session.
McKenney did not bring up any aspect of Murphy’s previous decision while presiding Thursday.
Unlike the December hearing, which attracted about 30 people, the courtroom in San Jose’s Old Court House was largely empty Thursday. Police Chief Denise Turner, dressed in police blues, sat in the audience to listen to the attorneys’ arguments. Turner has voiced her opposition to an ordinance that would regulate dispensaries. MediLeaf director Batzi Kuburovich, who was often on the edge of his seat, was also present as was Gilroy’s anti-marijuana community activist Ron Kirkish.
McKenney kicked off the 20-minute hearing by asking MediLeaf attorney James Roberts to explain why he felt the situation in Gilroy was different than a case in the Southern California city of Claremont, in which a judge upheld a ban on medical marijuana dispensaries. Then McKenney mostly remained silent, while Roberts and Faber argued back and forth.
In the 2009 case of Kruse vs. Claremont, a judge reinforced an injunction barring Darrell Kruse and Claremont All Natural Nutrition Aids Buyers Information Service – or CANNABIS – from operating a dispensary within the city of Claremont. In the 2008 case of Corona vs. Ronald Naulls, a judge issued a preliminary injunction that prevented a medical marijuana dispensary from continuing operations in the city of Corona.
Roberts said the situation in Gilroy was different because Claremont had much more specific zoning regulations that outline where certain businesses can exist.
He also said it was different from a case in the southern California city of Corona because that city had a specific plan ordinance in place while Gilroy did not.
Gilroy had an opportunity to approve an ordinance that would have regulated medical marijuana dispensaries, but that never happened, Roberts said. Although the city ultimately decided to approve a moratorium on medical cannabis dispensaries, that did not happen until after MediLeaf had opened, Roberts said.
“(The city) had an opportunity to come through if they wanted to regulate this form of business,” Roberts said.
Meanwhile, Faber said both the cases in Corona and Claremont were almost identical to the case in Gilroy.
“I think that both Naulls and Kruse are 100 percent on point to the Gilroy situation,” Faber said in reference to the Corona and Claremont cases.
MediLeaf tried to get approval from the city, but the city denied the ordinance that would have allowed that to happen, Faber said.
Both attorneys, donned in three-piece suits, crossed their arms at times while their opponents made their case. Roberts occasionally would take off his glasses and wave them about while making his point.
McKenney ultimately told the attorneys that he would issue an order in response, but he did not indicate when that may happen.
Although McKenney has up to 90 days to do that, Faber said judges typically respond sooner.
If the judge approves the summary judgment, City Administrator Tom Haglund said Thursday that the city would consult with the city attorney to determine how to enforce the order. If the judge denies the city’s request, then the city will seek a trial, Faber said.
If a judge approves an order, MediLeaf could appeal the decision, Faber said.
MediLeaf has contributed sales tax dollars to the city, but City Finance Director Christina Turner said this week that the city does not reveal tax information about specific businesses.
Kuburovich, one of MediLeaf’s directors, said the dispensary has helped stimulate the economy and has elicited no complaints from police.
The cannabis club also has set up shop in two locations in San Jose and is working with the city of Sunnyvale to open there.
Kuburovich said he looks forward to continuing to operate in Gilroy as well.
“We’re happy to be open seven days a week to serve our patients,” Kuburovich said.
