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Appeals court ruling upholds Auburn pot shop ban

‘We do not endorse subterfuge’
By: Jon Schultz, Journal Staff Writer
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An appeals court ruled Thursday to uphold the ban of an Auburn medical marijuana dispensary on the basis of a business license violation.

Because Blooms & Blossoms said in its application that it was operating as a “variety store; florist shop” and later was discovered to be selling medical marijuana, its owner Richard Miller committed a nuisance to the city’s business license ordinance, the court ruled.

The 3rd District Appellate Court in Sacramento affirmed the Placer County Superior Court’s August 2011 decision to grant the city a preliminary injunction prohibiting Miller from operating the medical marijuana dispensary.

“Miller faults Auburn for choosing to ban, rather than regulate, dispensaries,” according to Justice Elena J. Duarte’s written opinion. “Miller uses Auburn’s failure to regulate dispensaries as an invitation to open a dispensary by subterfuge, reasoning it would have been futile for Miller to have been honest in his sworn statement.

“We disagree that the dispensary ban forgives dishonesty in the license application. Like the trial court, we do not endorse subterfuge.”

Miller’s attorney David Brock had no comment when reached Thursday.

City Attorney Michael Colantuono said he’s “very happy” with the result.

The ruling also orders Miller to pay Auburn’s costs of the appeal, which Colantuono said does not include attorney fees and would likely amount to a few thousand dollars.

The case has been in the appeals process since November 2011, and the city had spent about $68,000 on it through October 2012. Colantuono said Auburn is entitled to ask the trial court to order the dispensary company to pay all the city’s costs to abate the nuisance, including legal fees, and he will consult City Council on Monday about whether to pursue that.

“There may not be anybody to collect from, because the dispensary is a corporation (Sierra Patient & Caregiver Exchange, Inc.) that probably has no assets, and the principal of the dispensary, Richard Miller, has told us he’s in bankruptcy.”

The shop at 750 Lincoln Way shut down a month prior to the superior court’s ruling after the city obtained a temporary restraining order.

The city learned Blooms & Blossoms had been operating as a dispensary when an undercover Auburn police officer bought one-eighth of an ounce of marijuana there in June 2011 – two months after the store obtained its business license, according to court records.

Auburn banned medical marijuana dispensaries six years ago.

 

Jon Schultz can be reached at jons@goldcountrymedia.com. Follow him on Twitter @Jon_AJNews