By Joe Tash
A San Diego Superior Court judge Tuesday ordered the closure of Del Mar’s first and only medical marijuana dispensary, just over three months after it opened for business.
Last month the city sued Patrick Kennedy, the owner of the 1105 Cooperative, as the dispensary is called, and the owners of the building on Camino Del Mar where the cooperative is located, seeking to shut the operation down.
At a hearing Tuesday, Judge Judith Hayes issued a temporary restraining order directing that the cooperative be closed immediately. She also set a hearing for Aug. 4, when the city will argue its case for a permanent injunction to put the cooperative out of business, while Kennedy and his attorney seek to have the ruling overturned, which would allow the cooperative to reopen.
“We have to do what a judge told us to do. We respect that. We don’t like it, but we respect it and we’ll have our day in court in two or three weeks,” Kennedy said.
“I’m very sad for all of our patients that depended on us to provide their medication,” said Kennedy, 55, a father of three who also runs a construction and solar energy contracting business. “It’s a huge setback for safe access for medical marijuana patients.”
Since the cooperative opened its doors on April 1, it has signed up 800 members who have recommendations from their doctors to use medical marijuana for a variety of conditions, Kennedy said.
The city has been seeking the closure of the cooperative since the day it opened, when a city planning official hand-delivered a letter to Kennedy, notifying him that his business license was revoked and that the cooperative violated city zoning rules.
Kennedy remained open in defiance of the city’s edict, amassing fines of more than $25,000, according to deputy city attorney Robert Mahlowitz.
The lawsuit filed by the city alleged that Kennedy was operating without a business license, and that he violated city zoning laws. Del Mar’s current zoning laws do not allow medical marijuana dispensaries anywhere in the city.
“He’s just chosen to ignore the city’s laws,” said Mahlowitz.
The city’s lawsuit also named the building’s owners, Junie and Wayne C. Young.
In order to legally operate such a business in Del Mar, Mahlowitz said, Kennedy would have had to go before the city Planning Commission to request a “determination of allowable use.”
But Kennedy said no one at the city asked him to submit such a request; instead, he said, he filled out two different applications for a business license, paid his fees and was told the receipt served as his temporary license. The first business license was subsequently revoked, while the second application is pending.
“I always told them I’d do anything they wanted me to do. The problem was they wanted me to leave town,” Kennedy said.
Because no current zoning category exists for a medical marijuana dispensary in Del Mar, he said, “it’s a ban on medical marijuana.”
The importance of the issue was driven home, he said, the day the city attorney came to the cooperative to deliver the lawsuit papers. Just as the attorney was leaving, Kennedy said, a caregiver wheeled in a patient suffering from prostate cancer. “The irony was unbelievable, the timing, like a sign from God that you should stay the course,” he said.
While he believes he would ultimately win the legal battle, he said the cost of an appeal would be prohibitive, and he may not be able to take the case further than the Aug. 4 hearing before Judge Hayes.
California voters approved Prop. 215 in 1997, allowing patients with conditions ranging from glaucoma to cancer to possess and use marijuana for medicinal purposes. Marijuana’s benefits, according to some patients and caregivers, include relief of nausea and appetite stimulation for cancer patients undergoing radiation and chemotherapy treatments.
Mayor Don Mosier said the city will wait until the current litigation over the 1105 Cooperative is settled before considering an ordinance that allows and regulates medical marijuana dispensaries.
“I think it’s an open issue,” as to whether dispensaries are allowed in the future, he said. Mosier said he has heard both support and opposition on the topic, and that the council would seek the opinions of Del Mar residents before moving forward with such an ordinance.