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BY JAMES BURGER Californian staff writer email@example.com
A judge's decision to strike down Kern County's medical marijuana dispensary law may generate more litigation than it settled.
Now that voter-approved Measure G has been invalidated, county officials are likely to start trying to shut down the handful of collectives and cooperatives operating in unincorporated Kern.
The Bakersfield City Council approved a ban on medical marijuana dispensaries in the city last summer.
The group Concerned Citizens of Bakersfield sued the city July 29 -- days before the ordinance took effect -- alleging it violated the California Environmental Quality Act by not doing an environmental review before adopting the ordinance.
City Attorney Ginny Gennaro has said city officials filed a Notice of Exemption from CEQA, believing a CEQA analysis was not needed.
The case -- which like the lawsuit against Measure G is being argued by Channel Law Group's Jamie Hall and heard by Kern County Superior Court Judge Kenneth C. Twisselman -- returns to court April 14 for a hearing on whether the city's ordinance should be invalidated.
Associate City Attorney Richard Iger said Thursday the city's path to a medical marijuana ban had far fewer twists and turns than the county's road to Measure G.
Iger said Bakersfield simply clarified an existing 2004 resolution banning dispensaries -- and therefore the environmental impact of its ordinance is next to nothing.
"We didn't really change anything. Dispensaries have just always been banned in Bakersfield," Iger said. "We started with a ban and stuck with a ban. Our case is different because we're saying nothing changed."
They believe the absence of a law permitting dispensaries makes any that are open illegal.
But supporters of the medical marijuana community disagree with that analysis, setting up the potential for a lot more legal conflict.
"I think there are going to be a number of lawsuits," said local attorney Phil Ganong, who has represented many medical marijuana groups in court and before the Kern County Board of Supervisors.
Measure G, approved by voters in June 2012, tightly restricted where medical marijuana dispensaries could open in unincorporated Kern.
They had to be in industrial zones more than one mile from schools, churches, day care centers, parks and other sensitive uses.
Since the law took effect, the number of shops in the county's jurisdiction dropped from an estimated 45 to five -- only one of which was legal under Measure G.
In a lawsuit brought by a dispensary, Kern County Superior Court Judge Kenneth C. Twisselman ruled last Friday that Measure G shouldn't stand because the county didn't properly investigate whether the law would harm the environment.
County attorneys take invalidation to mean dispensaries aren't allowed at all now. Kern County Supervisor Mick Gleason said he'll advocate for trying to shut down the estimated five remaining ones.
"We're going to have to make a decision now about what we're going to do with (shops). Do we abate them or do we file civil cases against them?" he said. "I think that if they're not legal, if they don't have authorization, then I'll be looking for a way to appropriately disband them."
There was surprise in the medical marijuana community that the death of Measure G didn't clear the way for more shops.
There used to be a county ordinance that allowed dispensaries as long as they were more than 1,000 feet from a school. But supervisors eliminated it in August 2011 when they approved an outright ban on dispensaries.
When they repealed the ban in favor of creating Measure G on Feb. 21, 2012, they essentially stripped the county's land zoning ordinance of any mention of medical marijuana shops or "dispensaries."
Now -- because the shops are not specifically mentioned -- they are prohibited, said Kern County Counsel Theresa Goldner.
"There is no permitted use that allows a dispensary to distribute marijuana in the county," Goldner said.
Ganong, the local attorney, disagrees with Goldner's position.
He maintains the collectives and cooperatives have the right to operate "absent any affirmative zoning ordinance by the county to expressly and explictly" restrict their operation.
The upshot, Ganong said, is that the county and the cooperatives are likely to end up in court.
"It's going to result in a ton of money being spent by the county to defend its position," he said.
Supervisor Mike Maggard, who spearheaded the campaign to ban or limit the shops back in 2011, said the county will defend its position.
The county could even take action against the Highway 99 Collective near Meadows Field -- the one collective approved by Kern County under Measure G.
Officials at the shop hung up on a reporter who called. Voice mail messages left asking for comment about the situation were not returned.
If other shops take the fall of Measure G as a sign to swing back into business, county officials said, they will get an aggressive reception.
"We have ordinances in place that call for compliance," Maggard said. "We'll deal with those who try to violate them as they come up."
Next week, Goldner will meet with the full Board of Supervisors in closed session to discuss enforcement options, Gleason said.
Goldner said the county can't appeal Twisselman's ruling on Measure G until the underlying court case that spawned his decision is complete.
In the meantime, the county has some options to pursue to deal with dispensaries, she said.
The county can "abate" the shops -- issue notices of violation and hit the shops with hefty fines and penalties to pressure them into compliance.
That is how the county has handled dispensaries under Measure G.
Or the county could file court cases against the shops and get court orders that would force them to close.
"The board will have to give us some direction about how they wish to proceed in terms of enforcement," Goldner said.
Ganong said a raft of new lawsuits could drain money from county coffers.
"The benefit to the community will certainly outweigh the costs," Goldner said.
Ganong thinks the county has another option: pool its best minds and meet with medical marijuana patients, providers and opponents and come up with a regulation that controls where the shops can be but allows them to exist.
It's something he's been pushing for years -- without much response from the county.
"We need a political solution that is a compromise," Ganong said. But "these are not people that are interested in compromise."