The night of Nov. 3, 2015, was a long one for the SLO County Board of Supervisors. Their chambers were packed with county residents who’d come to make their pleas on the issue at hand. Some appealed to logic, citing facts, studies, and other data. Others tried to appeal to their emotions, laying out personal stories to try and sway the supervisors one way or the other.
When all was said and done, a divided board voted 3-2 to deny a proposed plan to open a 2,363 square-foot brick-and-mortar medical marijuana dispensary 3 miles south of Nipomo. The decision reversed the vote of the SLO County Planning Commission, which had previously approved the project.
“I think we’re gonna get sued, and that may not be a bad thing,” mused 3rd District Supervisor Adam Hill, who voted against denying the project.
About two months later—on Jan. 4, 2016—that’s exactly what happened. Ethnobotanica, a nonprofit medical marijuana collective, filed a lawsuit in SLO County Superior Court. The lawsuit called on the court to repeal the supervisors’ decision to deny the minor use permit necessary to move forward with the dispensary.
It’s been just more than a year since the Board of Supervisors took its vote, and the case has been slowly working its way along the civil court process. And while it’s by no means over, the most recent development in the case may bode well for Ethnobotanica and medical marijuana users hoping to get their medicine from a physical location within the county.
In a tentative ruling Dec. 5, Superior Court Judge Barry LaBarbera appeared to lean toward ruling in favor of Ethnobotanica, casting doubts on many of the arguments the county used to defend the board’s rejection of the permit. LaBarbera issued the tentative ruling after reviewing lengthy, in-depth briefs and rebuttals submitted by the attorneys representing both sides.
LaBarbera’s ruling tackled a number of issues, including the county’s claim that allowing the dispensary, which would be located in a business park on Hutton Road, would compromise the safety of the public. During the November 2015 hearing, the supervisors heard testimony from law enforcement officials, including SLO County Sheriff Ian Parkinson, District Attorney Dan Dow, and Santa Maria Police Chief Ralph Martin. All three men opposed allowing the dispensary, claiming that it would lead to an increase in crime.
“You can’t argue that those are not reliable people,” Assistant County Counsel Tim McNulty said at the Dec. 5, hearing before LaBarbera.
But LaBarbera’s tentative ruling questioned how law enforcement officials and the supervisors came to their conclusion about safety. It noted that the evidence used to back up that opposition included letters from residents citing “isolated” and “unsubstantiated” incidents, as well as some studies that supposedly linked marijuana dispensaries to crime, which the board argued were “relevant and supportive” of its denial. In the ruling, however, LaBarbera noted that the studies referenced by Parkinson, Martin, and others were not included as part of the record before the board.
“In addition, the record references three robberies of dispensary locations, but there is no evidence that such were an increased risk above any cash business,” LaBarbera said.
Babak Naficy, the attorney representing Ethnobotanica, accused the supervisors of abusing their discretion, claiming that Ethnobotanica had met all of the county’s requirements for opening a brick-and-mortar dispensary. At the hearing, he characterized the denial as part of a larger effort to keep marijuana out of the county, rather than making sure such businesses meet the regulatory requirements that allow them to operate legally.
“There seems to be this vested interest in attacking marijuana dispensaries, and marijuana in general,” he said.
Naficy also took aim at the arguments put forth by law enforcement at the November 2015 hearing, calling Parkinson’s claims “uncorroborated” and Dow’s testimony, which focused on marijuana-related robberies in residential homes, “irrelevant.” He indicated that the board relied on unsubstantiated and anecdotal claims to deny the project.
“Their basis for that opinion is other opinions,” Naficy said.
At the hearing, LaBarbera indicated he would make a final ruling later in the week. While the tentative ruling may indicate that the county could be on the losing end of the suit, it appears to be sticking to its guns.
“I feel like the court’s trying to make this decision instead of letting the board make it,” McNulty told LaBarbera.
Speaking to New Times, Naficy said he was feeling very confident that LaBarbera’s final ruling would favor his clients. If it does, he said he believes the county should allow Ethnobotanica to move forward.
“The Planning Commission’s decision to issue the permit should become final, and [Ethnobotanica] should be able to proceed with their business,” he said.
Staff Writer Chris McGuinness can be reached at email@example.com, or on Twitter at @CWMcGuinness.