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HomeMy WebLinkAboutMINUTES - 01162007 - D.3 TO: BOARD OF SUPERVISORS Contra ot FROM: CARLOS BALTODANO, DIRECTORo Costa BUILDING INSPECTION DEPARTMENT . ..p County DATE: December 12, 2006 SUBJECT: MARICARE MEDICAL MARIJUANA FACILITY SPECIFIC REQUEST(S)OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1. OPEN the hearing on the appeal of the Notice and Order to Abate zoning violations on the real property located at located at 127 Aspen Drive, Pacheco, California; APN 125-140-026; RECEIVE and CONSIDER oral and written testimony and other evidence from the county abatement officer, the property owner, and other persons; and CLOSE the hearing. 2. ADOPT the findings in this staff report. 3. AFFIRM the county abatement officer's determination in the notice and order to abate by finding that the marijuana dispensary on the above-referenced real property is an illegal land use in violation of Contra Costa County Ordinance Nos. 2006-12 and 2006-17, Ordinance Code sections 84-44.402 and 84-44.404, and Ordinance Code section 82-2.006. CONTINUED ON ATTACHMENT: YES SIGNATURE RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE —i APPROVE OTHER SIGNATURE(S): ACTION OFB A D ON ;T�jaLwiarjl ! b cool APPROVED AS RECOMMENDED g_OTKER Q�eG ��l�! �✓t Gl c�r�2 C (�'B� �� VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE _X UNANIMOUS (ABSENT AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE ABSENT: ABSTAIN: BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: Carlos Baltodano (5-1108) ATTESTED: cc: Building Inspection John Cullen,Clerk of the Bai_rd of Supervisors County Administrator and County Administrator County Counsel Community Development Public Works BY DEPUTY CB:nr \bdord\maricare RECOMMENDATIONS (Continued) 4. ORDER that the following actions be taken to abate the zoning violations at the property. The following actions must be completed within 30 days of the mailing of the Board's decision: A. The property owner, all tenants, and all other persons in control of the property must cease using the property as a marijuana dispensary. B. The property owner, all tenants, and all other persons in control of the property must remove all marijuana and all products containing marijuana from the premises. C. The property owner, all tenants, and all other persons in control of the property must not make available, sell, transmit, give, distribute, dispense, or otherwise provide marijuana from the premises. The property owner, all tenants, and all other persons in control of the property must not make available, sell, transmit, give, distribute, dispense, or otherwise provide marijuana to any person at the premises. 5. DIRECT the county abatement officer to take the actions specified above, and charge the cost of the work and all administrative costs to the property owner, if the property owner does not comply with the Board's order to abate the zoning violations. 6. DIRECT the county abatement officer to send the Board's decision by first-class mail to the property owner and to each party appearing at this hearing, and to file the Board's decision with the Clerk of the Board of Supervisors. FISCAL IMPACT The cost of abating the zoning violations at the property is estimated to be $10,000. If the county abatement officer performs the work of abatement and the property owner does not pay, the actual cost of the work and all administrative costs may be imposed as a lien on the property after notice and a hearing, and may be collected as an assessment against the property. BACKGROUND/REASONS FOR RECOMMENDATIONS This appeal involves a marijuana dispensary located at 127 Aspen Drive, Pacheco, California; APN 125-140-026. The property is located in an 0-1 Limited Office zoning district. The property is owned by Nettie Pineda, Anita Frias and Richard E. Frias, as joint tenants. Demetrio Ramirez manages the marijuana dispensary. Building Inspector Phil Ludolph inspected the property on April 17, 2006, June 28, 2006, and August 8, 2006. Senior Planner Ruben Hernandez also inspected the property on April 17, 2006. Their declarations are attached. Maricare Medical Marijuana Facility Page 2 of 5 December 12, 2006 The evidence establishes that a marijuana dispensary exists at the property. All land uses, even land uses permitted by right, require zoning review before the use is established. The existing use underwent no zoning review and received no zoning approvals or permits before it began, and no certificate of occupancy has been issued for the marijuana dispensary. Staff has determined that the marijuana dispensary on the property is an illegal land use in violation of Contra Costa County Ordinance Code sections 84-44.402 and 84-44.404, Ordinance Nos. 2006-12 and 2006-17, and Ordinance Code section 82-2.006. Copies of these ordinances are attached. Violation of Ordinance Code section 84-44.402 Under Ordinance Code section 84-44.402, a professional office such as one pertaining to the practice of medicine is a permitted use in an 0-1 zoning district provided that no merchandise is stored, handled, displayed or sold on the premises. The marijuana dispensary violates Ordinance Code section 84-44.402 because marijuana is stored, handled, displayed or sold on the premises, as the attached declarations show. This is the primary use of the property. At the property, marijuana is stored in locked drawers, displayed in glass cases, and dispensed or distributed to people in exchange for money they have provided the dispensary. The marijuana sales at the dispensary occur by means of prepaid cards. Under the sales system, a person purchases a card from MariCare before a visit. The card is then loaded with that amount of funds. The person who has purchased the card can redeem the card at the dispensary in exchange for marijuana. When a person receives the marijuana, the value of the marijuana is deducted from the card. During an inspection, the interior of the marijuana dispensary displayed a sign stating "One Purchase Day." Violation of Ordinance Code section 84-44.404 Under Ordinance Code section 84-44.404, drug and prescription sales accessory to a medical office or clinic are not allowed in an 0-1 zoning district unless: (1) a land use permit has been issued; and (2) the sales are definitely incidental to the primary use and are not visible from the street. The marijuana dispensary violates Ordinance Code section 84-44.404 because the distribution, dispensing, and sale of marijuana is the primary use of the property, not an accessory or incidental use to a medical office; and because no land use permit has been issued authorizing these sales. A pharmacy could not be located in an 0-1 zone if it were the primary use of the property, even if the pharmacy were licensed under California Pharmacy Law(B&P Code sec. 4000 et seq.). Similarly, this dispensary cannot be located in an 0-1 zone unless, prior to the adoption of Ordinance No. 2006-12, it had obtained a land use permit and were accessory to a medical office. Violation of Ordinance Nos. 2006-12 and 2006-17 Ordinance No. 2006-12 was adopted by the Board of Supervisors on April 11, 2006. Ordinance No. 2006-12 is an interim urgency ordinance that established a moratorium on medical marijuana dispensaries. Ordinance No. 2006-17 was adopted by the Board of Maricare Medical Marijuana Facility Page 3 of 5 December 12,2006 Supervisors on May 23, 2006. Ordinance No. 2006-17 is an interim urgency ordinance effective through April 10, 2007. Ordinance No. 2006-17 continues the moratorium on medical marijuana dispensaries established by Ordinance No. 2006-12. Section III of Ordinance No. 2006-12 and Section IV of Ordinance No. 2006-17 both provide as follows: "A medical marijuana dispensary is a prohibited use in all zoning districts of the County. While this interim ordinance is in effect, no applications for land-use entitlements or building permits shall be accepted or processed, and no land-use entitlements or building permits shall be approved or issued, for any medical marijuana dispensary at any location in the County." The marijuana dispensary violates Ordinance Nos. 2006-12 and 2006-17 because the dispensary has been in operation following the adoption of those moratoria. Although the marijuana dispensary began operating before the adoption of Ordinance Nos. 2006-12 and 2006-17, no land use permits or zoning approvals were issued to the marijuana dispensary before these ordinances were adopted. The marijuana dispensary has no grandfathered rights that would allow it to remain in violation of Ordinance Nos. 2006-12 and 2006-17. A land use has grandfathered rights if it is a lawful use existing on the effective date of a new zoning restriction. However, the marijuana dispensary was an illegal land use before the adoption of Ordinance Nos. 2006-12 and 2006-17, so it has no grandfathered rights that would allow it to continue in nonconformance to these interim ordinances. By contrast, if the dispensary had opened before adoption of the first interim ordinance and had been located in a zone where sales are allowed as of right, the dispensary could have been deemed to have grandfathered rights, assuming it had undergone the required zoning review. Violation of Ordinance Code section 82-2.006 Under Ordinance Code section 82-2.006, any use of land, building or structure contrary to the County Zoning Code (Divisions 82 and 84 of the County Ordinance Code) is unlawful and a public nuisance. The marijuana is an unlawful use under section 82-2.006 for the reasons stated above. Compassionate Use Act and Medical Marijuana Program Act The marijuana dispensary is not authorized by the Compassionate Use Act or the Medical Marijuana Program Act. In 1996, California voters approved Proposition 215, the Compassionate Use Act of 1996 (codified at Health and Safety Code section 11362.5.) The purpose of the Compassionate Use Act is to enable persons who are in need of marijuana for specified medical purposes to obtain and use marijuana under limited, specified circumstances. In 2003, the State Legislature enacted Senate Bill 420, the Medical Marijuana Program Act (codified at Health and Safety Code sections 11362.7 through 11362.83) to establish regulations and procedures regarding the issuance of identification cards to patients qualified to use medical marijuana. Maricare Medical Marijuana Facility Page 4 of 5 December 12, 2006 However, neither the Compassionate Use Act nor the Medical Marijuana Program Act limit in any way the authority of the County to regulate the location of marijuana dispensaries under its zoning code. Nor do these statutes limit in any way the County's authority to enforce its zoning code. The authority of counties and cities to establish and enforce zoning regulations pertaining to the location of marijuana dispensaries derives from the police power. Under the police power, a county or city may make and enforce all local, police, sanitary, and other ordinances not in conflict with general laws of the state. The County's ordinances and this abatement proceeding are both authorized by the County's police power. For purposes of this abatement action, the marijuana dispensary at 127 Aspen Drive is being treated as any other illegal land use in an 0-1 zoning district. The County issued this abatement order because the use at 127 Aspen Drive does not meet the requirements for a permitted use in an 0-1 district and does not have a land use permit for a conditional use in an 0-1 district. On its face, this abatement order does not prevent any patient or primary caregiver from obtaining medical marijuana at a legally-established location, nor does this order prevent the operation of a legally-established dispensary. Other State Laws The appellant contends that the abatement order violates the Unruh Civil Rights Act (Civil Code section 51 et seq.) and Part 5.5 of Division 13 of the Health and Safety Code (section 19955 et seq.). These laws are meant to protect individuals against discrimination by businesses. They do not protect businesses against zoning actions by government, nor do they protect the use or distribution of marijuana, which is illegal under federal law. The appellants have no standing to assert these laws as a defense to this abatement order, to the extent the appellants are alleging they represent members and clients of the marijuana dispensary. Federal Law Regardless of state law, the distribution of marijuana is a violation of federal law. Under the federal Controlled Substances Act(codified at Title 21, United States Code section 801 et seq.), it is illegal to manufacture, distribute, dispense, or possess any controlled substance, including marijuana. In 2005, the United States Supreme Court held in Gonzales v. Raich (2005) 545 U.S. 1, that the federal Controlled Substances Act is not affected by California's Compassionate Use Act, and therefore it is a violation of federal law to possess or distribute marijuana even if for medical purposes. Maricare Medical Marijuana Facility Page 5 of 5 December 5,2006 ADDENDUM TO D.4. JANUARY 16, 2007 (Appeal of Order to Abate MariCare Marijuana Dispensary) On this day, the Board of Supervisors considered the appeal of MariCare First Harvest Alternative of the Notice and Order to abate zoning violations on the real property located at 1.27 Aspen Drive, Pacheco (APN 125-140-026). Phil Ludolph, Building Inspection Department, presented the staff report. Chair Piepho reviewed the procedures for an appeal hearing and called for testimony from the appellants. Attorney James Anthony represented the appellants and provided written material for consideration (on file with the Clerk of the Board). Mr. Anthony stated objections to the procedures. Additional objections were provided in writing and received by the Clerk of the Board on January 19, 2007 (on file with the Clerk of the Board). The following people spoke after being called by Mr. Anthony: Mary McCaslin,resident of Contra Costa County; Armando Soto,resident of Contra Costa County Herb Morean,resident of Oakley; A.J. Stone,resident of Pacheco; Brandon Semien,resident of Pittsburg Brad Vong, resident of Oakley; Richard Barrientos;resident of Pacheco; Gary Hoag,resident of Pleasant Hill; Laurie Swayze,resident of Antioch. Chair Piepho then called for public comment on the matter. The following people spoke: Derald Parsons,resident of Pacheco; Mary Dempsey, resident of Antioch; Marjorie Cook,resident of Martinez; Peter Langes,resident of Oakley; Lauren Unruh,resident of Pleasant Hill; Andrew Gann,resident of Concord; John F. Wilson,resident of Lafayette; Robert Berry,resident of Martinez; Rick Dallman,resident of Pacheco; Doug Stewart,Pacheco Town Council. The following people did not wish to speak, but submitted written comments for consideration: Anthony Cuzzi,resident of Martinez. Miranda Rivamonte,resident of Martinez; Nicole Best,resident of Martinez. Chair Piepho returned the matter to the Board for deliberation. It was noted by the Board that the issue at the appeal hearing was whether a zoning violation exists on the property. The issue was not the use of marijuana by individuals to treat medical conditions. Responding to questions from the Board, Dennis Barry, Community Development Department Director, said that Ordinance Nos. 2006-12 and 2006-17, establishing a moratorium on new medical marijuana dispensaries in the unincorporated areas of the County, did not affect the operations of existing medical marijuana dispensaries if the existing facilities were lawfully established before adoption of the moratorium. He also said that the 0-1 zoning district specifies which uses are allowed as of right and which uses are allowed upon the issuance of a land use permit. Conditions can be placed on a land use permit following a public hearing. Carlos Baltodano, Building Inspection Director, said the distribution and sale of marijuana from the MariCare dispensary is not an accessory or incidental use to a medical office. He said the distribution, dispensing and sale of marijuana from the dispensary is the primary use of the property. He also said marijuana is merchandise stored at the dispensary, and the dispensary has not obtained a land use permit. By unanimous vote, with all Supervisors present, the Board CLOSED the public hearing and ADOPTED the recommendations of staff as presented in the staff report, as follows: ADOPTED the findings in the staff report; AFFIRMED the County Abatement Officer's determination in the notice and order to abate by finding that the marijuana dispensary located at 127 Aspen Drive, Pacheco (APN 125-140-026) is an illegal land use in violation of Contra Costa County Ordinance Nos. 2006-12 and 2006-17, Ordinance Code sections 84-44.402 and 84-44.404, and Ordinance Code section 82-2.006; ORDERED that the following actions be taken to abate the zoning violations at the property: A. The property owner, all tenants, and all other persons in control of the property must cease using the property as a marijuana dispensary. B. The property owner, all tenants, and all other persons in control of the property must remove all marijuana and all products containing marijuana from the premises. C. The property owner, all tenants, and all other persons in control of the property must not make available, sell, transmit, give, distribute, dispense, or otherwise provide marijuana from the premises. The property owner, all tenants, and all other persons in control of the property must not make available, sell, transmit, give, distribute, dispense, or otherwise provide marijuana to any person at the premises. ORDERED that the above abatement actions be completed within 30 days of the mailing of the Board's decision; DIRECTED the County Abatement Officer to take the actions specified above, and charge the cost of the work and all administrative costs to the property owner, if the property owner does not comply with the Board's order; and DIRECTED the County Abatement Officer to send the Board's decision by first-class mail to the property owners and each party who appeared at the hearing, and to file the Board's decision with the Clerk of the Board of Supervisors. On file: Staff report with attachments Letter of James Anthony, May 8, 2006—zoning compliance inquiry Criminal statistics for property area from Office of the Sheriff,December 11, 2006 Copy of rules posted at MariCare site Statement of Demetrio Ramirez,Director of MariCare Letter of James Anthony, January 11,2007 Various letters in support of MariCare Letter of James Anthony, January 19,2006—written objections Before the Board of Supervisors, Contra Costa County, California In the Matter of: DECLARATION OF RUBEN HERNANDEZ Appeal of Notice and Order to Abate Zoning Violations at 127 Aspen Drive, Pacheco, California APN 125-140-026 I, Ruben Hernandez, declare as follows: 1. I am a Senior Planner employed by the Community Development Department of the County of Contra Costa. My work address is 651 Pine Street, 2nd Floor, North Wing, Martinez, Contra Costa County, California. 2. My duties as a Senior Planner include making determinations as to whether conditions of property constitute violations of the Contra Costa County Zoning Code, Title 8 of the County Ordinance Code. 3. On April 17, 2006, 1 inspected the property commonly known as 127 Aspen Drive, Pacheco, California(the "subject property"). The Assessors Parcel Number of the subject property is 125-140-026. During my inspection, I was accompanied by Contra Costa County Building Inspector Phil Ludolph. Declaration of Ruben Hernandez Page 1 of 5 4. I observed a marijuana dispensary at the subject property during my inspection. 5. During my inspection, I met with Demetrio Ramirez, the manager of the marijuana dispensary. I met with him in the waiting room of the marijuana dispensary. 6. I discussed the operation of the marijuana dispensary with Demetrio Ramirez. During our discussion, Mr. Ramirez told me that marijuana is kept at the subject property and is distributed to people. Throughout the inspection,Mr. Ramirez characterized the people who receive the marijuana distributed at the property as"patients." 7. Mr. Ramirez told me that the marijuana kept at the subject property is stored in a room adjacent to the waiting room where our conversation occurred. 8. Mr. Ramirez told me that the marijuana is displayed in glass cases in the room adjacent to the waiting room. 9. Mr. Ramirez explained the system for distributing marijuana at the subject property as follows: When a person who wants to receive marijuana arrives at the dispensary, the person first shows an identification card to the security guard at the door, then the "patient" shows a medical marijuana card to the receptionist. The person is then escorted into the room where the marijuana is stored. The person chooses a package of marijuana from the glass display case. The escort unlocks the case and gives the package to the person. 10. While I was in the waiting room at the subject property, I smelled marijuana. The air had a distinctive odor, similar to the smell of skunk. 11. Based on my observations, I determined that the conditions at the subject property constitute violations of Title 8 of the County Ordinance Code. Declaration of Ruben Hernandez Page 2 of 5 12. The subject property is located in a Limited Office (0-1) zoning district. 13. Under section 84-44.402 of the County Ordinance Code, a professional office such as one pertaining to the practice of medicine is a permitted use in an 0-1 zoning district only if no merchandise is stored,handled, displayed or sold on the premises. Under section 84- 44.404 of the County Ordinance Code, drug and prescription sales accessory to a medical office or clinic are not allowed unless: (1) a land use permit has been issued; and (2) the sales are definitely incidental to the primary use and are not visible from the street. 14. On April 11,2006, the Contra Costa County Board of Supervisors adopted Ordinance No. 2006-12. Ordinance No. 2006-12 is an interim urgency ordinance that established a moratorium on medical marijuana dispensaries. On May 23, 2006, the Board of Supervisors adopted Ordinance No. 2006-17. Ordinance No. 2006-17 is an interim urgency ordinance that continues the moratorium on medical marijuana dispensaries established by Ordinance No. 2006- 12. Ordinance No. 2006-17 is effective through April 10, 2007. 15. Section III of Ordinance No. 2006-12 and Section IV of Ordinance No. 2006-17 both provide as follows: "A medical marijuana dispensary is a prohibited use in all zoning districts of the County. While this interim ordinance is in effect, no applications for land-use entitlements or building permits shall be accepted or processed, and no land-use entitlements or building permits shall be approved or issued, for any medical marijuana dispensary at any location in the County." 16. No land use permit has been issued for the marijuana dispensary located at the subject property. No land use permit has been issued for the sale, storage, handling, or display of Declaration of Ruben Hernandez Page 3 of 5 marijuana at the subject property. The marijuana dispensary underwent no zoning review before the use was established. The only land use permits associated with the subject property are land use permits issued in 1977 and 1988 establishing and expanding a battered women's and teen violence prevention facility. 17. The marijuana dispensary on the subject property is an illegal land use in violation of Ordinance Code section 82-2.006, which provides that no land may be used for any purpose not authorized under the zoning code. The marijuana dispensary violates Ordinance Code section 84-44.402 because marijuana is stored, handled and displayed on the premises. The marijuana dispensary violates Ordinance Code section 82-44.404 because no land use permit has been issued for the sale, storage, handling, or display of marijuana at the subject property. The distribution, dispensing and sale of marijuana is the primary use of the property, not an accessory or incidental use to a medical office. The marijuana dispensary violates Contra Costa County Ordinance Nos. 2006-12 and 2006-17 because no land use permit was issued for the marijuana dispensary before the adoption of these ordinances and the marijuana dispensary has been in operation following the adoption of these ordinances. 18. Because the marijuana dispensary was not a lawful use in an 0-1 zoning district at the time the Board of Supervisors adopted Ordinance No. 2006-12 (the first interim ordinance), the marijuana dispensary is not a legal nonconforming use of the property. A legal nonconforming use is a lawful use existing on the effective date of a new zoning restriction and continuing since that time in nonconformance to the ordinance. 19. If called upon to testify as a witness, I can competently testify to the matters stated Declaration of Ruben Hernandez Page 4 of 5 herein on my own personal knowledge. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on N C d Qom, r` Cv , 2006, at Martinez, California. Ruben Hernandez, Senior Pla Declaration of Ruben Hernandez Page 5 of 5 Before the Board of Supervisors, Contra Costa County, California In the Matter of DECLARATION OF PHIL LUDOLPH Appeal of Notice and Order to Abate Zoning Violations at 127 Aspen Drive, Pacheco, California APN 125-140-026 I, Phil Ludolph, declare as follows: 1. I am a Building Inspector employed by the Community Development Department of the County of Contra Costa. My work address is 651 Pine Street, 4"'Floor, Martinez, Contra Costa County, California. 2. My duties as a Building Inspector include making determinations as to whether conditions of property constitute violations of the Contra Costa County Zoning Code, Title 8 of the County Ordinance Code. 3. I have inspected the property commonly known as 127 Aspen Drive, Pacheco, California(the "subject property"). The Assessors Parcel Number of the subject property is 125- 140-026. I inspected the subject property on April 17, 2006, June 28, 2006, and August 8, 2006. Declaration of Phil Ludolph Page 1 of 8 4. I observed a marijuana dispensary at the subject property during each of my inspections. APRIL 17, 2006 INSPECTION 5. During my inspection of the subject property on April 17, 2006, the following occurred: a. I was accompanied by Contra Costa County Senior Planner Ruben Hernandez. b. I met with Demetrio Ramirez, the manager of the marijuana dispensary. I met with him in the waiting room of the marijuana dispensary. C. I discussed the operation of the marijuana dispensary with Demetrio Ramirez. During our discussion, Mr. Ramirez characterized the people who receive the marijuana distributed at the property as "patients." Mr. Ramirez told me that marijuana is distributed to "patients"who arrive at the dispensary with an identification card. He told me that a"patient" who is a regular customer does not need to show an identification card. He also told me that MariCare delivers marijuana from the property to "patients" at other locations. d. While I was in the waiting room at the subject property, I smelled marijuana. It was a strong smell. The air had a distinctive sweet-and-sour-type odor that was not tobacco. e. While I was in the waiting room at the subject property, a"patient" entered the waiting room and showed identification to the secretary. The"patient'then sat down on a couch and waited until he was summoned into the dispensing room. f. Mr. Ramirez told me that the only other business at the subject property was an arborist business,which was located on the second floor of the building. Declaration of Phil Ludolph Page 2 of 8 JUNE 28, 2006 INSPECTION 6. During my inspection of the subject property on June 28, 2006, I personally served Mr. Ramirez with a Notice to Comply. A true and correct copy of the Notice to Comply is attached as Exhibit land incorporated by reference. I took photographs of the exterior of the building. The exterior of the building had an "OPEN'sign. Photographs of the exterior of the building at the subject property are attached as Exhibit 2 and incorporated by reference. AUGUST 8, 2006 INSPECTION 7. During my inspection of the subject property on August 8, 2006, the following occurred: a. I inspected the entire building at the subject property, including the waiting room, the marijuana dispensary room, and the business office. The marijuana dispensary was the only use of the subject property. The arborist business had moved out. b. I was accompanied by Demetrio Ramirez, the manager of the marijuana dispensary, during the entire inspection. C. I first inspected the waiting room of the subject property. I observed several pieces of office furniture and equipment in the waiting room, including a computer, telephone, fax machine, and copier. I also saw couches and a television. d. I took several photographs of the waiting room. Photographs of the waiting room at the subject property are attached as Exhibit 3 and incorporated by reference. The attached photographs accurately depict the waiting room at the subject property. e. I then inspected the marijuana dispensary room of the subject property. I Declaration of Phil Ludolph Page 3 of 8 observed several empty glass cases in the marijuana dispensary room. Mr. Ramirez told me that marijuana is displayed in the glass cases,but that he had removed it prior to my inspection. f. I observed a white dry-erase message board in the marijuana dispensary room. The message board had several written rules. One of the rules stated: "ONE PURCHASE DAY." g. I observed two cash registers in the marijuana dispensary room. h. I observed locked drawers beneath the glass display cases. Mr. Ramirez told me that marijuana is kept in the locked drawers, and that the drawers currently contained marijuana. He did not unlock the drawers. i. Mr. Ramirez explained the system for distributing marijuana at the subject property as follows: When a"patient"who wants to receive marijuana arrives at the subject property, he or she is met by an attendant outside the building. After the attendant in the parking lot clears a"patient"to enter the building, the person drops his or her identification into a slot in the wall of the building before entering the building. The"patient"then enters the building, is seated in the waiting room, and waits to be called into the dispensing room where the marijuana is stored. Once in the dispensing room, the"patient" chooses marijuana from a glass display case. After receiving the package, the recipient hands a prepaid MariCare card to the person in the dispensing room. The prepaid card has been purchased from MariCare prior to the visit and has been loaded with the amount of the purchase. After the marijuana recipient hands over the prepaid MariCare card, the value of the marijuana is deducted from the card. If the card is short of funds, the "patient" can use cash to pay the remaining amount. The recipient then leaves the Declaration of Phil Ludolph Page 4 of 8 subject property with marijuana. j. I took several photographs of the marijuana dispensary room. Photographs of the marijuana dispensary room at the subject property are attached as Exhibit 4 and incorporated by reference. The attached photographs accurately depict the marijuana dispensary room at the subject property. k. I then inspected an office at the subject property. I observed a desk and work tables in the office. I observed a binocular microscope on one of the work tables. Mr. Ramirez said he uses the binocular microscope to examine the quality of the marijuana that is dispensed at the subject property. Mr. Ramirez said he looks at the quality of the THC (tetrahydrocannabinol) spores on the surface of the marijuana leaves and also looks for mold or other signs of deterioration. 1. I took several photographs of the office. Photographs of the business office at the subject property are attached as Exhibit 5 and incorporated by reference. The attached photographs accurately depict the office at the subject property. m. I then went back into the waiting room. There,Mr. Ramirez told me that the marijuana that is kept in the locked drawers is stored in plastic containers with snap-top lids. Mr. Ramirez also told me the marijuana is dispensed in small, sealed, clear plastic bags. He gave me one of these bags. I took a photograph of the bag. The photograph of the bag is attached as Exhibit 6 and incorporated by reference. The attached photograph accurately depicts the small, sealed, clear plastic bag used to dispense marijuana. Mr. Ramirez also told me that poor-quality marijuana product and THC residue is collected and then sold at a discount or given away. Mr. Declaration of Phil Ludolph Page 5 of 8 Ramirez told me that the people who receive this marijuana product could be people that help out MariCare by picking up trash in the street. 8. Based on my observations, I determined that the marijuana dispensary at the subject property violated the County zoning code. 9. The subject property is located in a Limited Office (0-1) zoning district. 10. Under section 84-44.402 of the County Ordinance Code, a professional office such as one pertaining to the practice of medicine is a permitted use in an O-1 zoning district only if no merchandise is stored, handled, displayed or sold on the premises. Under section 84-44.404 of the County Ordinance Code, drug and prescription sales accessory to a medical office or clinic are not allowed unless: (1) a land use permit has been issued; and(2) the sales are definitely incidental to the primary use and are not visible from the street. 11. On April 11, 2006, the Contra Costa County Board of Supervisors adopted Ordinance No. 2006-12. Ordinance No. 2006-12 is an interim urgency ordinance that established a moratorium on medical marijuana dispensaries. On May 23, 2006, the Board of Supervisors adopted Ordinance No. 2006-17. Ordinance No. 2006-17 is an interim urgency ordinance that continues the moratorium on medical marijuana dispensaries established by Ordinance No. 2006-12. Ordinance No. 2006-17 is effective through April 10, 2007. 12. Section III of Ordinance No. 2006-12 and Section IV of Ordinance No. 2006-17 both provide as follows: "A medical marijuana dispensary is a prohibited use in all zoning districts of the County. While this interim ordinance is in effect, no applications for land-use entitlements or building permits shall be accepted or processed, and no land-use entitlements or building permits Declaration of Phil Ludolph Page 6 of 8 shall be approved or issued, for any medical marijuana dispensary at any location in the County." 13. No land use permit has been issued for the marijuana dispensary located at the subject property. No land use permit has been issued for the sale, storage,handling, or display of marijuana at the subject property. No certificate of occupancy has been issued for the marijuana dispensary. 14. The marijuana dispensary on the subject property is an illegal land use in violation of Ordinance Code section 82-2.006, which provides that no land may be used for any purpose not authorized under the zoning code. The marijuana dispensary violates Ordinance Code section 84-44.402 because marijuana is stored, handled and displayed on the premises. The marijuana dispensary violates Ordinance Code section 82-44.404 because no land use permit has been issued for the sale, storage, handling, or display of marijuana at the subject property. The distribution, dispensing and sale of marijuana is the primary use of the property, not an accessory or incidental use to a medical office. The marijuana dispensary violates Contra Costa County Ordinance Nos. 2006-12 and 2006-17 because no land use permit was issued for the marijuana dispensary before the adoption of these ordinances and the marijuana dispensary has been in operation following the adoption of these ordinances. 15. I posted a Notice and Order to Abate at the subject property on August 8, 2006. A true and correct copy of the Notice and Order to Abate is attached as Exhibit 7 and incorporated by reference. 16. If called upon to testify as a witness, I can competently testify to the matters stated herein on my own personal knowledge. Declaration of Phil Ludolph Page 7 of 8 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on 2$ , 2006, at Martinez, California. Ph' p , Building Inspector Declaration of Phil Ludolph Page 8 of 8 Building Inspection Depal lentContra CarlosBaltodano PROPERTY CONSERVATION DIVISION Director of Building Inspection NEIGHBORHOOD PRESERVATION PROGRAM Costa RESIDENTIAL RENTAL INSPECTION PROGRAM County n 651 Pine Street, 4th Floor J/ FILEMartinez, California 94553-0152 @e..c COPY PCD (925)335-1111 NPP (925)335-1137 RRIP (925)335-1170 FAX (925)646-4450 , ST C6uF� June 28, 2006 ( EXHIBIT 1.) Copy of the Notice to Comply posted on June 28, 2006. Also the affidavit Nettie Pineda of posting. Anita Frias & Richard E. Frias, all as joint tenants 4102 Boulder Creek Ct. Fairfield, CA 94534 SITE: 127 Aspen Dr., Suite 101, Pacheco, CA APN: 125-140-026 REF: RF06-00523 NOTICE TO COMPLY NOTICE IS HEREBY GIVEN that an illegal land use exists on property located at 127 Aspen Drive, Suite 101, Pacheco, Contra Costa County, California; APN: 125-140-026. The property is located in an 0-1 Limited Office zoning district. An inspection of the property was conducted on April 27, 2006. The inspection and additional evidence establish that a marijuana dispensary exists at the property. The marijuana dispensary on the property is an illegal land use in violation of Contra Costa County Ordinance No. 2006-17, Ordinance Code section 84-44.402 and 84-44.404 Ordinance Code section 82- 2.006. Ordinance No. 2006-12 was adopted by the Board of Supervisor on April 11, 2006. Ordinance No. 2006- 12 is an interim urgency ordinance that established a moratorium on medical marijuana dispensaries. Ordinance No. 2006-17 was adopted by the Board of Supervisors on May 23, 2006. Ordinance No. 2006-17 is an interim urgency ordinance effective through April 10, 2007. Ordinance No. 2006-17 continues the moratorium on medical marijuana dispensaries established by Ordinance No.2006-12. Section III of Ordinance No. 2006-12 and Section IV of Ordinance No. 2006-17 provides as follows: "A medical marijuana dispensary is a prohibited use in all zoning districts of the County. While this interim ordinance is in effect, no applications for land-use entitlements or building permits shall be accepted or processed, and no land-use entitlements or building permits shall be approved or issued, for any medical marijuana dispensary at any location in the County." Under section 8-44.402 of the County Ordinance Code, a professional office such as one pertaining to the practice of medicine is a permitted use in an 0-1 zoning district provided that no merchandise is stored, handled, displayed or sold on the premises. Under section 84-44.404 of the County Ordinance Code, drug and prescription sales accessory to a medical office or clinic are not allowed unless: (1) a land use permit has been issued; and (2) the sales are definitely incidental to the primary use and are not visible from the street. NOTICE TO COMPLY Nettie Pineda Anita Frias & Richard E. Frias, all as joint tenants June 28, 2006 Page 2 No land use permit has been issued for the marijuana dispensary at the property. No land use permit was granted for drug and prescription sales accessory to a medical office or clinic at the property prior to the adoption of Ordinance No. 2006-12. No zoning approvals were issued for a professional office at the property prior to the adoption of Ordinance No. 2006-12. No certificate of occupancy has been issued for the marijuana dispensary. Ordinance Code section 82-2.006 provides that any use of land, building or structure contrary to the County Zoning Code (Divisions 82 and 84 of the County Ordinance Code) is unlawful and a public nuisance. To comply with this notice, you must cease using the property as a marijuana dispensary within Ten (10) days of the date of this notice. You must not make available, sell, transmit, give, distribute, or otherwise provide marijuana to any person at the premises and must remove all marijuana and marijuana-related products from the premises with Ten (10) days of the date of this notice. If you do not comply with this notice, the Building Inspection Department may pursue any remedy allowed by law, including but not limited to the following: ❑ Issue an abatement order ❑ Issue a criminal citation ❑ Impose an administrative fine You are also subject to code enforcement inspection fees. If you have any questions regarding this matter, you may direct them to the County Officer issuing this notice at the address listed below. I may be reached at (925) 335-1142 any workday between 7:30 and 10:00 a.m. Our offices are closed the first, third, and fifth Friday of every month. IISSUANCE DATE: June 28, 2006 p , ui ing ns Building Inspection Department 651 Pine St., 4`h Floor Martinez, CA 94533 PAL:prc cc: MariCare First Harvest Alternative 127 Aspen Dr., Suite 101 Pacheco, CA 94553 Attention: Managing Director Nettie Pineda 850 Weibel Circle Oakley, CA 94561 w:pe rso na I/ntc/rf05-00523 r Mom10 N LIU 141h St., Ste, 610 h , . 510/2'107-6243 off, �l7a�sa7 nthyon�yt Cc{�o �mT'cr ast�.net � Counselor a�& hd �946 J7�,OpxpGX +�W MW i411RA",h( 4�ek 1Vl n. May 8, 2006 2 PAGES TOTAL VIA REGULAR MAIL AND FAX TO 925/335-1222 Ruben Hernandez Senior Planner Community Development Department Contra Costa County County Administration Building 651 Pine Street 4th Floor, North Wing Martinez, CA 94553-0095 RE: Zoning Compliance Inquiry, MariCare First Harvest Alternative 127 Aspen Drive, Suite 101, Pacheco Report File #RF06-00523, APN: 125-140-026 Dear Mr. Hernandez: I write in response to your letter of April 27,2006, as the land use attorney for MariCare.As you know, MariCare is a medical marijuana collective that was operating at the above- referenced location prior to the passage of the moratorium on such uses by the Board of Supervisors on April 11,2006 and that continues as a prior legal non-conforming use today. Like all such collectives, MariCare operates lawfully under the California Health and Safety Code on a not-for-profit basis. Cal. H&S Code 11362.765, 11362,775. Contra Costa County Code 84-44.402 provides that medical offices are permitted as of right in the 0-1 zone provided that no merchandise is handled or sold on the premises. s? :. While the term "merchandise" is nowhere defined in the Code, it appears to be the intent of the Code to require use permits for any substantial for-profit retail sales activity in the 0-1 zone. Webster's Dictionary defines "merchandise" as "commodities or goods bought and sold in business." CCCC 82-4.216 defines "Retail Business" as the sale of merchandise "for profit." £ A medical marijuana collective is a medical office where collective members obtain medicine on a not-for-profit basis. It is not a business. Under California law, such collectives f , involve only reasonable compensation and expenses, but no profit. MariCare is a :a collective organized as a California nonprofit mutual benefit corporation. It dispenses medicine to collective members only. The collective members consist only of Contra Costa County residents who are patients and primary caregivers as defined under state law. Because the medicine that is obtained by collective members at MariCare is not bought and sold in business for profit, it is not "merchandise" for any legal purpose including land use purposes under the Contra Costa County Code. No retail sales occur there, and thus rFJ no merchandise is handled or sold. As such, MariCare is a permitted use as of right. Y* 4 The only other possible interpretation of the current status of the zoning regulation of medical marijuana collectives in Contra Costa County is that of the Board of Supervisors in dr, ' Ordinance No. 2006-12 which found that the County Code currently has no standards for such use, and thus established a moratorium until such time as appropriate regulations can be set in place.The Ordinance further found that absent the moratorium, medical marijuana collectives might be located in any area. On balance, I think you will agree that it is the more sensible approach to find that a medical office building is an appropriate location for a not-for-profit collective medical use such as MariCare where no business is transacted and no merchandise is handled or sold. If you are still unclear as to the applicable standard, you might consider awaiting further guidance from the Board of Supervisors which will soon create a regulatory scheme for this use. If you have any questions regarding this matter please feel free to contact me. I would also appreciate that you cc me by fax and regular mail on any further correspondence or determinations in this matter. Should you make any determination adverse to my client, please include information regarding the procedure for appeal with the notice of the determination. Thank you for all your good work. Yours very truly, ames Anthorf'y Attorney forlvtariCare cc:JH, RR, DR f y_ Mu V HP Officejet 6100 Series 6105 Log for Personal Printer/Fax/Copier/Scanner Lowell Kurashige 510-763-6255 May 08 2006 4:45pm Last Transaction Date Time Tpg Identification Duration Pages Result May 8 4:39pm Fax Sent 19253351222 5:36 2 OK 4Kl �t o" �a'� 1 lk � Yk :. }I ✓; it )- ��y } x 'P qi • - K � n r } )r�t � e � ktw`���A, �, h'# P�l t � � t�� v � 'f 't.,moi''` �°>�' e'A. •Y` �'�'� �sy` ,r s� r,rl� �1 � � ., ' y�L t d� .+ � � ;p A i�•i� y�2q y�„a >•cl,�, , ,1 3 ti t •.. I�I�A*'.p �j,1'!-"%k �C r A-{ 1bg;. 7� �� �ll.� �'r Y Y I f a- 7V7 t '+6d;'( �!!� l ; � t�..3� '�°x aq`�.}�;• i. '. � `Y` SYF„ _ X 1 t r1 yyy�jjj C _ ° �'� 1 �-� +�} �k`•` �! .'�� ,3� � .rye•_ .� �' -�3V :'•RR °- e -40 exp jo ta jj s - �' 7 V"'s li" �� �l�r'g'e 7 0.� l4 � ', �r ;. � � yr `�� Y� � � #::�� }I� "���, �. s.,t •4. "1sF r ,. :t ,�" �. w"t t+ - Y >< •.�, - +�' r� {y,��.,"tom' � �.< �I yp rye t - � �:-: �4'� F4� ( � � }tom I _ >:.Y."'�a!, }'. ��i b1r� L �� `-✓ t Office the SheriffT, 3 f of Rp� Warren E. Rupf Contra"Costa County SHERIFF Technical Services -Records George Lawrence 500 Court Street, "i Floor Martinez, Ca 94553 0 ' a Cln�(ersherifJ (925)335-1570 PA casn December 11, 2006 Joe Partansky 3920 East El Campo Court Concord, Ca, 94519 Criminal Statistics for 127 Aspen Drive, Pacheco Below is the statistical information you requested for the address indicated above. The infonnation below reflects calls for police services within the area of the address above for January 2005 to December 1, 2006. The statistical information collected below represents a designated "beat area" for this particular neighborhood within the area of Pacheco. The designated beat area can range from a 1 to 6 mile radius. Occurrences: Ashen Drive 20Q5 2006 Warrant Arrest 2005 200628 17 Petty Theft 1 0 26 15 4 0 Suspicious Circumstance 22 15 Burglary I 1 Vandalism 27 24 4 223 13 Battery, misdemeanor 0 2 Illegal Entry 8 7 1 00 0 Grand Theft 0 0 6 1 0 0 Assault w/Deadly Weapon 4 U Arson 0 0 0 0 0 0 Drugs-Possession/Sales 13 g Robbery 1 1 Rape 2 1 0 0 1 1 0 0 As an update to the report •sent to Anita Frias, there was a crime of rape committed for 2005 and 2006. If you have any further questions, you may contact me at the number indicated above or for additional information regarding crime statistics for your city and crime prevention information, you can look at the Contra Costa County Sheriff website at: www.cocosheriff.org Thank you, Warren E. Rupt, Sheriff, Contra Costa County By Della Orosco, Statistics Clerk Uvi Fp.R B9,5 SBM AN EQUAL OPPORTUNITY EMPLOYER !MARI'* CARER FIRST HARVEST ALTERNATIVE Business Hours Winter Hours Monday - Friday 10AM - 7PM Saturday & Sunday 11AM - 6PM Facility Rules • No medicating on or around the facility • No cell phones allowed • One visit allowed per day • No weapons • No loud music in parking area • Only 1 passenger allowed in vehicle – passenger must remain in the vehicle • Drop-offs not allowed. Patients MUST pull into the parking lot. • No cigarette smoking within 100ft of facility • No pets or children allowed in the facility Facility privileges may be suspended and/or terminated if rules are not followed We reserve the right to refuse membership Print Name: Sign Name: Date:—/—/ My Name is Demetrio Ramirez, I am the director of MariCare. We are located at 127 Aspen Drive. Pacheco CA. I was born and raised in CCC and I'm proud to be a Citizen here of. I'm 50 yrs old, and I am a tax payer just like you..... MariCare was established in Feb. of 2005, We were the county's first membership collective. We were based in Concord; prior to their ban...We have a history of being a good neighbor, and a track record for be conscientious and compassionate care providers. MariCare is a Membership driven "Health Resource and Support Group". We provide Medical Cannabis and information on its usage, Advise members of available Health services and support groups in and around Contra Costa, Attorney information, as well as Transportation All Members and Care Givers must be 18 years of age or older. All Members are screened, a current ID is required and their Doctor's recommendations are verified. Membership validation is checked on every visit to insure membership is current. MariCare limits our members to one (1) visit a day. We have on our staff at MariCare: a Surgery Assistant, LVN, Emergency Room Customer Services/ Patients Advocate. Our entire staff is required to receive and maintain a CPR certificate, as a condition of employment. We at MariCare pride ourselves on having a safe, clean, and professional environment where the ill are treated with dignity and respect. Our goal is to give the sick a chance to heal without the risk of being sent to unfamiliar and often an aggressive environment. "the sick are not put out on our streets". We take the hardship out of travel, I.e. .. "Discomfort and stress associated with long drives" expense of transportation, and lost time involved in travel. (any of you who commute know what we're talking about.) • We provide our members with more than adequate off street parking, (18) stalls including Handicap Parking • We are ADA compliant • We do not allow members to smoke on premises • We are in a professional environment with emphasis on being a medical facility. • We are not within 1000 ft. of any schools, church's or liquor stores. • We only provide cannabis, no paraphernalia • Our membership is Community Based / with family values. • Our facility is well lit and maintained and has 24 hr security provided. • We support and use local contractors and services. • We provide a delivery service to our bed ridden members • We provide our members with the opportunity to have their vital periodically checked through our LVN • All consumable products are inspected by staff and suppliers prior to making available to members. • We have worked with the county, advising them on the implementation of the California County ID card. We encourage responsible use and demand our members respect of OUR neighborhood. Thank you for your time and concerns. Demetrio Ramirez Director of MariCare "First Harvest Alternative" Demetrio Ramirez Director of MariCare "First Harvest Alternative" P.S. The sky is NOT falling, contrary to what some would like you to believe..... We can all work together. c Lam:A-rc f+- r • LC c, �% '-' t t '� r s z s '# 4 1. p t r _ �,, 4-4'- ti r ,: _~ 1 r �'° "�p.? nb fr} T �` �. `cvu may }[ -y _,* $'a a ,5'. 11 x�t [ 4,.r ,bL'Pc. _ ' .:w$,,'3�1� _ f _ ,y� �e3. .Fcp _ ye. y ` .. i• - - ..:"gkv tcI. .+5+. i "5 `' � j-rye.-" y :. .I' 'W s p�' .y J 4Y1 A b F jt Y .G�'u.if k {kit , ice'""-Al is ''�'` .�. } !'✓< Ma 'w , '. - �`„ H i,. tµ1!' 1 hf' P '9 y n• did r _ .t; -E .Lh , -4 _ ,' , t r u'm" t�h, k k1. s1�� s x` 57 [ �,.a `y':Sf a �774 T ,<t- ;.x.{tf- .t tE{. $d . I ,jz�fa�x, ''�- i. j. __ 'r ,# .,,F ,s .x . r a } ' 'ia� -5'Y � :r.... 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L-,p �P3T 1ifr , a �� >R [ . .r7r r .f d} b f;W �. ,�.r a _ 1 ,.�y ..at I,.�'j LAW OFFICES OF JAMES ANTHONY 3542 Fruitvale Avenue, 351 Oakland, CA 94602 510/207-6243 510/228-0411 fax jasanthony@comcast.net January 11, 2007 Carlos Baltodano, Director Building Inspection Department Contra Costa County 2 PAGES VIA FAX ONLY TO: Carlos Baltodano, 925/646-1219 Phil Ludolph, 925/646-4450 Ruben Hernandez, 925/335-1222 Thomas Geiger, Esq., 925/646-1078 Re: MariCare Medical Marijuana Facility 127 Aspen Dr.; APN 125-140-026 Board of Supervisors Appeal Hearing 1/16/07 Dear Mr. Baltodano: I represent MariCare and will appear at the hearing next week. In reviewing your recommendations to the Board (dated 12/12/06), 1 have three questions. I tried to have these answered in a conversation with Mr. Ludolph, but he referred me to Mr. Ruben Hernandez and to Mr. Kevin Domford. Mr. Hernandez has not yet returned my call, and Mr. Domford is out of the office until 1/17. Thus, I am turning to you for direction. These are my questions. 1) On page 3 of 5 of your recommendations, the second sentence from the top asserts that all land uses require zoning review before being established. What is the source of that requirement? If it is in the County Code, please give me the section number; if it is in some other County document, please provide a copy. 2) Previously there was another medical marijuana facility, THC (Tender Holistic Care) located on Pacheco Blvd. about a half a mile from the MariCare site on Aspen. Did the County ever dispute THC's zoning or building code compliance? I would like to talk with any inspectors involved with any County inspections, investigations, or actions related to THC, and I would like copies of any documents in the County's possession related to THC. Because the hearing is less than a week away, I am willing to receive the documents the morning of Tuesday 1/16/07, and to speak to the inspectors involved either by phone before the hearing or on the record at the hearing itself. 3) Attached to your recommendations are letters from citizens including, Douglas W. Stewart, Travis W. Vincent, Jennifer Malcolm, Judy Gooch, Sandy Haule, and Kim Wallae (sp?). Also attached are the 6/28/06 minutes of PTC (Pacheco Town Council) indicating that the attendees, Keith March, Doug Stewart, Kay Perry- Thayer, Sally Norgaard, Charles Morphy, and Gary Glentzer. Will these citizens be attending the hearing and available for cross-examination? If not, then I hereby object, and will object on the record at hearing, to the admission of their letters and the minutes as hearsay. look forward to discussing these issues with you at your earliest convenience. Thank you in advance for your prompt attention. Your very truly, James Anthony COUNSEL FOR APP LANT RICARE cc: Phil Ludolph; uben Hernandez; Tom Geiger r • J.Ht. J.T. HOWE & ASSOCIA"CES 5528 PACHECO BLVD SUITE A PI IYSICIAN BILLING AND CONSUL'I A IION PHONE 925.363.8170 PACHECO,CALIFORNIA 94553 FAX 925.363.4995 JTHOWE@SBCGLOBAL.NET TOLL FREE 877.363.8170 w • i l/15/07 • To Contra Costa County Board of Supervisors: • In regards to MariCare, the company JT Howe & Associates has no complaints regarding the location. We are located directly to the left of the business and have never had any complaints or concerns regarding the daily operations that occur there. • • Sincerely, Nicole Tyson Account Supervisor • • • • • • • • • 1 � January 12, 2006 Mr.Richard Barrientos • 121 Aspen Drive, Apt 101 Pacheco, CA 94553 RE: Maricare Wellness Center • I am writing this letter to express my deepest and sincere concerns regarding the closing of Maricare Wellness Center, a Medical Cannabis Dispensary, which is located in the city of Pacheco. The boondocks of Contra Costa County. • 1 am a captain of our local neighborhood watch program and work closely with the management of Maricare Wellness Center to ensure there is no illegal/suspicious activity going on in our • neighborhood. • 1 have recently held a meeting with the other captain of our neighborhood watch (Doug Stewart). I was shocked to hear that Mr. Stewart had been giving false information to local residents, and to the City Council. • 1 will address them as follows: • 1. Drug dealing in Church parking lot. -This is a BOLD face lie. What was happening was that Maricare Wellness Center does not permit multiple people in a vehicle on their property, and would turn away patients. The patients would then pull in front of our residence, sometimes parking lot. I would then inform them of how this looked, and asked that they refrain from any suspicious activity. The patients would then pull • into the church parking lot and drop off some of the people in car. Mr. Stewart has twisted this simple behavior into a ridiculous scene. I have witnessed prostitution going on more so. Mr. Stewart concurred - nothing has been done regarding this. Mr. Stewart stated that Pacheco only has (2) Deputies, and is incapable of patrolling Pacheco. 2. Drug dealing along Aspen Drive. - This is ridiculous...this is 2007, people do NOT deal pot'...this isn't the 70's or 80's...California voted to allow medical cannabis...there is NO need to hide and "drug deal" pot. You should focus on the real epidemic that Contra Costa is known for(Crystal Meth). • 3. Smell & Odor - I live right next door and have a wonderful view of Maricare Wellness Center's parking lot and front door. I do NOT smell anything other than the decaying Storm Drainage system, exhaust from the Crane operations on Pacheco Blvd, and on occasion, Sulfur(Rotting egg smell) • from the local refineries. If a vehicle does not pull into the parking lot of Maricare Wellness Center, I immediately call the • Security and inform them of the infraction. They will NOT allow the purchase of medical cannabis, and/or may revoke the membership of the person. This may have occurred during the beginning stages of their opening, but I can assure you that it's very rare. This is the best self regulated Medical Cannabis Club I have ever seen. I believe Contra Costa County should be proud of the ground breaking self regulated Maricare Wellness Center. Take a look at the other clubs, and you will see how great they have managed to maintain a fundamental healthcare service for the benefit of people living with a terminal disease such as myself. • • 1 have been using medical cannabis for most of the 20 years that I have been living with AIDS. I truly believe that it has allowed me to live the quality of life each human being deserves. • 1 am not on any antivirals, nor any AIDS medication for that matter. Simply because the side effects would decrease my quality of life. I have severe nausea every day, which is directly linked • to my appetite. • Maricare Wellness Center enables me to live a more fulfilled life by allowing me to purchase medical cannabis grown specifically to enhance my appetite, and to suppress my nausea. Please do not allow the closure of this Medical Cannabis dispensary. It would cause extreme hardship to my health and well being. In return, I can assure you that I will work with Maricare Wellness Center to ensure there is no illegal activity that pertains to this establishment. • Thank you for your consideration. Respectfully yours, Richard Barrientos • 925.695.4136 • • • • • • i • • • • • • • • • • 01/15/2007 13:53 3234360803 LYNNETTE SHAW PAGE 01 • T c5bU • ; �� i • y o, • -mac., t.�u-n.. �=�,_.�,� • • • • • • 01/15/2007 13:53 3234360803 LYNNETTE SHAW PAGE 02 • • • ,�,�i " • � ���► ��,�� �-��� �..��-ems. �� • • • « � . • • • V • � ;� � , � 3 � to ���. LX� • _ 67 i • • January 9, 2007 To Whom It May Concern: i 1 am writing on behalf of Maricare. I would like to state at this time I do not require the use of cannabis for my illness, 1 am all for the use of cannabis for medical reason's. It would be great comfort to know, if I ever did need to . use cannabis that Maricare would be available for my medical needs. 1 am the resident manager of Aspen Court Apartments; which is located • next door to Maricare. I have no problems with any of Maricare's patience coming and going to pick up their medication. Sincerely, Ruben Bustillos (resident manager Aspen Court Apartments) • 121 Aspen Dr. Pacheco, CA. 94553 January 9, 2007 To Whom It May Concern: I am writing in concern of Maricare, located @ 127 Aspen Dr. Pacheco, Ca. 94553. It has been brought to my attention that there have been some complaints by a person who claims to be the head of the Neighborhood • Watch program about the activities that go on, in and around the • property of Maricare. This person lives one and a half blocks away from Maricare @ 111 Aspen br. Pacheco, Ca. I live right next door to maricare @ 121 Aspen Dr. #204 Pacheco, Ca. My apartment faces in full view of Maricare. I can honestly say that Maricare is run very professional. I have never seen or heard anyone hanging out or loitering near or on Maricare property. I would also like to point out the importance of cannabis to myself, for • the reason that I am living with Aids, and for the many other people • with other medical problems that require cannabis. If I was not able to . have safe access to get cannabis from Maricare, then I would have to go back to taking Marinol (a man maid pill form of cannabis) which is no S were near as effective as cannabis, and it cost the state of California $1,200 per month for my prescription. That is $14,400 every year for one person's prescription of Marinol. With Maricare being open, I pay for my own medication (cannabis) and do not require the state to pay for Marinol. Also, the overall results of using cannabis, I feel, are really i making it possible for me to live longer. Nobody,has the right to take my life away. I feel if Maricare is closed, in a sense that would be taking my life, or at least shortening it. I say this because Maricare provides me with the medicine (cannabis) that is helping me to live longer. Sincerely, i Rick A Dallman • 121 Aspen Dr. #204 Pacheco, Ca. 94553 (925) 451-7947 To Contra Costa County Board of Supervisors This letter is to support MariCare at its current location of 127 Aspen Drive. Pacheco, CA. It is located in the Commercial Zoning 01 area with several other • businesses. There couple of dental offices,a 7-eleven store, a couple of casinos, a fire station. A safety plus is that not to far is the sheriff's dept and the CHP office. This zone has other businesses there for medical reasons, for example the dental offices, which are there to help people. MariCare is also there to help those who need • help. MariCare should remain in its current location just as the dental offices and all of the other businesses close by. It is discreet as well as watched. MariCare's business is very serious and does not tolerate any misconduct. MariCare has strict rules that are enforced at all times. Employees and cameras also monitor MariCare at all times. I do not think the Contra Costa County Board of Supervisors would target MariCare for being a medical Cannabis provider. MariCare works with Contra Costa County, there Supervisors and the surrounding community. • Prop. 215, passed by the people of California, is to allow the use of medical Cannabis. Contra Costa County needs medical cannabis providers. I have seen a fair share of medical cannabis providers in other counties and MariCare is the best example of what a medical cannabis provider should be. MariCare is always looking at ways to • improve its operation and relations with the surrounding communities. • As a registered voter and a member of this county for 38 years, I am proud to have MariCare as a part of my community. I do not believe there is any misuse of the land approx. 300 yards away from a Casino. If this is not the right zone then where is? MariCare only wants to help those who are in desperate need of getting medicines that • pharmacies will not supply. In a safe and controlled environment MariCare provides People such as Aids patients, Cancer patients, people with disabilities, people with glaucoma and the list goes on, with medical cannabis. All of them and I rely on MariCare. MariCare is also able to provide handicap access, a medical doctor and a lot of • other medical resource information. • I have faith in my Board of Supervisors to see the need for a medical Cannabis provider and let MariCare stay in its safe location of Pacheco (close to the sheriff's dept) or please make there location in the proper zone. Respectfully Yours Mark Garris • Martinez, CA. KEEPING AN UPSTANDING CANNABIS PROVIDER LIKE MARICARE HELPS TO STOP ILLEAGAL CANNABIS SALES ON THE STREETS OF OUR • COMMUNITY i • • To The Contra Costa County Board of Supervisors; Recently I've had to think good long about how Maricare at 127 Aspen Dr., Pacheco fills the need for so many medical marijuana patients that reside in the county. First let me say that, as a patient Maricare has been kind respectful and courteous to my needs. They have a nice clean well-run space that seems well built for distributing medication. I feel safe with their parking lot security and feel the entry exit doors are a nice touch. Maricare's location at 127 Aspen Dr., Pacheco is ideal for me because it's • within half an hours drive from home. Living in concord it can be time consuming and costly traveling far distances once or twice a week to acquire medicine, it's hard budgeting for my meds as it is. Working full time it can be near impossible to find any time to drive 60 miles round trip even once a week.*Then theirs the fact that spending • capitol in my home county might end up funding local public works and otherwise go right back to the community I live in. Over all I feel their in just the right location, theirs adequate parking, restrooms, it really is suited for its purpose. • It would be sad and costly for me to have Maricare at 127 Aspen Dr., Pacheco relocated out of the county. If that happened Id need to drive out to San Francisco or Alameda counties to get my medicine when Mari care is already set up to fill the need hear and now. Please consider the number of medical marijuana patents in Contra Costa • County and the need for them to have safe and local access to affordable and effective ` medication. • Thank you kindly S ay Smith • • January 8, 2007 Dear Sir/Madam: Supervisors r SUBJECT: JAN. 16, 2007 MEETING TO REVIEW LAND USE ISSUES WITH MEDICAL CANNABIS PROVIDERS: r I/We are writing this letter to let the board of supervisors of Contra Costa County know that MariCare located at 127 Aspen Drive in Pacheco, CA. 94533 is providing a much needed service to the local medical marijuana community. I/We understand that the county claims that MariCare is in violation of land a zoning ordinance. Well this should be easily solved by the board deciding what type of zoning is needed for a medical cannabis provider. Unless this is another attempt to close them down because I/We understand that there is no provision in the zoning ordinances for this type of business. So we seem • to be in a catch 22 situation. The board can easily solve this problem. Kaiser has a pharmacy set up in the Delta Fair shopping center in Antioch so . this should be a non-issue for the county. The board should use MariCare as a premiere example of a medical cannabis provider and set an example for other counties throughout the state. MariCare has worked with local law enforcement (Sheriffs office) to improve there facility to provide an extremely safe environment for there patients. If not for MariCare I/We would have to travel out side the county • to Oakland or San Francisco, causing an inconvenience and maybe a hardship for us. Also is BART federal property and by riding it to get • medication am I now under federal laws, instead of state laws which permit . possession of marijuana? MariCare provides much needed medical marijuana for patients who get relief from real problems without the side effects caused by other prescription drugs. They DO NOT ALLOW people who don't have the proper identification and doctors recommendations to enter there business. They are located in an area with other professional businesses such as • lawyers, architects and other medical offices. They offer privacy for their patients unlike clubs in other counties. They provide and adequate and ` secure parking at no charge. Their facility is wheel chair and handicap r • • . -2- January- 8,2007 accessible to the point that when there parking lot was being repaved they had transportation to an alternate parking facility. In addition MariCare employees 10 to 15 people that other wise might be unemployed. This means that MariCare pays taxes and is a small/medium business in the community and provides resources to the county that any other business would, and should be treated as so, even though the board may not like their type of business. So in closing I urge the board to realize that medical marijuana has been legal in this state for ten years now and it is time for the supervisors to do their job and provide a way for patients to get there medication in a safe and r efficient manor. By solving this zoning issue and letting MariCare continue to operate will let this happen safely and efficiently. I urge the board NOT to try and set up a county operated dispensary program: Costing the taxpayers lots of money. The county is not in the business of filling prescriptions, but does have the job of regulating such business. So once again I urge you to use the valuable resources MariCare has to offer and develop a premier • system that other counties can copy and use through out the state. • Sincerely, Dwayne E. Thomason Vickie L. Thomason 2225 Begonia Ct. • Pittsburg, CA. 94565-4424 • (925) 439-8799 S • • • • • • • • Micheal J. Hani 600 J St. #206 • Martinez CA, 94553 Board of Supervisors, • Thank you for taking the time to read this for I know you are very busy. Please accept this document as my testimony to assist you in your decision. . The MariCare facility located at 127 Aspen Dr. in Pacheco has been a godsend. • The location of the MariCare facility has made obtaining my medication much more convenient and a lot safer. In the past I would have to commute a 6 hour round trip to purchase my medication legally. Also, my medical condition would make the drive • almost unbearable. The MariCare facility provides ample parking and wheelchair access. The location is always well kept and maintained thus providing a safe and secure environment for its patients. The care and professionalism exhibited by the staff at MariCare has always been outstanding. Thank you for your attention to this matter and I certainly hope that this helps in your final decision. God Bless!!!! • Thank You, • Miche J. Hani • • • • • • • • • • • • • • • • • • • • M • • Maricare to me is a safe, reliable dispensary. I am very fortunate to have met and rely on such nice people. Every time I am there, the staff at Marycare is very helpful and friendly. I feel very comfortable at the location they have chosen and I think it is a great M area for patients that live in Contra Costa County. Many patients rely on Marycare and it would be devastating if anything happed to it. Thank you. • Nick Scotty • • • • • • • • • • • • • • • • • • • • • i • • To Contra Costa County Board of Supervisors This letter is to support MariCare at its current location of 127 Aspen Drive. Pacheco, CA. It is located in the Commercial Zoning 0l area with several other • businesses. There couple of dental offices, a 7-eleven store, a couple of casinos, a fire station. A safety plus is that not to far is the sheriff's dept and the CHP office. This zone has other businesses there for medical reasons, for example the dental offices, which are there to help people. MariCare is also there to help those who need help. MariCare should remain in its current location just as the dental offices and all of the other businesses close by. It is discreet as well as watched. MariCare's business is very serious and does not tolerate any misconduct. MariCare has strict rules that are enforced at all times. Employees and cameras also monitor MariCare at all times. I do not think the Contra Costa County Board of Supervisors would target MariCare for being a medical Cannabis provider. MariCare works with Contra Costa County, there Supervisors and the surrounding community. • Prop. 215, passed by the people of California, is to allow the use of medical . Cannabis. Contra Costa County needs medical cannabis providers. I have seen a fair share of medical cannabis providers in other counties and MariCare is the best example of what a medical cannabis provider should be. MariCare is always looking at ways to . improve its operation and relations with the surrounding communities. • As a registered voter and a member of this county for 17 years, I am proud to have MariCare as a part of my community. I do not believe there is any misuse of the land approx. 300 yards away from a Casino. If this is not the right zone then where is? MariCare only wants to help those who are in desperate need of getting medicines that pharmacies will not supply. In a safe and controlled environment MariCare provides People such as Aids patients, Cancer patients,-people with disabilities, people with glaucoma and the list goes on, with medical cannabis. All of them and I rely on MariCare. MariCare is also able to provide handicap access, a medical doctor and a lot of • other medical resource information. I have faith in my Board of Supervisors to see the need for a medical Cannabis provider and let MariCare stay in its safe location of Pacheco (close to the sheriff's dept) or please make there location in the proper zone. j Sincerely, Christine Garris Martinez, CA. KEEPING AN UPSTANDING CANNABIS PROVIDER LIKE MARICARE HELPS TO STOP ILLEAGAL CANNABIS SALES ON THE STREETS OF OUR • COMMUNITY To Whom It May Concern: As a medicinal marijuana patient to treat my disorder, Maricare First Harvest Alternative is very important to me. First, Maricare provides a safe, clean, and secure atmosphere for myself, along with many other patients to access this alternative medicine. Secondly, I believe that Maricare is a dependable facility that provides a medicinal alternative to many patients in Contra Costa County, who are in the same position as I am. Maricare pays close attention to the care of the patient, suggesting an array of different types of medicines that are derived from the tetrahydrocannabinol chemical found in the marijuana plant. The variety of medicine spans from edibles, concentrates, to tinctures, to the highest grade of the plant itself. This variety and availability of being able to access the medicine through different means other than just smoking is very beneficial to some who are in severe health consequences or to patients who prefer not to smoke. The facility is S particularly clean, the staff is very helpful and knowledgeable, and I feel safe every time I visit the facility. Thank you, S Dann Costa r TO: Board of Executives RE: Medicare • Dear Board Members, • I feel that you would be doing a disservice to the community if you shut down Maricare. The have a safe • and comforting enviornment for patients such as myself. The provide a secure atmosphere with safe parking and regulations to accommodate the residents around the office. I do understand that it is a • residential area,but if you are talking about the sales of services,there are plenty of doctor and dentist offices that sell their services for health reasons. I feel that the case is the same here. Please don't make the people of Central and East Contra Costa County have to suffer. This facility has been the best thing for • me because I don't have to go far and they do deliver when I can't make it to them. Instead of shutting them down you should allow Maricare time to relocate in a more commercial like atomosphere. I have Multiple Sclorosis and w/out my meds I can't eat, sleep,relax or concentrate long enough to take care of • real business because my condition is preventing me from making decisions. Maricare makes it possible for people like me to continue the day with minimal to no pain. Please consider letting them run their business out of the Aspen location as they find and set up the new locations so they can continue to help the communtiy. • Sincerely, Porsche' Jones To whom it my concern, 4/28/2006 I wanted to write you to tell you what a great facility Mari care in Concord Ca off Aspen is I have been a patient for more than a year and really enjoy the staff as well a the Medication provide for the patients. I have been to many facilities clamiAg to be like Mari Care and none came close. I feel very comfortable in the setting in witch they are in w and the staff members that treat you all equally and provide assistance to your car to feel safe and secure. I was very upset to find that there is a problem with Mari care in Contra Costa County and wanted to let you know that this is a great facility and I as a cancer Survivor and needing the medication to live a normal life without them in Contra Costa County I would be without medication and would not have made it through Chemotherapy without them. So please don't move or shut down facility patients like me need a good place to get good care and medication you can trust. Thank You, Sincerely, Crystal Gonsalves To whom this may concern, • Over the past year, I have been a member of the Oakland cannabis patient's group and have had the opportunity to go to a few locations. Because of the location, security, and patient care I have found a great place to go, MARICARE! With the constant surveillance and the government officials ready to make seizes at any moment, a good knowledge of the law and the proposition is a must! In order to keep patients safe and secure, following the rules and regulations is also a must! And lastly, the compassion and commitment to patient care is also a must! Keeping these three in mind...I use MARICARE because of there compassion, • security, location, and last but not least, they follow the rules and regulations of city and state, as they should. I heard about this new zoning thing and have become really worried! MARICARE is a very safe and secure place to get medicine and the help that I • need! They always have someone there watching out for anything that could go wrong; they even go the point of having a security person there 24hrs a day! Including the security, the location is also extremely good. It's hidden from the general public, in a safe area, and the building/parking lot is always clean and always attended by some sort of security! Along with cameras and security doors, MARICARE is the safest place I have been to. As the say, safety is a must! But along with security comes rules. I have seen the security tell people/patients to leave, that don't follow the rules! The also make sure the people in the parking lot are also secure and following the rules. Not only does the rules apply to inside the premises but also outside the parking lot and also down the street! MARICARE has secured the environment in order to help their patients and also to follow the rules and guidelines, which need to be followed! Not only is MARICARE safe, it seems like that general area is also safer, because of there security and constant surveillance, which gives patients a good environment and a safe environment! It's a good zone, because its hidden, it's a relatively new building, which includes handicap access, its secure location, its in an area that is well secured, and in a area that patients can come to and still be safe! I hate to say it but most of the clubs are in areas that many people do not go to because it is really s unsafe for them and their vehicles! I wrote this letter because working 40+hours a week, I will not be able to attend . the meeting about this matter and wanted to inform the decision makers of how safe and secure MARICARE is! I also wanted to state the good location and as well as informing you of how MARICARE•follows the rules, regulations, and also how they make their patients follow the rules! MARICARE is one of the best places in the area for patient care, as well as the medicine they provide! Closing them would create more havoc, distress, create more of a problem for patients, and the city would defiantly loose a lot! Sincerely, A PO Box 651 Clayton, CA. 94517 925-351-7458 i • i January 7, 2007 To Whom It May Concern: My name is Michael Callanta and I am a 40 year old construction worker. I suffer from anxiety and chronic back pain. The use of medical marijuana has saved my life. It makes me relax so I'm not so anxious. It also eases my back pain so that I can wake up another day to work in • construction. I use the facility in Pacheco, California, Maricare, to obtain my medication. If that i facility is closed, it will cause an extreme hardship. I live in Concord and it is very convenient to obtain my medication there. If I have to go farther, it will cause further anxiety. Please do not close this facility because me and others like me really need it. It is a very • dependable establishment and the medication eases all of my symptoms. The workers seem to care about me and others like me. Thank you very much. Sincerely, • • Michael Callanta MVC: jc • • • AA✓'ham :�, s ,l .rim z-y=x-53 t ,�t • • i • • • • • • • • • • • • • • • • • • • • • • a • • • • • 00 4,Q Rm� OMOLX i rz� K�OA . 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T SS r q C 7/ S cos 44S TO � T VJ,' L 40 S� �r17 � M©macs) .L LS I i YFtcu u-i� 4'aE2 • '71 41JS PIAS . p s �}-� 1v vt/ A4 (? c PI Q F- T;E:3 /�� iN�� �e ��d ► N �%S' CQFAT 1 I/� . y w • • • • i • i • • • ca avc�, ('s vvt-,L� lvv�t • w r to tAll C,( o • -rte, • ItIs- ss GAO • • • • • • • • • • • • • • • • T� `-��C.v+C:� ��t3�.j1i �' �'( i H-S 1-- t-'H ��' �U�Y • • • • A Cie . • • • &N/©� . • %`_� .,/ . .� � I �Z. off- - • • • • • • • • • • • • • • • • 7 • Ak • -17 44 7, • V// a • �1���� lei l� • • yes �� � ���� • • • • • • • • • • FROM JAMES ANTHONY FAX NO, T . 2007 C' Vin. 1>3 pS: 16FM P1 • JAMES ANTHONY, Attorney 1 Law offices of,lames Anthony JAN 1 g 2007 I 2 3542 Fruitvale Ave., 351 - -- Oakland, California 94602 GoiviHAlJ 3 Telephone: (5 10) 207-6243 Fax (510) 228-041 i 4 Attorney for Appellants 5 MariCare First Harvest Alternativea California mutual benefit nonprofit corporation, 6 tenant; and Nettie Pineda, Anita F�,ias and Richard E. Frias; all as joint tenants, owners 7 APPEAL TO THE CONTRA COSTA COUNTY 8 i BOARD OF SUPERVISORS FROM THE NOTICE AND ORDER TO ABATE 91 (CCCC 14-6.410) OF AUGUST 8, 2006 RE: 127 ASPEN DR, PACHECO 10 (APN '125-140-027) 11 BOARD OF SUPERVISORS HEARING 1116107 12 AGENDA ITEM D.3 13 • TO THE CHAIR OF THE BOARD l 14 VIA FACSIMIi_E ONLY TO 925/335 1913---2 PAGES TO-1-Ai_ 15 161 ADD ITIONA.l. 1yRL1TT� EN OBJECTIONS 17 SUBMITTED AT THE.REQ EST OF TI- E C HAIR 18 9 The following objections, mage orally before the board, are here re-iterated in 20 writing at the request of the Chair. Other objections were previously made in writing prior 21 to the hearing. 22_ 1. Appellants object that the proceeding denies then, due process of law 23l because the County Counsel's office represents both the prosecuting department and the 24 � Board itself in its quasi-judicial role in hearing this appeal, which conflicted representation 25 undermines the Board's impartiality and fairness, and creates vias in favor of the • 26 j prosecution. f. PROM JAMES aN rHOhl r' FAX NO. 510 r 1 6990Tdn. i 8 ?907 05: 17PM P2 .1 2. On January 11, 2007, Appellants submitted a written request for information 2 on other medical cannabis collectives (or medical marijuana dispensanes as the County 3 refers to them) in the. County's jurisdiction. Appellants have accepted the County's oral 4 representation that no zoning files exist on any other such facilities and no zoning actions, 5 forma or informal, have beer taken against them. Appellants reserve the right to have this 6 { rPprPsPntafinn rnnfirmed in writing. or to receive such f4s and documentation of any cuoh 7 actions, if the representation is incorrect. 8 !, g Dated- January 18, 2007 12 AME5 ANTHONY • 13 Attorney for App ants / 14 15 16 � I 17 � 18 i` 1 I I 201 21 i { 22_ 23 24 25 • 26 a a� � � c 00 V .d Gilb �� s s 3 -ti O'r T 3 O O •U y p" t - b 00 r � '. 00 O � C v� CL CL E O CIL , bA C `' 7 avow r �y. 'gk�w+z 4'w jp, :r:#'a�'ll.�.�" ■Incl ..skvµ{. - �� � ,... ... _ EFT � ,77 7,:iK, t r.C snNca ■ r sP W 00 00 V C y H L ¢t 1 � O 1 �1 W in v v - M E t O MbL � C �3 a, � 3 00 od H "'Ake •� �' CS G t c En bc cS pA i cam = Ow F' R7 p •T X v ai [i c p 'fl Q ci } a n c c ■ tog l3L b o o � o � � h m � 17- '1E.1 c x D '{ $t„ �t 0 00 0 C -- o c °A 0 2 x s L ^ 3 x � c x W � o 10 b a 4 C D o .3 � a N C i d 22 . . y .2 � $ wƒ � �- »_ 00 � > o c � � q ƒ % § / 9 k \ § u CL uz / 2 �> Q § 0 \ 6 L i t l Z.5 ( 000 00 b G 2 c O cr 3 f b � 00 L c u y' b oU bU M ti CV r E Q V Photograph 9 ( EXHIBIT 5 ) - Taken on 8/8/06 showing one of the tables in the managers business office showing the pre paid MariCare card display. VL— .�� ., , ,, � _ y� -�s A >i� .. ty ■� ■ s. � � � �� f! f ,/ �'� ��. .�- , _ a� 'v s w c a� ._ �, :� � U �� .. . ,o � C !.l 00 t = J 'RP;1� C � Q� ty � O I � Q� O � ...y �a. a.d � �.kJ _0 O � . � �A . CU) ƒ tom k \ o � n o � % - _ to = o � ƒ c .2 9 � ( u � 2 � \ 00 `o 00 QJ � o • o :, � c O X oA U U b C- cs bA =_ � •bA 3 2 o O JIM f k • The Following Pages Are Public Comment Information • tNUNITED STATES COURT OF APPEALSti,+ 10ir FOR THE NINTH CIRCUIT S No. 98-16612 D.C. C. No. 6 CV 98-2651 SI J V � Q S� BAY AREA ADDICTION RESEARCH 5L V") AND TREATMENT, INC.; CALIFORNIA DETOXIFICATION PROGRAMS,INC.; RON KLETTER,Ph.D.; VICKI ROE; SUSAN COE; RHONDA LOE; RAY DOE; OSCAR VOE; CINDY MOE• ROBIN POE; MARY FOE, Plaintiffs-Appellants, V. U CITY OF ANTIOCH, l ' Defendant-Appellee, ro c6rs �JA � 0 Appeal from the United States District Court for the Northern District of California C� I c Susan Y. Illston,District Judge,Presiding Argued and Submitted P7 January 12, 1999—San Francisco,California C�()-7� S V-' Filed June 3, 1999 Before: Joseph T. Sneed,eed,A. Wallace Tashima, and I I In g�r Barry G. Silverman,Circuit Judges. g Opinion by Judge Tashima COUNSEL�C Y4 7— 7 75/ Amitai Schwartz, Law Offices of Amitai Schwartz ifornia, for the plaintiffs- appellants. She¢ Iq f�� �d0 v e 1/ .5#; Z U,l/eC 5 LW K rne�y Gary M. Lepper, Lehr, Schaefer, & Ham`ngton, Walnut Creek, California, for the defendant-appellee. 1680 OPINION 61 Sl9 http://Iw.bna.comAw/19990622/9816612_htm 8/26/05 r UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 98-16612 D.C. No. CV 98-2651 SI BAY AREA ADDICTION RESEARCH AND TREATMENT, INC.; CALIFORNIA DETOXIFICATION PROGRAMS, INC.; RON KLETTER, Ph.D.; VICKI ROE; SUSAN COE; RHONDA LOE; RAY DOE; OSCAR VOE; CINDY MOE; ROBIN POE; MARY FOE, Plaintiffs-Appellants, V. CITY OF ANTIOCH, Defendant-Appellee- Appeal efendantAppellee.Appeal from the United States District Court for the Northern District of California Susan Y.Illston,District Judge, Presiding Argued and Submitted January 12, 1999—San Francisco,California Filed June 3, 1999 Before: Joseph T. Sneed,A. Wallace Tashima, and Barry G. Silverman, Circuit Judges. Opinion by Judge Tashima COUNSEL Amitai Schwartz, Law Offices of Amitai Schwartz, San Francisco, California, for the plaintiffs- appellants. Gary M. Lepper, Lepper, Schaefer, & Harrington, Walnut Creek, California, for the defendant-appellee. OPINION http:/Aw.bna.comAw/19990622/9816612.htm 9/4/05 I TASHIMA, Circuit Judge: In 1998, Bay Area Addiction Research and Treatment, Inc. ("BAART") and California Detoxification Programs, Inc. ("CDP") tried to relocate their methadone clinic to the City of Antioch, California. After BAART and CDP received notice from Antioch that the proposed location could be used for such a clinic under Antioch's zoning plan, the Antioch City Council enacted an urgency ordinance prohibiting the operation of methadone clinics within 500 feet of residential areas, thereby precluding the use of the proposed site. BAART, individual patients of BAART, CDP, and Dr. Ron Kletter, the executive director of both, (collectively "Bay Area")brought suit against Antioch pursuant to Title 11 of the Americans with Disabilities Act("ADA"), 42 U.S.C. §§ 12131-65, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794, among others. The district court denied Bay Area's motion for a preliminary injunction enjoining the urgency ordinance. Bay Area appeals, contending that the district court applied the wrong legal test to its ADA and Rehabilitation Act claims and misjudged the irreparability of the harm it would suffer if an injunction did not issue. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). We hold that Title U of the ADA and § 504 of the Rehabilitation Act apply to zoning ordinances, and that the district court abused its discretion by applying the wrong legal test to Bay Area's ADA and Rehabilitation Act claims. Accordingly, we reverse and remand. I. BAART has operated a clinic for 13 years in a municipal courthouse in Pittsburg, California, that provides outpatient methadone treatment to people who have been addicted to heroin. CDP provides short-term outpatient heroin detoxification services at the same location. Although BAART and CDP are distinct entities, they work closely together at clinic locations throughout California. BAART and CDP plan to share space at the location at issue in this case. We will use the abbreviation "BAART" to refer to both BAART and CDP in this statement of the facts. On December 2, 1997, Contra Costa County notified BAART that its lease of office space in the Pittsburg courthouse would be terminated on September 30, 1998, because the County needed the premises for other uses.1 BAART began to look for a site to which it could relocate near Antioch or Pittsburg, as approximately one-half of BAART's patients reside in one city or the other. BAART set forth six criteria for its new location: (1)proximity to Antioch or Pittsburg, (2) accessibility to public transportation, (3) approximately 5,000 square feet in size, (4)compliant with building codes, (5) parking for approximately 20 cars, and (6) availability for purchase or long-term lease with an option to purchase.2 After searching for several months, BAART found a location in Antioch (the "Sunset Lane site ) that satisfies these criteria. While the Sunset Lane site was at one time occupied by a medical practice and shares a street with many medical and commercial offices, it abuts a residential neighborhood. On April 15, 1998, the deputy director of Antioch's Community Development Department notified BAART in writing that a clinic like BAART's would be a permitted use of the Sunset Lane site under Antioch's land use plan. 3 Subsequently, on April 27, 1998, BAART filed a business license application for the Sunset Lane site. The next day, Dr. Kletter and his wife orally agreed to purchase the site, and on May 18, 1998, they entered into a written purchase agreement.4 By mid-April, 1998, Antioch residents had learned of BAART's plans for the Sunset Lane site and began to express their concern that the methadone clinic would result in an increase in crime and drug abuse near Sunset Lane and throughout Antioch. The issue was addressed at the April 28, 1998, Antioch City Council meeting, at which many residents commented on the proposed use of the Sunset Lane site.5 Following this hearing, the City Council unanimously approved Ordinance No. 938-C-S, an urgency ordinance, pursuant to section 65858 of the California Government Code, which authorizes a http://lw.bna.comAw/19990622/9816612.htm 9/4/05 city to prohibit a land use for 45 days in order to study the proposed use. See Cal. Gov't Code § 65858 (West 1999). The ordinance forbids the issuance of any permits to or the operation of any new substance abuse clinics, including methadone clinics, located within 500 feet of any residential property. On June 9, 1998, the city council approved Ordinance No. 941-C-S, another urgency ordinance, that extended the effective date of the original ordinance to April 10, 1999.6 The second ordinance amended the first ordinance so as to prohibit only methadone clinics from operating within 500 feet of any residential property. The "Legislative Findings and Conclusions" accompanying the second ordinance included both statistics and generalities from which the city council concluded that "ft]he proposed methadone clinic at its proposed location represents a current and immediate threat to the public peace, health, safety and welfare." Specifically, the city council found that the methadone clinic would attract drug dealers and lead to an increase in crime in the area surrounding the clinic.7 The ordinance provided for further studies of the impact of methadone clinics on nearby residences and children. Antioch and BAART subsequently tried to find an alternative site for the clinic, but no agreement was reached. On July 6, 1998, Bay Area brought a class action lawsuit against Antioch under the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983, for violations of the Supremacy, Due Process, and Equal Protection Clauses. Bay Area sought a declaratory judgment that Ordinance No. 941-C-S was unlawful and a permanent injunction enjoining Antioch from enforcing the ordinance or otherwise interfering with Bay Area's use of the Sunset Lane site as a methadone clinic. Soon thereafter, Bay Area moved for a preliminary injunction and Antioch filed a motion to dismiss. The district court denied Bay Area and Antioch's motions, holding that zoning is an activity covered by the ADA and the Rehabilitation Act, and that appellants are qualified individuals with disabilities, entitled to protection under both statutes. See 42 U.S.C. § 12131 (1999). The district court decided, however, that at this stage in the litigation, Bay Area had neither demonstrated that it would be irreparably harmed if the court refused to issue a preliminary injunction not that it was likely to prevail on the merits. Bay Area argues that the district court erred in refusing to issue a preliminary injunction because the district court considered whether there was an alternative location that would constitute a reasonable accommodation of both sides' interests. Under a test that looks solely to whether a law discriminates on the basis of disability, Bay Area contends, it can show that it is likely to prevail on the merits. Bay Area also contends that it will be irreparably harmed if a preliminary injunction does not issue. U. We review the district court's denial of a preliminary injunction for an abuse of discretion. See Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir.), affd sub nom. Saenz v. Roe, No. 98-97, 1999 WL 303743 (U.S. May 17, 1999). A district court abuses its discretion if it " 'based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.' " Id. (quoting Cooter& Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)); cf. Koon v. United States, 518 U.S. 81, 100(1996) (adopting a single-tier formulation of the abuse of discretion standard of review). "A district court by definition abuses its discretion when it makes an error of law." Id. The interpretation of a statute is a question of law reviewed de novo. See Alexander v. Glickman, 139 F.3d 733, 735 (9th Cir. 1998). http://lw.bna.comllw/19990622/9816612.htm 9/4/05 [II. A. The Applicability of the ADA and the Rehabilitation Act to Zoning The district court held that the ADA and the Rehabilitation Act apply to zoning, a decision the parties do not contest on appeal. Because the issue is one of first impression in this circuit, however, we discuss it here. In so doing, we adopt much of the persuasive reasoning of the Second Circuit in Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997),8 and hold that these statutes do apply to zoning. As with all exercises in statutory interpretation, we begin with the ADA's text. Title II of the ADA addresses the provision of public services. Section 12132 of this title prohibits discrimination on the basis of disability by public entities.9 Section 12132 provides that "[s]ubject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132 (1999). 10 Section 12132 thus constitutes a general prohibition against discrimination by public entities. Other local public entities in similar cases have argued, as Antioch did below, that zoning is not a service, program, or activity, and therefore § 12132 does not apply. We reject this argument. The Rehabilitation Act broadly defines "program or activity" to include "all of the operations of a qualifying local government. 29 U.S.C. § 794(b)(1)(A) (1999). Because Congress has instructed that the ADA is to be interpreted consistently with the Rehabilitation Act, see Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); cf. Collings v. Longview Fibre Co., 63 F.3d 828, 832 n.3 (9th Cir. 1995)(noting that "Congress intended judicial interpretation of the Rehabilitation Act be incorporated by reference when interpreting the ADA"), we interpret § 12132 in light of this definition. The Rehabilitation Act and the ADA apply to zoning because zoning "is a normal function of a governmental entity." Innovative Health, 117 F.3d at 44; Armstrong , 124 F.3d at 1023 (finding § 12132 to "encompass[ ] all facets of state government"); cf. Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1174 (9th Cir. 1999) ("A common understanding of[the phrase "services, programs, or activities"] shows that it applies only to the 'outputs' of a public agency, not to 'inputs' such as employment."). Congress' stated purposes in enacting the ADA also support its application to zoning. Within the text of the ADA, Congress set forth its broad goal of"provid[ing] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. " 42 U.S.C. § 12101(b)(1) (1999). Congress found that individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society. 42 U.S.C. § 12101(a)(7) (1999). This sweeping language -most noticeably Congress's analogizing the plight of the disabled to that of"discrete and insular minorit[ies]" like racial minorities, see United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938)(defining religious, national, and racial minorities as "discrete and insular minorities"), — strongly suggests that § 12132 should not be construed to allow the creation of spheres in which public entities may discriminate on the basis of an individual's http-./Aw.bna.comAw/19990622/9816612.htm 9/4/05 disability. The ADA's legislative history buttresses our interpretation of§ 12132. For example, the report of the House Committee on Education and Labor suggests that at least this committee intended § 12132 to have a broad application. The Committee has chosen not to list all the types of actions that are included within the term "discrimination", as was done in titles I and III, because this title essentially simply extends the anti discrimination prohibition embodied in section 504 [of the Rehabilitation Act, 29 U.S.C. § 794 ] to all actions of state and local governments. H.R_ Rep. No. 101-485(II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367. Perhaps even more significant is the fact that the House bill's general prohibition against discrimination won out over the Senate bill's enumeration of general and specific prohibitions against discrimination. See H.R. Conf. Rep. No. 101-596, at 67 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 576. In other words, Congress specifically rejected an approach that could have left room for exceptions to § 12132s prohibition on discrimination by public entities. Finally, the Department of Justice's regulations and interpretations of those regulations in its Technical Assistance Manual support our conclusion that zoning is covered by the ADA.11 For example, the preamble to the regulations implementing § 12132 notes that "title II applies to anything a public entity does." 28 C.F.R. pt. 35, app. A at 438 (1998). Furthermore, the Technical Assistance Manual expressly cites zoning as an example of a public entity's obligation to avoid discrimination: Illustration 1: A municipal zoning ordinance requires a set-back of 12 feet from the curb in the central business district. In order to install a ramp to the front entrance of a pharmacy, the owner must encroach on the set-back by three feet. Granting a variance in the zoning requirement may be a reason able modification of town policy. The Americans with Disabilities Act: Title 11 Technical Assistance Manual ("TA Manual") § H-3.6100, illus. 1 (1993). In sum, "[w]e decline to draw an arbitrary distinction --to prohibit public entities from discriminating against persons with disabilities in some of their activities and not in others . . . ." Innovative Health, 117 F.3d at 45. Although we recognize that zoning is a traditionally local activity, Congress has spoken.12 Accordingly, we hold that the ADA applies to zoning. B. The Propriety of Injunctive Relief We hold that the district court abused its discretion by applying an erroneous legal standard to determine whether to grant Bay Area's motion for a preliminary injunction. To obtain a preliminary injunction, Bay Area must demonstrate either "a combination of probable success on the merits and the possibility of irreparable injury" or "that serious questions are raised and the balance of hardships tips in its favor." Roe, 134 F.3d at 1402 (internal quotation marks omitted) (citation omitted).13 We review the district court's decision for an abuse of discretion. See id. The district court denied Bay Area's motion for a preliminary injunction because it concluded that Bay Area had neither demonstrated that it was likely to prevail on the merits nor that it would be irreparably harmed if an injunction did not issue. With respect to Bay Area's likelihood of success, the district court found that to prevail on its ADA and Rehabilitation Act claims, Bay Area had to show that it has been " http-//Iw-bna.com/lw/i9990622/9816612.htm 9/4/05 excluded from participation in or denied the benefits of some . . . activity by reason of[its] disability,' and that the City has failed to provide a reasonable accommodation." (citing § 12132)(omission in original). This analysis, according to the district court, requires a balancing of Bay Area's interest in the operation of the clinic with Antioch's interest in its zoning scheme. Applying this test, the district court concluded that based on the record before it, it was neither persuaded that there were no alternative sites available in Antioch nor that Bay Area's criteria were inflexible. With respect to irreparable harm, the district court concluded that while Bay Area would be harmed if an injunction was not granted, the harm would not be irreparable because there were alternative sites available, though admittedly less advantageous ones than the Sunset Lane site. Bay Area argues on appeal that the district court incorrectly assessed Bay Area's likelihood of success on the merits by (1) requiring Bay Area to show that Antioch had failed to provide a reasonable accommodation, because facial discrimination is sufficient to establish a violation of the ADA, and (2) failing to recognize that the ADA prohibits unequal access and segregation, in addition to total exclusion. Bay Area further argues that it will suffer irreparable harm in the absence of a preliminary injunction because there is no viable alternative site for the clinic. We hold that the district court abused its discretion by applying an erroneous legal standard to determine whether the urgency ordinance is likely to violate the ADA and the Rehabilitation Act. We leave it to the district court on remand to apply the standard set forth below; accordingly, we do not express any view on Bay Area's likelihood of success on the merits.14 1. The Reasonable Modifications Test The reasonable modification test does not apply in this case because, here, the ordinance in question discriminates on its face. The district court derived its reasonable modifications test from the Justice Department's regulations, case law, the use of the term "reasonable modification" in § 12131(2),15 and the inherently discriminatory nature of zoning. We conclude that none of these authorities compels the use of a reasonable modifications test in this case. The district court is correct that the Justice Department's regulations set forth a reasonable modifications test for violations of§ 12132 of the ADA. 28 C.F.R. § 35.130(b)(7)provides that "[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7) (1998). The district court is also correct that we have applied this test in other cases brought pursuant to § 12132. The district court relied predominantly on our decision in Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996), in which visuallyimpaired individuals who use guide doss brought suit under § 12132 to challenge hawaii's policy of quarantining for 120 days all carnivorous animals entering the state. See id. at 1481. The policy discouraged individuals traveling to hawaii from bringing their guide doffs and residents traveling outside of haw.aii.from taking their guide dogs with them. See id. at 1482. We found the quarantine provision to discriminate against visually-impaired individuals and applied § 35.130(b) (7). See id. at 1485. Because there was a dispute as to whether the plaintiffs' proposed solution constituted a "reasonable modification," we remanded the case for further factual findings. See id. at 1485-86. As Bay Area argues, however, § 35.130(b)(7) makes little sense in the context of a statute that discriminates against qualified individuals on its face rather than in its application. Section 35.130(b)(7) http://Iw.bna.comAw/19990622/9816612.htm 9/4/05 requires reasonable modifications where necessary to avoid discrimination unless such modifications would fundamentally alter the statute in question. The only possible modification of a facially discriminatory law that would avoid discrimination on the basis of disability would be the actual removal of the portion of the law that discriminates on the basis of disability. However, such a modification would fundamentally alter the ordinance. As applied to this case, for example, the urgency ordinance could only be rendered facially neutral by expanding the class of entities that may not operate within 500 feet of a residential neighborhood to include all clinics at which medical services are provided, or by striking the reference to methadone clinics entirely. Either modification would fundamentally alter the zoning ordinance, the former by expanding the covered establishments dramatically, and the latter by rendering the ordinance a nullity. In other words, if§ 35.130(b)(7) applies to instances of facial discrimination, cities could easily evade the strictures of the ADA by making statutes expressly discriminatory. Surely this is not what Congress intended when it enacted § 12132 as an absolute prohibition against discrimination. The case law employing a reasonable modifications test does not provide otherwise. For example, the Crowder court expressly found that hawaii's policy constituted a case of disparate impact discrimination rather than facial discrimination. See id. at 1484. Because the Crowder court did not discuss whether it would have applied a different test if the policy had been facially discriminatory, Crowder cannot stand for the proposition that a reasonable modifications test is required in this case.16 Likewise, § 12131(2), which mentions "reasonable modifications" in its definition of a "qualified individual with a disability," does not require a reasonable modifications test. Although Congress' use of the term "reasonable modifications" suggests that such a test might be proper, it does not follow that this test is required for all suits arising under Title Il. Finally, we reject the district court's suggestion that a reasonable modifications test is required because the inherently discriminatory nature of zoning is irreconcilable with the ADA. The breadth of the ADA's purposes and text reveals that localities remain free to distinguish between land uses to effectuate the public interest — they just must refrain from making distinctions based on what Congress has determined to be inappropriate considerations. Therefore, we conclude that § 35.130(bx7)'s reasonable modifications test does not apply to facially discriminatory laws. Instead, facially discriminatory laws present per se violations of§ 12132. 2. The Significant Risk Test Contrary to Bay Area's contention, the fact that the urgency ordinance violates § 12132 does not end our inquiry. Section 12131, which defines the class of individuals entitled to § 12132s protection, includes a test that evaluates the risk posed by an individual. Specifically, an individual who poses a significant risk to the health or safety of others that cannot be ameliorated by means of a reasonable modification is not a qualified individual under § 12131. The Supreme Court developed the significant risk test in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), a case involving a teacher who had been discharged because she had an active case of tuberculosis. See id. at 276. She brought suit under § 504 of the Rehabilitation Act on the basis that she was dismissed on account of her disability. The Court held that "[a] person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk. " Id. at 287 n.16. That is, the Court read the significant risk test into the Rehabilitation Act's definition of who constituted a disabled person for purposes of receiving § 504's protection. The Court noted that this test in most cases would require an individualized assessment of the facts if"§ 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns .. . as avoiding exposing others to significant health and http:/Aw.bna.comAw/19990622/9816612.htm 9/4/05 safety risks." Id. at 287.17 We applied the significant risk test to another Rehabilitation Act suit brought by a teacher transferred out of the classroom to an administrative position because he had AIDS. See Chalk v. United States Dist. Court, 840 F.2d 701, 707-08 (9th Cir. 1988). This court ordered the entry of a preliminary injunction in Chalk's favor because there was no evidence that he posed a significant risk to his students or others. "To allow the court to base its decision on the fear and apprehension of others would frustrate the goals of section 504." Id. at 711. The district court should have used the significant risk test to analyze the alleged threat posed by appellants, as part of its determination of whether appellants are qualified individuals under § 12131. Using this test in this context comports with both the Justice Department's Technical Assistance Manual and the ADA's purposes. The Technical Assistance Manual provides for a significant risk test: "An individual who poses a direct threat to the health or safety of others will not be 'qualified' [as an individual protected by title III." TA Manual § II-2.8000. The Manual defines a direct threat as the Arline and Chalk courts did: A "direct threat" is a significant risk to the health or safety of others that cannot be eliminated or reduced to an acceptable level by the public entity's modification of its policies, practices, or procedures, or by the provision of auxiliary aids or services. The public entity's determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability. TA Manual § U-2.8000. Furthermore, the significant risk test reflects Congress' goals for the ADA and the Rehabilitation Act. On the one hand, this test ensures that decisions are not made on the basis of"the prejudiced attitudes or the ignorance of others." Arline, 480 U.S. at 284. This is particularly important because, as with individuals with contagious diseases, "[flew aspects of a handicap give rise to the same level of public fear and misapprehension," id., as the challenges facing recovering drug addicts. On the other hand, the significant risk test recognizes that the ADA does not wholly preclude public entities from making certain distinctions on the basis of disability if those distinctions are absolutely necessary. The significant risk test provides public entities with the ability to craft programs or statutes that respond to serious threats to the public health and safety while insuring that these(rare) distinctions are based on sound policy grounds instead of on fear and prejudice. Antioch correctly points out that the significant risk test has its own reasonable modifications component. However, the significant risk test will not necessarily result in the same outcome as the district court's test. Under the significant risk test, the court must decide whether the individual poses a significant risk before it may proceed to ask whether a reasonable modification may eliminate the risk. See Arline , 480 U.S. at 288; Chalk, 840 F.2d at 708 n.l 1 ("As no significant risk is posed here, this is not a case involving the standards or limits of accommodation and we do not reach those issues."). The court must first determine whether an individual poses a significant risk. If he does, the court must then ask whether there is a reasonable modification that would counteract the risk. If there is, the individual is qualified for purposes of§ 12131. If the individual does not pose a significant risk, the court need never reach the question of whether there is a reasonable modification. Therefore, the district court's test http://Iw.bna.comAw/19990622/9816612.htm 9/4/05 prematurely reaches the reasonable modifications part of the analysis because the district court had not found that Bay Area was likely to pose a significant threat to the health or safety of the residents protected by the zoning ordinance. The next question is how to define a significant risk to health or safety. We find that the determination of whether a significant risk exists requires an individualized assessment of"[t]he nature, duration, and severity of the risk," and "[t]he probability that the potential injury will actually occur." TA Manual § 11- 2.8000. We do not purport to explore fully the contours of this test for all contexts. For purposes of this case, it is enough to note that "health and safety" includes severe and likely harms to the community that are directly associated with the operation of the methadone clinic. If supported by the evidence, such harms may include a reasonable likelihood of a significant increase in crime. Without speculating on the kind and quality of evidence needed to establish a significant risk, we note that in assessing the evidence, courts must be mindful of the ADA's express goal of eliminating discrimination against people with disabilities. See 42 U.S.C. § 12101(b)(1). As the Arline Court recognized, the Rehabilitation Act was meant to protect disabled individuals "from deprivations based on prejudice, stereotypes, or unfounded fear." 480 U.S. at 287; cf. Innovative Health, 117 F.3d at 49 ("Although [a city ] may consider legitimate safety concerns in its zoning decisions, it may not base its decisions on the perceived harm from . . . stereotypes and generalized fears."). Therefore, it is not enough that individuals pose a hypothetical or presumed risk. Instead, the evidence must establish that an individual does, in fact, pose a significant risk. Further, it should be emphasized that the risk must be of a serious nature. In sum, because the Antioch ordinance facially discriminates on the basis of the appellants' disability in violation of§ 12132, to establish a likelihood of success (or raise serious questions)on the merits, Bay Area need only show that the appellants are qualified under § 12131 to receive protection under § 12132. To do so, Bay Area must demonstrate that it is likely that appellants do not pose a significant risk to the health or safety of the community. If Bay Area cannot make such a showing, it must demonstrate that the risk it poses may be ameliorated by reasonable modifications. 3. The Possibility of Irreparable Injury The district court concluded that Bay Area had not demonstrated that it would be irreparably harmed in the absence of an injunction because there appeared to be other sites available. On appeal, Bay Area offers numerous arguments as to why the district court erred in finding that the harm did not rise to the level of irreparability. For example, Bay Area argues that the methadone patients face discontinuation of their treatment with the attendant threats of relapse, stigma, and emotional distress, and that there are no comparable, adequate sites available. We decline to reach these arguments because the district court may decide this issue differently upon remand, particularly in light of the fact that the availability of alternative locations or other facts may have changed since the district court first addressed Bay Area's motion for injunctive relief. IV. In sum, we hold that Title H of the ADA and § 504 of the Rehabilitation Act apply to zoning ordinances, and that the district court abused its discretion by applying the wrong legal test to Bay Area's ADA and Rehabilitation Act claims. Accordingly, we reverse the district court's order denying Bay Area's motion for a preliminary injunction and remand with instructions that the district court reconsider Bay Area's motion in light of the test set forth herein. http://lw.bna.com/iw/19990622/9816612.htm 9/4/05 REVERSED and REMANDED. FOOTNOTES 1 Pending this court's resolution of this appeal, BAART relocated to a modular unit in the back of the courthouse. 2 We express no opinion as to the reasonableness of these criteria. 3 The letter stated in relevant part: The General Pian land use for the site is Office and the zoning designation is [Planned Development]. Medical uses including clinics are permitted uses under these designations. The proposed occupant of the site, BAART Comprehensive Health Care Services, which is a clinic that provides medical and psychological services for drug and alcohol dependent patients, would therefore be a permitted use- 4 During the pendency of this lawsuit, the purchase agreement has been extended from month to month upon payment of a fee. 5 The residents' comments in large part exhibited sympathy for the people serviced by BAART but emphasized safety concerns, particularly for children, arising from the increase in crime that they believed would accompany the clinic, and the need to maintain neighborhood cohesion. For example, one concerned neighbor said, "[o]ur main concern here is the safety of our children and the security of our neighborhood." Another resident stated, "[w]e try to maintain a good image for our community, but the added influx of 200 felons as well as those who would prey on their misfortunes and addictions is more than I or the other residents can survive." A former resident of Pittsburg discussed his experiences living near the Pittsburg clinic: People hang around before and after their treatments. There's fighting and threatening of neighbors. Trespassing and property damage is a regular occurrence. Loud and abusive language. You have people begging for money, they come to your door, knock on your door and ask for food and money and whatever. Drug dealings happen all the time. Dr. Kletter also appeared before the city council. He testified that "by and large [methadone patients'] crime rate is reduced by 80 percent immediately. The longer patients remain in treatment, the better they do." He further stated: Within three months of treatment, 50 percent of the toxicology screens that we provide to each patient on a monthly basis are free of elicit opiates. As people progress, after six months, that number drops down to about 25 percent. After two years in treat ment, fewer than five percent of the toxicology screens we per form are positive for opiates. 6 This ordinance has subsequently been extended to be effective through April 10, 2000. 7 The findings included, interalia, that "[h]eroin addicts typically have a long history of criminal involvement," and that"[m]any heroin addicts pay for their habits from crime, often thefts from residences or muggings." Therefore, the city council apparently concluded that the clinic would pose a http:/Aw.bna.comAw/19990622/9816612.htm 9/4/05 threat of increased criminal activity in the area because many of the patients would continue to abuse illicit drugs. 8 The Second Circuit is the only circuit to have expressly addressed the applicability of the ADA to zoning. In Pack v. Clayton County, 47 F.3d 430 (1 Ith Cir. 1995) (table), the Eleventh Circuit summarily affirmed such a holding by the district court. Our interpretation of Title II of the ADA applies equally to § 504 of the Rehabilitation Act. See Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998) (noting that the language of the two statutes is "similarly expansive" and that "Congress has directed that the ADA and [Rehabilitation Act] be construed consistently."). 9 The City of Antioch is a qualifying public entity. See 42 U.S.C. § 1213l(1)(A)(1999). 10 Section 504 of the Rehabilitation Act contains a similar prohibition. 29 U.S.C. § 794(a) provides, "[n] o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794(a) (1999). 11 Title II expressly delegates authority to the Attorney General to promulgate regulations implementing § 12132's prohibition against discrimination. See 42 U.S.C. § 12134(a) (1999). We must give "[s]uch legislative regulations . . . controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute [delegating authority to the agency to promulgate regulations]." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). The Justice Department's interpretation of its own regulations, such as the Technical Assistance Manual, must also be given substantial deference and will be disregarded only if"plainly erroneous or inconsistent with the regulation." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)(internal quotation marks omitted)(citation omitted). 12 The Supreme Court has unanimously held that § 12132 covers another traditionally nonfederal area-- inmates in state prisons. See Pennsylvania Dept of Corrections v. Yeskey, 118 S. Ct. 1952, 1956 (1998). Anticipating such a holding, this court in Armstrong noted that the fact "[t]hat prison administration may be a core state function does not give us license to disregard clear congressional intent." 124 F.3d at 1025. 13 Antioch argues that a heightened standard of proof should apply under which Bay Area would be required to show a substantial likelihood of success because a preliminary injunction would effectively amount to a permanent injunction. We reject this contention for two reasons. First, the relief Bay Area seeks is a prohibitory injunction that merely preserves the status quo. See Regents of the Univ. of Cal. v. American-Broadcasting Cos., Inc., 747 F.2d 511, 514 (9th Cir. 1984) ("[T]he function of a preliminary injunction is to preserve the status quo ante litem," which is defined as " 'the last, uncontested status which preceded the pending controversy.' " (quoting Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963))). Second, Antioch may undo the effects of the preliminary injunction if it prevails on the merits by requiring Bay Area to cease using the Sunset Lane site as a methadone clinic. See Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222, 240 (S.D.N.Y. 1996), affd, 117 F.3d 37 (2d Cir. 1997). 14 Our discussion of the appropriate test for Bay Area's ADA claim applies equally to Bay Area's Rehabilitation Act claim; for the sake of simplicity, we will refer primarily to the ADA. http:/Aw.bna.com/lw/19990622/9816612.htm 9/4/05 15 Section 12131(2)defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2)(1999). Section 12132's prohibition on discrimination is limited to those who are qualified individuals under§ 12131. See § 12132 ("[N]o qualified individual with a disability shall . . . be subjected to discrimination . . . ." ). 16 The district court also relied on the district court decision in Innovative Health Systems. Although the district court in the Innovative Health case seemed amenable to the application of a reasonable modifications analysis, see 931 F. Supp. at 239,the Second Circuit did not mention such a test. Instead, the Second Circuit affirmed the district court's issuance of an injunction because the evidence suggested that the defendants were motivated by inappropriate prejudices. See 117 F.3d at 49. 17 For purposes of an individual with a contagious disease, this inquiry should include "[findings of facts], based on reason able medical judgments given the state of medical knowledge, about(a)the nature of the risk(how the disease is transmitted), (b)the duration of the risk(how long is the carrier infectious), (c)the severity of the risk (what is the potential harm to third parties) and (d)the probabilities the disease will be transmitted and will cause varying degrees of harm." Arline, 480 U.S. at 288 (quoting Amicus Brief for the American Medical Association at 19). Copyright ® 1998 by The Bureau of National Affairs, Inc., Washington D.C. http://lw.bna.com/lw/19990622/9816612.htm 9/4/05 510 531 6880 FROM J«MES ANTFI-JN1' FAX NO. 510 531 6880 Jan. 18 2007 05: 16PM P1 JAMES ANTHONY, Attorney 1 Law Offices of James Anthony 2 3542 Fruitvale Ave., 351 Oakland, California 94602 3 Telephone: (510) 207-6243 Fax: (510) 228-041 4 Attorney for Appellants 5 MariCare First Harvest Alternative, a California mutual benefit nonprofit corporation, tenant: and Nettie Pineda, Anita Frias and Richard E. Frias, all as joint tenants, owners i 6 I, 7 APPEAL TO THE CONTRA COSTA COUNTY 8 BOARD OF SUPERVISORS FROM THE NOTICE AND ORDER TO ABATE 9 (CCCC 14-6.410) OF AUGUST 8, 2006 RE: 127 ASPEN DR, PACHECO 10 (APN 125-140-027) 11 BOARD OF SUPERVISORS HEARING 1/16/07 12 AGENDA ITEM D.3 1 13 TO THE CHAIR OF THE BOARD 14 VIA FACSIMILE ONLY TO 9251335-1913-2 PAGES TOTAL_ y 15 1 16 ADDITIONAL WRITTEN OBJECTIONS 17 SUBMITTED AT THE REQUEST OF THE CHAIR 18 19 The following objections, made orally before the board, are here re-iterated in 20 writing at the request of the Chair. Other objections were previously made in writing prior 21 to the hearing. I 22 1. Appellants object that the proceeding denies them due process of law ' i 23 because the County Counsel's office represents both the prosecuting department and the 24 Board itself in its quasi-judicial role in hearing this appeal, which conflicted representation 1 25 undermines the Board's impartiality and fairness, and creates bias in favor of the i i 26 prosecution. ! i FROM JAMES•PHTF•OHY FAX NO. : 510 5,331 6880 Jan. 18 2007 05: 17PM P2 1 2. On January 11, 2007, Appellants submitted a written request for information 2 on other medical cannabis collectives (or medical marijuana dispensaries as the County 3 refers to them) in the County's jurisdiction. Appellants have accepted the County's oral 4 representation that no zoning files exist on any other such facilities and no zoning actions, 5 forma or informal, have beer. taken against them. Appellants reserve the right to have this 6 `� reprPsPntatinn rnnfirmeri in writing, or to m-r-eine such fibs and documentation of any cuah 7 actions, if the representation is incorrect_ 8 !f 9 j Dated- January 18, 2007 10 11 12 JAMES ANTHONY 13 Attorney for App ants / 14 E 15 ; 16 17 ' 18 19 2.0 21 22_ 23 24 25 2.6 it 510 531 6880 FROM JAMES ANTHONY FAX NO. 510 531 6880 Jan. 18 2007 05: 16PM P1 JAMES ANTHONY, Attorney 1 Law Officer, of James Anthony 2 3542 Fruitvale Ave., 351 Oakland, California 94602 3 l-elephone: (510) 207-6243 Fax: (51 U) 228-041 4 Attorney for Appellants 5 MariCare First Harvest Alternative, a California mutual benefit nonprofit corporation, � tenant-, and Nettie Pineda, Anita Frias and Richard E. Frias, all as joint tenants, owners 6 7 APPEAL TO THE CONTRA COSTA COUNTY � 8 BOARD OF SUPERVISORS f FROM THE NOTICE AND ORDER TO ABATE 9 (CCCC 14-6.410) OF AUGUST 8, 7006 RE: 127 ASPEN DR, PACHECO 10 (APN 125-140-027) 11 BOARD OF SUPERVISORS HEARiNG 1116/07 I 12 AGENDA ITEM D.3 13 -1-0 THE CHAIR OF TIME BOARD I Ii 14 VIA FACSIMILE ONLY TO 925/33.5 1913---2 PAGES TOTAL { 15 16 ADDITIONAL WRITTEN OBJECTIONS 17 SUBMITTED AT THE REQUEST OF THE CHAIR 18 19 The following objections, made orally before the board, are here re-iterated in 20 writing at the request of the Chair. Other objections were previously made in writing prior i 21 to the hearing 22 1 . Appellants object that the proceeding denies them due process of law 23 because the County Counsel's office represents bath the prosecuting department and thf. 24 Board itself in its quasi judicial role in hearing this appeal, which conflicted representation 25 undermines the Board's impartiality and fairness, and creates bias in favor of the 76 prosecution. i FROM JAMES ANTHONY FAX NO. : 510 531 6880 Jan. IS 2007 05: 17PN PZ 1 2. On January 11, 2007, Appellants submitted a written request for information , 2 on other medical cannabis collectives (or medical marijuana dispensaries as the County 3 refers to them) in the County's jurisdiction. Appellants have accepted the County's oral 4 representation that no zoning files exist on any other such facilities and no zoning actions. 5 forma or informal, have beer taken against them. Appellants reserve the right to have this 6 reprF.Rpntatinn rnnfirmprl in writing, or to receive Such files and documentation of any cuoh � i 7 actions, if the representation is incorrect. } g Dated- January 18, 2007 10 ' - �� - 11 12 AMES ANTHONY Attorney for App ants 13 4 i 14 I 15 16 17 II 19 I 2.0 I 21 1 22_ I i 23 I 24 2.5 26 Il 2 Building Inspection Depart*ntS Carlos Baltodano Contra Director of Building Inspection PROPERTY CONSERVATION DIVISION Costa NEIGHBORHOOD PRESERVATION PROGRAM RESIDENTIAL RENTAL INSPECTION PROGRAM County 651 Pine Street,4th Floor Martinez, California 94553-0152 PCD (925)335-1111 NPP (925)335-1137 • DEC 1 4 Z006 RRIP (925)335-1170 FAX (925)646-4450 CLERK BOARD OF SUPERVISORS .�-.... �a.•„ s° CONTRA COSTA CO. STA CpUR'� December 7, 2006 James Anthony Law Offices of James Anthony 405 14th St., Ste. 610 Oakland, CA 94612 Subject: Hearing on the Appeal of the Notice and Order to Abate 127 Aspen Dr., Pacheco, CA Dear James Anthony: We acknowledge receipt of your request for continuance of the subject hearing scheduled for December 12, 2006. Your request has been granted. The new hearing date is scheduled for Tuesday, January 16, 2007, at 1:00 p.m. in the Board of Supervisor's Chambers, 651 Pine Street, Room 107, Martinez, CA 94553. Sincerely, Phil Ludloph Building Inspector I PAL:prc cc: Clerk of the Board of Supervisors,Martinez Mark De Saulnier,District IV Supervisor Tom Geiger,Deputy County Counsel my documents/letters/maricare John Wilson 1840 Del Rio Drive Lafayette, CA. 94549 CCC Board of Supervisors RE: Please allow the medical marijuana dispensaries to remain open Thank you johnilson CONTRA COSTA COUNTY BUILDING INSPECTION DEPARTMENT AFFIDAVIT OF POSTING, SERVICE BY MAIL OR HAND DELIVERY STATE OF CALIFORNIA ) COUNTY OF CONTRA COSTA ) I declare that I am a duly appointed, qualified employee of the Building Inspection Department of the County of Contra Costa, State of California, that pursuant to Uniform Building Code Section 102 , Uniform Housing Code 1997 Edition, Section 1101 . 3 , and Contra Costa County Ordinance Code Chapter 14-6 . 4 Uniform Public Nuisances . X 1 . I deposited attached document (s)Notice To Comply in the United States Post Office in the City of Martinez, CA, certified mail postage prepaid, return receipt requested, to the persons thereinafter set forth and in the form attached hereto . X 2 . I posted the attached document (s)Notice And Order To Abate, on the structure on the property as herein listed. 3 . I have mailed a copy of the attached documents to the following persons C/O the County Clerk. 4 . Hand delivered. Nettie Pineda \ Anita Frias & Richard E.Frias as joint tenants Fairfield, CA 94534 Nettie Pineda 850 Weibel Circle Oakley, CA 94561 ' MariCare First Harvest Alternative 127 Aspen Dr. , Suite 101 Pacheco, CA 94553 Attn: Managing Director SITE: 127 Aspen Dr . , Pacheco, CA APN: 125-140-026 Said notices were mailed/posted on June 28, 2006 . I declare under penalty of perjury that the foregoing is true and correct . Dated: June 28, 2006 at Martinez , California . 1JCD CLERK r�teA —C ENFORCEMENT DFF-I-CER OWNER: Nettie ineda Anita Frias and Richard E. Frias all as Joint Tenants NOTICE AND ORDER TO ABATE flit �ap � C.C.C. ORDINANCE CODE 14-6.410 NOTICE IS HEREBY GIVEN that an illegal land use exists on property located at 127 Aspen Drive, Suite 102, Pacheco, Contra Costa County, California; APN: 125-140-026. The property is located in an 0-1 Limited Office zoning district. An inspection of the property was conducted on April 27, 2006. The inspection and additional evidence establish that a marijuana dispensary exists at the property. The marijuana dispensary on the property is an illegal land use in violation of Contra Costa County Ordinance Nos. 2006-12 and 2006-17, Ordinance Code section 84-44.402 and 84- 44.404, and Ordinance Code section 82-2.006. Ordinance No. 2006-12 was adopted by the Board of Supervisors on April 11, 2006. Ordinance No. 2006-12 is an interim urgency ordinance that established a moratorium on medical marijuana dispensaries. Ordinance No. 2006-17 was adopted by the Board of Supervisors on May 23, 2006. Ordinance No. 2006-17 is an interim urgency ordinance effective through April 10, 2007. Ordinance No. 2006-17 continues the moratorium on medical marijuana dispensaries established by Ordinance No. 2006-12. Section III of Ordinance No. 2006-12 and Section IV of Ordinance No. 2006-17 both provide as follows: "A medical marijuana dispensary is a prohibited use in all zoning districts of the County. While this interim ordinance is in effect, no applications for land-use entitlements or building permits shall be accepted or processed, and no land-use entitlements or building permits shall be approved or issued, for any medical marijuana dispensary at any location in the County." Under section 84-44.402 of the County Ordinance Code, a professional office such as one pertaining to the practice of medicine is a permitted use in an 0-1 zoning district provided that no merchandise is stored, handled, displayed or sold on the premises. Under section 84-44.404 of the County Ordinance Code, drug and prescription sales accessory to a medical office or clinic are not allowed unless: (1) a land use permit has been issued; and (2) the sales are definitely incidental to the primary use and are not visible from the street. No land use permit has been issued for the marijuana dispensary at the property. No land use permit was granted for drug and prescription sales accessory to a medical office or clinic at the property prior to the adoption of Ordinance no. 2006-12. No zoning approvals were issued for a professional office at the property prior to the adoption of Ordinance No. 2006-12. No certificate of occupancy has been issued for the marijuana dispensary. Ordinance Code section 82-2.006 provides that any use of land, building or structure contrary to the County Zoning Code (Divisions 82 and 84 of the County Ordinance Code) is unlawful and a public nuisance. YOU ARE HEREBY ORDERED TO ABATE SAID PUBLIC NUISANCE. You must abate these zoning violations within 30 days of the issuance date of this Notice and Order to Abate. The issuance date is specified below. To abate these violations, you must cease using the property as a marijuana dispensary within 30 days of the date of this notice. You must not make available, sell, transmit, give, distribute, or otherwise provide marijuana to any person at the premises and must remove all marijuana and marijuana-related products from the premises within 30 days of the date of this notice. ( EXHIBIT 7.) Copy of the posting for abatement issued on August 8/8/2006 and affidavit of posting. NOTICE AND ORDER TO ABATE APN: 125-140-027 August 8, 2006 Page 2 YOU MAY APPEAL FROM THIS ORDER OF ABATEMENT, but an appeal must be filed with the Clerk of the Board of Supervisors before the expiration of the number off days specified above for completion of the abatement. The appeal must be in writing; specify the reasons for the appeal; contain your name, address and telephone number; be accompanied by anappeal fee of ONE HUNDRED TWENTY FIVE dollars ($125.00); and be filed at the following address: CLERK OF THE BOARD OF SUPERVISORS, COUNTY OF CONTRA COSTA 651 PINE STREET, 1ST FLOOR, MARTINEZ, CA 94553 One who is legally indigent may obtain a waiver of the appeal fee. Upon timely receipt of the appeal and accompanying fee, or waiver, the Clerk of the Board will cause the matter to be set for hearing before the Board of Supervisors and notify you of the date and location of the hearing. If the Board of Supervisors hears this matter, the Board may reverse, modify, or affirm this order at the conclusion of the hearing this order becomes a final order if an appeal is not timely filed. If you have any questions regarding this matter, you may direct them to the County officer issuing this notice at the address or telephone number listed below. ISSUANCE DATE: August 8, 2006 --- Z-641� Phi dolph, Building Inspector I Building Inspection Department 651 Pine St., 4th Floor Martinez, CA 94553 (925) 335-1142 PAL:prc Cc: MariCare First Harvest Alternative 127 Aspen Dr., Suite 101 Pacheco, CA 94553 Attention: Managing Director Nettie Pineda 850 Weibel Circle Oakley, CA 94561 Z:code-enf/robin/127 aspen drive—notice and order to abate CONTRA COSTA COUNTY BUILDING INSPECTION DEPARTMENT AFFIDAVIT OF POSTING, SERVICE BY MAIL OR HAND DELIVERY STATE OF CALIFORNIA ) COUNTY OF CONTRA COSTA ) I declare that I am a duly appointed, qualified employee of the Building Inspection Department of the County of Contra Costa, State of California, that pursuant to Uniform Building Code Section 102 , Uniform Housing Code 1997 Edition, Section 1101 . 3 , and Contra Costa County Ordinance Code Chapter 14-6 . 4 Uniform Public Nuisances . X 1 . I deposited attached document (s)Notice And Order To Abate in the United States Post Office in the City of Martinez, CA, certified mail postage prepaid, return receipt requested, to the persons thereinafter set forth and in the form attached hereto . X 2 . I posted the attached document (s)Notice And Order To Abate, on the structure on the property as herein listed. 3 . I have mailed a copy of the attached documents to the following persons C/O the County Clerk. 4 . Hand delivered. MariCare First Harvest Alternative _ 127 Aspen Dr . , #102 Pacheco, CA 94553 MariCare First Harvest Alternative �eeL`� 1t�k�n9VC>Z 127 Aspen Dr. , #101 Pacheco, CA 94553 Nettie Pineda 850 Weibel Circle Oakley, CA 94561 SITE: 127 Aspen Dr. #101, Pacheco, CA APN: 125-140-026 Said notices were mailed/posted on August 8, 2006 . I declare under penalty of perjury that the foregoing is true and correct . Dated: August 8 , 2006 at Martinez, California . P D CLERK - Robin Turner o 77 _y,. .. _ X17 I CONTRA COSTA COUNTY BUILDING INSPECTION DEPARTMENT AFFIDAVIT OF POSTING, SERVICE BY MAIL OR HAND DELIVERY STATE OF CALIFORNIA ) COUNTY OF CONTRA COSTA ) I declare that I am a duly appointed, qualified employee of the Building Inspection Department of the County of Contra Costa, State of California, that pursuant to Uniform Building Code Section 102 , Uniform Housing Code 1997 Edition, Section 1101 . 3 , and Contra Costa County Ordinance Code Chapter 14-6 . 4 Uniform Public Nuisances . X 1 . I deposited attached document (s)Notice And Order To Abate in the United States Post Office in the City of Martinez, CA, certified mail postage prepaid, return receipt requested, to the persons thereinafter set forth and in the form attached hereto . X 2 . I posted the attached document (s)Notice And Order To Abate, on the structure on the property as herein listed. 3 . I have mailed a copy of the attached documents to the following persons C/O the County Clerk. 4 . Hand delivered. MariCare First Harvest Alternative \ 127 Aspen Dr . , #102 \, V,Z>� Sc�iTE1C�0 Pacheco, CA 94553 AS Pk R I iklA1VjACIE< MariCare First Harvest Alternative �% DV1 127 Aspen Dr. , #101 Pacheco, CA 94553 Nettie Pineda 850 Weibel Circle Oakley, CA 94561 SITE: 127 Aspen Dr. #102 , Pacheco, CA APN: 125-140-026 Said notices were mailed/posted on August 8, 2006 . I declare under penalty of perjury that the foregoing is true and correct . Dated: August 8, 2006 at Martinez , California . PC CLERK - Robin Tur e P st d'by: Phil Ludolph OWNER: Nettie ineda Anita Frias and Richard E. Frias all as Joint Tenants NOTICE AND ORDER TO ABATE ORDINANCE CODE 14-6 C.C.C. 1E copy NOTICE IS HEREBY GIVEN that an illegal land use exists on property located at 127 Aspen Drive, Suite 101 , Pacheco, Contra Costa County, California; APN: 125-140-026. The property is located in an 0-1 Limited Office zoning district. An inspection of the property was conducted on April 27, 2006. The inspection and additional evidence establish that a marijuana dispensary exists at the property. The marijuana dispensary on the property is an illegal land use in violation of Contra Costa County Ordinance Nos. 2006-12 and 2006-17, Ordinance Code section 84-44.402 and 84- 44.404, and Ordinance Code section 82-2.006. Ordinance No. 2006-12 was adopted by the Board of Supervisors on April 11 , 2006. Ordinance No. 2006-12 is an interim urgency ordinance that established a moratorium on medical marijuana dispensaries. Ordinance No. 2006-17 was adopted by the Board of Supervisors on May 23, 2006. Ordinance No. 2006-17 is an interim urgency ordinance effective through April 10, 2007. Ordinance No. 2006-17 continues the moratorium on medical marijuana dispensaries established by Ordinance No. 2006-12. Section III of Ordinance No. 2006-12 and Section IV of Ordinance No. 2006-17 both provide as follows: "A medical marijuana dispensary is a prohibited use in all zoning districts of the County. While this interim ordinance is in effect, no applications for land-use entitlements or building permits shall be accepted or processed, and no land-use entitlements or building permits shall be approved or issued, for any medical marijuana dispensary at any location in the County." Under section 84-44.402 of the County Ordinance Code, a professional office such as one pertaining to the practice of medicine is a permitted use in an 0-1 zoning district provided that no merchandise is stored, handled, displayed or sold on the premises. Under section 84-44.404 of the County Ordinance Code, drug and prescription sales accessory to a medical office or clinic are not allowed unless: (1) a land use permit has been issued; and (2) the sales are definitely incidental to the primary use and are not visible from the street. No land use permit has been issued for the marijuana dispensary at the property. No land use permit was granted for drug and prescription sales accessory to a medical office or clinic at the property prior to the adoption of Ordinance no. 2006-12. No zoning approvals were issued for a professional office at the property prior to the adoption of Ordinance No. 2006-12. No certificate of occupancy has been issued for the marijuana dispensary. Ordinance Code section 82-2.006 provides that any use of land, building or structure contrary to the County Zoning Code (Divisions 82 and 84 of the County Ordinance Code) is unlawful and a public nuisance. YOU ARE HEREBY ORDERED TO ABATE SAID PUBLIC NUISANCE. You must abate these zoning violations within 30 days of the issuance date of this Notice and Order to Abate. The issuance date is specified below. To abate these violations, you must cease using the property as a marijuana dispensary within 30 days of the date of this notice. You must not make available, sell, transmit, give, distribute, or otherwise provide marijuana to any person at the premises and must remove all marijuana and marijuana-related products from the premises within 30 days of the date of this notice. ( EXHIBIT 7.) Copy of the posting for abatement issued on August 8/8/2006 and affidavit of posting. NOTICE AND ORDER TO ABATE APN: 125-140-027 August 8, 2006 Page 2 YOU MAY APPEAL FROM THIS ORDER OF ABATEMENT, but an appeal must be filed with the Clerk of the Board of Supervisors before the expiration of the number off days specified above for completion of the abatement. The appeal must be in writing; specify the reasons for the appeal; contain your name, address and telephone number; be accompanied by anappeal fee of ONE HUNDRED TWENTY FIVE dollars ($125.00); and be filed at the following address: CLERK OF THE BOARD OF SUPERVISORS, COUNTY OF CONTRA COSTA 651 PINE STREET, 1ST FLOOR, MARTINEZ, CA 94553 One who is legally indigent may obtain a waiver of the appeal fee. Upon timely receipt of the appeal and accompanying fee, or waiver, the Clerk of the Board will cause the matter to be set for hearing before the Board of Supervisors and notify you of the date and location of the hearing. If the Board of Supervisors hears this matter, the Board may reverse, modify, or affirm this order at the conclusion of the hearing this order becomes a final order if an appeal is not timely filed. If you have any questions regarding this matter, you may direct them to the County officer issuing this notice at the address or telephone number listed below. ISSUANCE DATE: August 8, 2006 Phil ud ph, Building 1'n9pectod--- Building Inspection Department 651 Pine St., 4t" Floor Martinez, CA 94553 (925) 335-1142 PAL:prc Cc: MariCare First Harvest Alternative 127 Aspen Dr., Suite 102 Pacheco, CA 94553 Attention: Managing Director Nettie Pineda 850 Weibel Circle Oakley, CA 94561 Z:code-enf/robin/127 aspen drive—notice and order to abate 84-44.202 provisions contained in Sections 84-42.602 — 84- 84-44.2006 Site plan and elevation- 42.1206 may be granted in accordance with Chapter 82- Imposition of conditions. 6.(Ord. 68-54§ 1 (part), 1968:prior code§ 81690)). 84-44.2008 Site plan and elevation— Rezoning to 0-1 district. Chapter 84-44 Article 8444.22.Land Use and Variance Permits 84-44.2202 Land use and variance permit- 0-1 LIMITED OFFICE DISTRICT Granting. Sections: Article 84-44.2.General Article 84-44.2.General 84-44.202 General provisions. 84-44.202 General provisions. All land within an 0-1 limited office district may be Article 84-44.4.Uses used for any of the following uses,under the following 84-44.402 Use—Permitted. regulations set forth in this chapter. (Ord. 1883: prior 84-44.404 Use—Requiring land use permit. code§ 8157.5 (part)). Article 84-44.4.Uses Article 84-44.6.Lots 84-44.602 Lot—Area. 84-44.402 Use—Permitted. 84-44.604 Lot—Width. The following uses are permitted provided that no 84-44.606 Lot—Depth. merchandise is stored,handled,displayed or sold on the 84-44.608 Lot—Coverage. premises: (1) Professional offices such as those pertaining to, Article 84-44.8.Building Height but not limited to, the practice of law, architecture, 84-44.802 Building height—Maximum. dentistry,medicine,engineering and accounting; (2) Administrative,executive and editorial offices; Article 84-44.10.Yards (3) Business offices for insurance, real estate and 84-44.1002 Yard—Side. investment brokers or representatives. (Ords. 76-75 §4 84-44.1004 Yard—Setback. (part), 1883:prior code§ 8157.5(a)). 84-44.1006 Yard—Rear. 84-44.404 Use—Requiring land use permit. Article 84-44.12.Off-Street Parking In the 0-1 district the following uses are permitted 84-44.1202 Off-street parking—Space upon the issuance of a land use permit: requirements. (1) Hospitals, eleemosynary and philanthropic institutions,convalescent homes,and boarding homes; Article 84-44.14.Building Size (2) Churches, religious institutions, and parochial 84-44.1402 Building size Gross floor area. and private schools,including nursery schools; (3) Community buildings,clubs,and activities of a Article 84-44.16.Open Area quasi-public, social, fraternal or recreational character, 84-44.1602 Open area—General provisions. such as golf, tennis and swimming clubs; veterans' and fraternal organizations not organized for monetary profit; Article 84-44.18.Signs (4) Publicly owned buildings and structures,except 84-44.1802 Sign—Restrictions. as provided in Division 82; (5) Studios and galleries for arts and crafts,music Article 84-44.20.Site Plan and Elevations and dance,and photography; 84-44.2002 Site plan and elevation—Scale (6) Commercial radio and television receiving and drawing. transmitting facilities; broadcasting studios or business 84-44.2004 Site plan and elevation—Review offices; home Cablevision facilities, including repair and approval of application. shops, storage areas, and equipment parking space necessary for operation and maintenance of the system; 469 84-44.602 (7) Drug and prescription sales accessory to a corner lots,the principal frontage of the lot shall have a medical office or clinic providing such use is definitely setback of at least twenty feet and the other setback shall incidental to the primary use and is not visible from the be at least fifteen feet. (Ord. 1883: prior code § street; 8157.5(h)). (8) Animal hospital.(Ords.76-75§4(part),71-95§ 1,71-55 § 1, 1883:prior code§8157.5(b)). 84-44.1006 Yard—Rear. Rear yard provisions for the O-1 district shall be the Article 84-44.6.Lots same as those for the R-6 district (84-4.1006). (Ord. 1883:prior code§ 8157.5(i)). 84-44.602 Lot—Area. No building or structure permitted in the 0-1 district Article 84-44.12.Off-Street Parking shall be erected or placed on a lot having less than fifteen thousand square feet. (Ord. 1883: prior code § 84-44.1202 Off-street parking—Space 8157.5(c)). requirements. One automobile storage space shall be provided on 84-44.604 Lot—Width. the same lot or parcel for each two hundred square feet No building or structure permitted in the 0-1 district of floor area of building, except that for medical and shall be erected or placed on a lot having less than one dental offices, a minimum of five automobile storage hundred feet in average width.(Ord. 1883:prior code§ spaces shall be provided on the same lot or parcel for 8157.5(d)). each full-time doctor. (Ord. 1883: prior code § 8157.50)). 84-44.606 Lot—Depth. No building or structure permitted in the 0-1 district Article 84-44.14.Building Size shall be erected or placed on a lot having less than ninety feet in depth. (Ord. 1883:prior code§ 8157.5(e)). 84-44.1402 Building size--Gross floor area. No building in the O-1 district shall have a gross floor 84-44.608 Lot—Coverage. area exceeding fifteen thousand square feet.(Ord. 1883: No buildings or structures permitted in the O-1 district prior code§ 8157.5(k)). shall cover more than thirty-five percent of the lot area. (Ord. 1883:prior code§ 8157.5(1)). Article 84-44.16.Open Area Article 84-44.8.Building Height 84-44.1602 Open area—General provisions. Twenty-five percent of the parcel shall not be 84-44.802 Building height—Maximum. occupied by buildings,structures,or pavement,but shall No building or structure permitted in the 0-1 district be landscaped. Seventy-five percent of this twenty-five shall exceed two and one-half stories or thirty-five feet in (open area)shall be planted and maintained with growing height. (Ord. 1883:prior code§ 8157.5(f)). plants. (Ord. 1883:prior code§ 8157.5(m)). Article 84-44.10.Yards Article 84-44.18.Signs 84-44.1002 Yard—Side. 84-44.1802 Sign—Restrictions. There shall be an aggregate side yard width of at least One sign per parcel having a maximum size of ten fifteen feet with no single side yard being less than five square feet shall be permitted.No sign shall rotate,flash, feet in width, except that when a side yard abuts a or animate. No sign shall exceed the height of the roof residential land use district,it shall then have a minimum eave line or twenty feet, whichever is lowest. No sign width of fifteen feet with a minimum of five-foot width shall face a residential land use district which may be on the other side. (Ord. 1883:prior code§ 8157.5(g)). abutting the subject parcel.No freestanding signs are to be permitted. (Ords. 74-51, 1883; prior code § 84-44.1004 Yard—Setback. 8157.5(n)). There shall be a setback(front yard)of at least twenty feet for any building or structure in the 0-1 district;on 470 ORDINANCE NO. 2006-12 URGENCY INTERIM ORDINANCE PROHIBITING THE ESTABLISHMENT OF MEDICAL MARIJUANA DISPENSARIES IN THE UNINCORPORATED AREA OF CONTRA COSTA COUNTY The Contra Costa County Board of Supervisors ordains as follows: SECTION I. FINDINGS AND PURPOSE. A. In 1996, the voters of the State of California approved Proposition 215, the Compassionate Use Act of 1996, codified at Health and Safety Code section 11362.5. The purpose of the Compassionate Use Act of 1996 is to enable persons who are in need of marijuana for specified medical purposes to obtain and use marijuana under limited, specified circumstances. In 2003, the State Legislature enacted Senate Bill 420 to establish regulations and procedures regarding the issuance of identification cards to patients qualified to use medical marijuana. B. The federal Controlled Substances Act, codified at Title 21, United States Code section 801 et seq., prohibits the use and distribution of marijuana. In 2005, the United States Supreme Court held in Gonzales v. Raich (2005) 125 S.Ct. 2195, that the federal Controlled Substances Act is not affected by the state Compassionate Use Act of 1996, and therefore it is a violation of federal law to possess or distribute marijuana even if for medical purposes. C. Some jurisdictions have relied on the provisions of the Compassionate Use Act of 1996 to allow the establishment of medical marijuana dispensaries at fixed locations. Many of these jurisdictions have reported negative secondary effects, such as an increase in crime, in the areas immediately surrounding the dispensaries. Reports show that some jurisdictions have received and investigated a number of complaints of criminal activity, including armed robberies and burglaries, at or near medical marijuana dispensaries. Other jurisdictions have reported that medical marijuana dispensaries have resulted in loitering, traffic congestion, parking problems, noise and other harmful secondary effects. D. Contra Costa County has received several inquiries regarding applications for the establishment of medical marijuana dispensaries. E. On February 22, 2006, the Board of Supervisors directed staff to study and make recommendations regarding the regulation of medical marijuana dispensaries. The County Ordinance Code does not contain specific zoning standards or development regulations regarding the location or use of facilities established to distribute marijuana for medicinal purposes. ORDINANCE NO. 2006-12 1 F. The establishment of medical marijuana dispensaries without appropriate rules and regulations could result in harmful secondary effects, such as an increase in crime, loitering, traffic congestion,parking problems,noise and other negative effects. G. It is necessary to suspend the establishment of medical marijuana dispensaries to provide the County with time to consider regulations governing the location and operation of medical marijuana dispensaries, and to determine the extent of these regulations. Absent this interim ordinance,medical marijuana dispensaries could arguably be located in residential areas or in close proximity to schools, churches, day care centers and other sensitive uses incompatible with medical marijuana dispensaries. SECTION II. DEFINITION. For purposes of this ordinance, "medical marijuana dispensary" means any facility or location where marijuana is made available, sold,transmitted, given, distributed to, or otherwise provided to primary caregivers, qualified patients,persons with an identification card,or any other qualified individuals, in accordance with the state Compassionate Use Act of 1996 (Health and Safety Code section 11362.5). SECTION III. PROHIBITION. A medical marijuana dispensary is a prohibited use in all zoning districts of the County. While this interim ordinance is in effect,no applications for land-use entitlements or building permits shall be accepted or processed, and no land-use entitlements or building permits shall be approved or issued, for any medical marijuana dispensary at any location in the County. SECTION IV. REPORTS. In accordance with subdivision (d) of Government Code section 65858, ten days before the expiration of this ordinance or any extension of it, the Community Development Department shall file with the Clerk of this Board a written report describing the measures taken to alleviate the conditions that led to the adoption of this urgency interim ordinance. SECTION V. SEVERABILITY. If any provision or clause of this ordinance or the application thereof to any person or circumstances is held to be unconstitutional or to be otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect other ordinance provisions or clauses or applications thereof that can be implemented without the invalid provision or clause or application, and to this end the provisions and clauses of this ordinance are declared to be severable. SECTION VI. DECLARATION OF URGENCY. This ordinance is hereby declared to be an urgency ordinance for the immediate preservation of the public safety, health, and welfare of the County, and it shall take effect immediately upon its adoption. The facts constituting the urgency of this ordinance's adoption are set forth in Section I. ORDINANCE NO. 2006-12 2 SECTION VII. EFFECTIVE PERIOD. This ordinance becomes effective immediately upon passage by four-fifths vote of the Board and shall continue in effect for a period of 45 days,pursuant to Government Code section 65858. Within 15 days of passage, this ordinance shall be published once with the names of the supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED ON APRIL 11, 2006 by the following vote: AYES: Uilkema, Piepho.DeSaulnier,Glover and Gioia NOES: None ABSENT: None ABSTAIN: None ATTEST: JOHN CULLEN, Clerk of the Board of Supervisors B Chair and County Administrator By: f �';, / \ _ [SEAL] Deputy TLG: i. HA2006\Community DevelopmentWedical Marijuana\urgency ordl.wpd ORDINANCE NO. 2006-12 3 ORDINANCE NO. 2006-17 i URGENCY INTERIM ORDINANCE PROHIBITING THE ESTABLISHMENT OF MEDICAL MARIJUANA DISPENSARIES IN THE UNINCORPORATED AREA OF CONTRA COSTA COUNTY The Contra Costa County Board of Supervisors ordains as follows: SECTION I. FINDINGS AND PURPOSE. A. In 1996, the voters of the State of California approved Proposition 215,the Compassionate Use Act of 1996, codified at Health and Safety Code section 11362.5. , The purpose of the Compassionate Use Act of 1996 is to enable persons who are in need of marijuana for specified medical purposes to obtain and use marijuana under limited, specified circumstances. In 2003,the State Legislature enacted Senate Bill 420 to I establish regulations and procedures regarding the issuance of identification cards to i patients qualified to use medical marijuana. B. The federal Controlled Substances Act, codified at Title 21,United States Code section 801 et seq.,prohibits the use and distribution of marijuana. In 2005,the United States Supreme Court held in Gonzales v. Raich (2005) 125 S.Ct. 2195,that the federal Controlled Substances Act is not affected by the state Compassionate Use Act of 1996, and therefore it is a violation of federal law to possess or distribute marijuana even if for medical purposes. C. Some jurisdictions have relied on the provisions of the Compassionate Use Act of 1996 to allow the establishment of medical marijuana dispensaries at fixed locations. Many of these jurisdictions have reported negative secondary effects, such as an increase in crime, in the areas immediately surrounding the dispensaries. Reports show that some jurisdictions have received and investigated a number of complaints of criminal activity, including armed robberies and burglaries, at or near medical marijuana dispensaries. Other jurisdictions have reported that medical marijuana dispensaries have resulted in loitering,traffic congestion,parking problems,noise and other harmful secondary effects. D. Contra Costa County has received several inquiries regarding applications for the establishment of medical marijuana dispensaries. E. On March 7, 2006, the Board of Supervisors directed staff to study and make recommendations regarding the regulation of medical marijuana dispensaries. The County Ordinance Code does not contain specific zoning standards or development regulations regarding the location or use of facilities established to distribute marijuana for medicinal purposes. ORDINANCE NO. 2006-17 1 i I F. The establishment of medical marijuana dispensaries without appropriate rules and regulations could result in harmful secondary effects, such as an increase in crime, loitering,traffic congestion,parking problems,noise and other negative effects. G. It is necessary to suspend the establishment of medical marijuana dispensaries to provide the County with time to consider regulations governing the location and operation of medical marijuana dispensaries,and to determine the extent of these regulations. Absent this interim ordinance, medical marijuana dispensaries could arguably be located in residential areas or in close proximity to schools, churches, day care centers and other sensitive uses incompatible with medical marijuana dispensaries. SECTION II. DEFINITION.For purposes of this ordinance, "medical marijuana dispensary" E means any facility or location where marijuana is made available, sold, transmitted, given, distributed to, or otherwise provided to primary caregivers, qualified patients,persons with an identification card,or any other qualified individuals, in accordance with the state Compassionate Use Act of 1996 (Health and Safety Code section 11362.5). SECTION III. EXTENSION. Ordinance No. 2006-12 is extended for 10 months and 15 days. SECTION IV. PROHIBITION. A medical marijuana dispensary is a prohibited use in all zoning districts of the County. While this interim ordinance is in effect,no applications for land- use entitlements or building permits shall be accepted or processed, and no land-use entitlements or building pen-nits shall be approved or issued, for any medical marijuana dispensary at any 1 location in the County. SECTION V. REPORTS. In accordance with subdivision(d) of Government Code section 65858, ten days before the expiration of this ordinance or any extension of it, the Community Development Department shall file with the Clerk of this Board a written report describing the measures taken to alleviate the conditions that led to the adoption of this urgency interim ordinance. SECTION VI. SEVERABILITY. If any provision or clause of this ordinance or the application thereof to any person or circumstances is held to be unconstitutional or to be otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect other ordinance provisions or clauses or applications thereof that can be implemented without the invalid provision or clause or application, and to this end the provisions and clauses of this ordinance are declared to be severable. SECTION VII. DECLARATION OF URGENCY. This ordinance is hereby declared to be an urgency ordinance for the immediate preservation of the public safety,health, and welfare of ORDINANCE NO. 2006-17 2 County, and it shall take effect immediately upon its adoption. The facts constituting the urgency of this ordinance's adoption are set forth in Section I. SECTION VIII. EFFECTIVE PERIOD. This ordinance becomes effective immediately upon passage by four-fifths vote of the Board and shall continue in effect for a period of 10 months and 15 days, pursuant to Government Code section 65858. Within 15 days of passage, this ordinance shall be published once with the names of the supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. PASSED ON �I& v<1 �C by the following vote: AYES: Gioia,Piepho,DeSaulnier,Glover and Uilkema NOES: None ABSENT: None ABSTAIN: None ATTEST: JOHN CULLEN, Clerk of the Board of Supervisors oard Chair and County Administrator 0 By: O `�-�� _ [SEAL] Deputy TLG: HA2006\Community Development\ivledical Marijuana\urgency ord-extend2.wpd ORDINANCE NO. 2006-17 3 June 8, 2006 Contra Costa County Supervisor's Office Dear Mr. DeSaulnier, On behalf of Community Watch for Pacheco at Aspen Drive, I am writing this letter to invite you to the PMAC meeting on July 12, 2006. We are asking that you address to the community why it is that T.H.C. (Tender Holistic Care) and Maricare marijuana dispensaries are continuing to operate in Pacheco located in District IV. Mr. Hernandez from Community Development and the Contra Costa County Supervisor's Office has told us that both clubs are operating despite being in violation of code and in THC's case, in V violation of the recent moratorium banning new dispensaries. T.H.C. closed on May 10, 2006 due to an eviction. After a Moratorium was voted on and passed by the Contra Costa Board of Supervisors, T.H.C. reopened at 421 N. Buchanan, #6 in Pacheco, CA. Maricare is located at 127 Aspen Drive in Pacheco, CA. This is a residential area, which is not zoned to sell pharmaceuticals. The Supervisor's office has filed numerous complaints from the community against T.H.C. and Maricare for excessive loitering, smoking of marijuana in public, the smell of marijuana in the area and traffic issues. These reasons are why Maricare was asked to leave Concord, CA. and T.H.C. was evicted from their location on Pacheco Boulevard. Both locations are enticing "a criminal element"to the quality of life in our community and residents are growing increasingly fearful of their safety and losing confidence in the local government. We believe that this is impacting zoning for the Aspen Drive beautification project in which Pacheco residents have been assessed a tax. This tax is to put a park across the street from Maricare's location on Aspen Drive. If this club is not closed, zoning will not allow this park to be built. We also believe that Contra Costa County knowingly has allowed these situations to continue for far too long. Contra Costa County could be and should be held liable for any lost business or any marijuana related criminal incidents to the community surrounding these clubs. The Sheriffs Office has been instrumental in service calls to our residents. Crime Prevention Specialist Marie Hembree and Captain Mike Newman have done a great job and have done their best to enforce the laws, however, we understand that it is up to Code enforcement officials to shut down these harmful enterprises. We believe these marijuana dispensaries are completely hurting the businesses and residential safety and quality of life close to them and wish them shut down as per code regulations and moratorium decisions. Please come to the next PMAC meeting and explain why nothing is being done to enforce code violations and moratorium decisions in our town Tei, �ou9ia�` . PMAC Pacheco Town Council Vice President Community Watch Captain/Spokesman 925.825.2504 dkhstew a.comcast net Cc Ruben Hernandez—Community Development Officer Phil Ludolph—Code Enforcement Officer. Sheriff Warren Rupf—Contra Costa County Sheriff's Department Capt. Mike Newman—Contra Costa County Sheriff's Department Marie Hembree—Contra Costa County Sheriff's Department—Crime Prevention Dennis Barry—Chief of Community Development Federal D. Glover—District V—Board of Supervisors Gail Uilkema—Distric II—Board of Supervisors Mary Piepho—District III—Board of Supervisors John Giola—District I—Board of Supervisors Mark DeSaulnier—District IV—Board of Supervisors Susan Bonilla—Mayor Concord CA Rob Schroder—Mayor Martinez, CA Pacheco Municipal Advisory Council Pacheco Town Council Contra Costa Times August 3, 2006 Contra Costa County Law Enforcement Re: Maricare Marijuana Dispensary 127 Aspen Drive Pacheco CA 94553 We are writing this letter to give a more detailed account of issues regarding Maricare Marijuana Dispensary. The first issue is the heavy odor of marijuana in our neighborhood. All the residents neighboring Maricare smell this odor on a daily basis. Our concern is when school starts up again, there will be more kids in this area due to the bus stop less than 100 feet from Maricare's front door. Neighbors have been complaining of excessive noise coming from Maricare. Their business hours are from 10:00 a.m. -7:00 p.m., however people remain in their parking lot after they have closed. This noise coming from their parking lot is a big problem especially for the neighbors living directly behind them. We have noticed on several occasions one person entering Maricare while other people are waiting in the car. We've even seen children left in cars while their parents enter Maricare. This is a huge concern to us as parents ourselves. This should not be allowed. We have also seen people walking to and from Maricare, as they walk down Aspen Drive they are littering their empty Maricare bags on to the ground. We frequently pick up these empty bags along Aspen Drive and Brown. Enclosed with this letter is one of the bags we have found laying on the ground. We did have another bag that was found booked into evidence by the Contra Costa County Sheriffs Department. These bags all have labels on them which say Maricare Marijuana, not for resale. Another major problem are the clients of Maricare smoking marijuana in public. Community Watch is out on a daily basis and have witnessed this. We've confronted these people smoking along Aspen Drive, we have also notified the sheriffs department on many occasions. We as citizens should not have to police our own neighborhood to keep clients of Maricare from smoking marijuana on our streets and sometimes even selling the marijuana they have just purchased to other people who are not clients of Maricare. Several of us have witnessed people leaving Maricare Marijuana Dispensary located at 127 Aspen Drive and going to the church parking lot located at 105 Aspen Drive to sell their marijuana to other people. These people are dealing drugs during the day right out in the open for any one to watch. The sheriff's department was notified of this activity going on. The bottom line here is no one is regulating this type of business, so basically these people have been and are currently doing whatever they want. This can not happen in a residential area. Families live within 50 feet of this dispensary. Please close down Maricare Marijuana Dispensary as per code. Also attached with this letter are additional letters from residents of our area. Than]L.yoa, t I Douglas PMAC Pacheco Town Council Vice President Community Watch Captain/Spokesperson Cc: Phil Ludolph, Contra Costa County Code Enforcement Lt. Cherkow, Contra Costa County Sheriffs Department Marie Hembree,Contra Costa County Sheriffs Department 5 1 Act\(-'S �41,, /, c �vi � F)P.,- L/i S C ��P Pr,3Vacf�, s �L� s � � J Ap� V,2 CU►^ o< C So., S v�-� l 1F cA v�� S o e �p 1.1ylCt th-ti he« 15 b� '► Ci v IC C-ASO 0 c Cd I"?C', Yum kit C� . August 3, 2006 I do not have a problem with the legitimate buyers of medicinal marijuana. They buy it and use it in the privacy of their own home. The people that I do have a problem with are the ones that apparently can't wait until they get home. They park across the street from my apartment, start smoking and the odor invariably finds its way inside my home. I deeply resent that intrusion. I'm sure I'm not the only one that smells it, I'm just the one that's vocal about it. Judy Gooch 111 Aspen Dr. # 13 Pacheco, Ca.. 94553 �--_-�. � ., ..E-� � �� cf locaAz�cyl 6�� 1,5 cerl cv S,-, ,� ,-tea✓v�� -5 PTIC-' BOARD OF DIRECTORS MEETING June 28, 200( ATTENDANCE: Keith March, Doug Stewart, Kay Perm-;'haver, Sally Norgaard, Charles Morphy,Gary Glentzer G(JESTS: Jack MarAziall ITEM 1: Keith March was unhappy there was no agenda f I or the meeting. He made two proposals: Y) at beginning of meeting- everyone N&Tite down items to be discussed 2) have agenda prepared ahead of time so everyone will know what's to be discussed prier to the meeting • Doug prefers 42 so time is not wasted in meeting time discussing what.to talk about. At the meeting, members can add items under public comment. • Kay wanted to know when the agenda needed to be posted- • Per Doug, the Brown act requires posting 72 hours prior to the meeting. • When Joyce has minutes transcribed, she will get them to Sally forfollow-up items to be placed on the agenda. • Sally will prepare the agenda and get it to Joyce so she can post it and send it out with the Office Report. ITEM 2: Keith introduced Jack,Pvlarshall. Mr. Marshall teaches self-defense classes for children. He has been doinsz this for over 20 Nears. Mr. Marshall has been involved with martial arts since he was 6 vears old. The content of the classes change as criminals become more sophisticated. He has individuals who are very versed in internet crime and volunteer their time to teach parents what to look for on the internet. He would like to provide these classes at no charge, but would like our help to get the use of the High Schools computer lab- Literature is provided to each student for tree... The company is non-profit. And Mr. Marshall pro,,4ded information regarding his insurance and 501c:3 non-profit status- The company maintains a web site that the board can visit for more information. He also provided the Board Members with his business cards. Classes usually meet. I time a week for 40 minutes. He would like to start with 2 classes- Currently there is a group of 20 children from Martinez who would transfer here immediately. When the classes are in full swing with 34 evening classes.they contain I 00's of students. Mr. Marshall stated that they have locations all over the state of California. There are 3 1 active winter locations beginning in September and 17 active, locations In the summer- The classes provide physical education,eye-hand coordination,self-defense skills necessary to prevent or evade an attack, Kay asked if the Board had discussed this previously. Doug said it had been discussed several months ago but not In detail as lie wanted Mr. Marshall to do his presentation. Sally asked who ,,,vould do the advertising- %. ,Ir- Marshall does all the ads. Each session lasts 3, months all near. He ix-ould teach these classes himself. Kay asked when the classes would be and if he preferred a specific day of the week. Mr. Marshall said they are held In the evenings. He is flexible but-would prefer Wed_ nights. The classes are broken down by age. Kay asked If rent fees had been discussed- Dougsaid no. There was much discussion about fees/days. Nothing could be specific until Joyce came back. Currently,Mr. Marshall pays Pittsbur(-Y/airfield 40%of collected fees per week-, but pays regular rates at the schools. Kay asked if he would be willing to present a demo some evening or does he get enough response from his ads. He.might consider this if he could get volunteers. Keith asked what equipment was used. Mr. 'Marshall suggested the Board view the equipment on the WE-B site. They have raffles for prizes at each tournament. All his instructors (himself included)have had thorough background checks. He understands that, as part of his rental. his people will be responsible for set-up and take-down of tables/chairs and clean-tip of the facility- The Board will discuss this and get back to him as soon as possible. The Board thanked Nlr- Marshall for his interest and presentation. ITEM 3: Bette NV11gus dropped in to request another check be given to her as reimbursement for previous Beautification flyer mailings. Joyce had given VJ a check for Bette but he has forgotten he had it. Bette, said she would be happy to do some flyers; for the 7112 PMAC meeting but Doug said Community Watch had alreadv sent a letter inviting Supv. DcSaulmcr to come and speak about the marijuana issue. Media has also been invited to the PM,1kC meeting, ITEM 4 Doug asked for clarification about the money Bette was requesting. There was much discussion about the validity of this mailing as it was done by Bette for Beautification (which is under PMAQ. without a vote by the PTC. The purpose of the flyers -was to advertise that a meeting was to be held that would be T attended b,, Contra Costa County officials to speak on the subject of the beautification project. A point was also raised that this type of advertising could also be placed on the web site or sent via e-mail which could potentially save the board rnalline, expenses. The Board unanimously agreed that all expenditures for flyers paid for by the Town Council must be approved by a.ToNvii Council Board vote, Gary asked if should the grant be received,the Town Council would have access toany ofthe funds. Keith said that there is noway brant money would be allowed to be put into a Beautification account.unless it's rnmia.9 ed by the Pacheco Town Council to prevent intermingling I I _,of funds. Gary pointed outthai there are numerous items here at the Comrnumtv Center which are in need of repair and that would be a perfect place to use some of these funds. For clarification, Keith wanted to know where the money was coming from for the median project. Doug stated that it was from the assessment on property. Keith thought the assessment,paid for only the maintenance—not the installation. ITEM 5 Charlie Morphy raised a question con.ceming the need for the creek to be dredged. Keith and Doug stated that the county had all ready begun the process to accomplish this task. ITEM 6 Batik of America Beautification Account: Should it be closed,or left open? After much discussion it was decided that all active accounts were through Wells Fargo, so the question was of no concern. ITEM 7 Account signers include Bette Wilgus. Salle and Ka,%, will remove Bette as a signer from the Wells Fargo Accounts. ITEM 8 There was some discussion that all of the PTC money should not be held in a checking account- Keith wants the majority of the money to be held In the Money Market account and that the checking account should hold only enough money to pay monthly hills_ ITEM9 A motion was made by Kaand seconded b-,., Sailv that a letter would be sent to I - - the Beautification Committee and the PMAC requiring either group to get approval from the PTC Board before any funds are spent. ITEM 10 The PTC agreed that Bette Wilgus should be reimbursed for her expenses resulting from the Beautification mailing I TENI Doug brought up the subject of the Citizen Patrol. One of the tasks that the Community Watch is going to iniplernent is the Citizen Patrol, The Citizen Patrol is used to supplement the Sheriffs Deputies for minor incident reports in Pacheco. The funds to support this organization will come from private donations. Doug will be the Captain and the spokesperson for Pacheco area. The members of the Citizen Patrol would be populated from the Sheriffs Departments volunteer rangers. Doug is asking for the official support from the PTC Board for the Citizen Patrol. A motion was made by Keith and seconded by Sally that the PTC would support the Citizen Patrol as long as it was controlled by the Sheriffs Department. ITEM 1.2 Keith asked what is the PTC position was concerning the homeless anC marijuana Everyone agreed that the current location of Mericar was unacceptable. .Doug is in the process of closing Mericar perritanentl stated that Contra Costa Countyy. No discussion occurred coaicerning the homeless. ITEM 13 A question was raised if a crosstivalk could be installed in front of the building. A ``Cross Walk"would not be. installed because that would make the intersection in front of the community Center a controlled intersection and the County would not do that:. As to the possibility of removing the "No Parking"signs, the answer from the Contra Costa County-vas the"No Parking"signs could not be removed because there would not be enough room for a bike lane. The County's recommendation was that Contra Costa County should allow us to use the lot adjacent to the existing parking lot and the Traffic Safety Department would need a.letter to that effect. Doug to continue the conversation with the county on July 12` I'T'EM 14: Keith brought up a question concerning the facility rental agreement and the center's maximum occupancy statement. Keith would like to simplify- the contract by simply- stating Haat the maximum occupancy is a single number rather than a.range. There was no decision on Hits item ITEM 1.5: Charlie asked for permission to resume work on the landscaping. Kay asked that an item to be put on next month's agenda to decide what the Board's position is regarding payment to the Board members for services rendered. ITEM 16 Doug gave status on the August 231` Business Mixer. Costco will pray-de some food and water. Keith is trying to arrange for a.band_ Joyce is working with #Doter,,preparing the fiver. The meeting was adjourned at 8:00.PMW �--777- '�eith w111 call Bette and ad-Vise her that anything to do with the landscaping of -he park must be brought,to the attention of the Board. There was a question- to be folio-vved up With Joyce, as to whether Bette-kad provided receipts for the expenditures that she was requesting reimbursement for. Current policy is that receipts must always be presented for reimbursements. A letter will be sent to PMAC stating that,if the P-NijkC wants to do anything which will require finids-, they must get approval from the Board or raise the money themselves. This Is to avoid misunderstandings in the future. It was brought to the allciition of the Board that die Beautification Committee is applying for a 1.5 million dollar grant for the medians and park. Keith gave Bette his approval of the grant request. Z-1 Doug stated that the sheriffs department is not backing the park project. The Beautification Committee got letters of support from Metropolitan Transportation Commission, PMAC, Contra.Costa County, Pacheco Town Council,and a number of agencies in the public-works department endorsing the grant. The grant's use is not,specifically spelled out. Keith will attend a Beautification meeting ing.to see if that committee could come the Board meeting to see exactly what they're proposing. Charlie advised that. in 2003 he believes, Mike Moreland(?)and some DVC landscaping students carne to the Board with draAvjti&,,s of what the landscaping would look like. Keith asked if there was a monetary amount discussed. Charlie thought it was in the hundreds of thousands of dollars- Keith stated that,many years ago when he had done Measure C, all of the medians and Center Ave-,Chilpancingo and by the mobile home parks could have been done for less than S500,000.00. Since Keith has not seen any of the current plans.he believes the Beautification Committee may be going I g overboard- Kay pointed out that prices on everything have gone up. Doug spoke to Carrie Rodda froin Public Forks who stated that Bette told her Beautification could do 2 medians. Carrie sats that with 1.5 million. Beautification can only do one and they hope diat within a few Yeats the), can do another one. Doug stated that the sheriff's department is not backing the park project. Came and Doug(Community Watch)have spoken to the sheriffs department, Who is In no-way behind the park. The sheriff's department will not patrol the trail, it must be done b`°.East Bay Regional Park Service out of the Oakland office. Doug believes Marie Hembree has already spoken to 15. revve hive garding the improper grant application requests as there is no mention of the marijuana shop located across the street from the proposed park. The Following Pages Are Public Comment Information • UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 98-16612 D.C. No. CV 98-2651 SI BAY AREA ADDICTION RESEARCH AND TREATMENT, INC.; CALIFORNIA DETOXIFICATION PROGRAMS, INC.; RON I�LETTER, Ph.D.; VICKI ROE; SUSAN COE; RHONDA LOE; RAY DOE; OSCAR VOE; CINDY MOE; ROBIN POE; MARY FOE, plaint#f'�- 1pp4e lants, v. CITY OF ANTIOCH, Defendant Appellee_ Appeal a UnOi District Court ernCalifornia 0 n"I�.Illston, Distract Judge, Presiding Argued and Submitted January 12, 1999--San Francisco, California Filed June 3, 1999 Before: Joseph T. Sneed, A. Wallace Tashima, and Barry G. Silverman, Circuit Judges. Opinion by Judge Tashima COUNSEL Amitai Schwartz, Law Offices of Amitai Schwartz, San Francisco, California, for the plaintiffs- appellants. Gary M. Lepper, Lepper, Schaefer, & Harrington, Walnut Creek, California, for the defendant-appellee. OPINION http://Iw.bna.com/lw/19990622/9816612.htm 9/4/05 city to prohibit a land use for 45 days in order to study the proposed use. See Cal. Gov't Code § 65858 (West 1999). The ordinance forbids the issuance of any permits to or the operation of any new substance abuse clinics, including methadone clinics, located within 500 feet of any residential property. On June 9, 1998, the city council approved Ordinance No. 941-C-S, another urgency ordinance, that extended the effective date of the original ordinance to April 10, 1999.6 The second ordinance amended l the first ordinance so as to prohibit only methadone clinics from operating within 500 feet of any residential property. The "Legislative Findings and Conclusions" accompanying the second ordinance included both statistics and generalities from which the city council concluded that "[t]he proposed methadone clinic at its proposed location represents a current and immediate threat to the public peace, health, safety and welfare." Specifically, the city council found that the methadone clinic would attract drug dealers and lead to an increase in crime in the area surrounding the clinic.? The ordinance provided for further studies of the impact of methadone clinics on nearby residences and children. Antioch and BAART subsequently tried to find an alternative site for the clinic, but no agreement was reached. On July 6, 1998, Bay Area brought a class action lawsuit against Antioch under the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983, for violations of the Supremacy, Due Process, and Equal Protection Clauses. Bay Area sought a declaratory judgment that Ordinance No. 941-C-.S was unlawful and a permanent injunction enjoining Antioch from enforcing the ordinance or otherwise interfering with Bay Area's use of the Sunset Lane site as a methadone clinic. Soon thereafter, Bay Area moved for a preliminary injunction and Antioch filed a motion to dismiss. The district court denied Bay Area and Antioch's motions, holding that zoning is an activity covered by the ADA and the Rehabilitation Act, and that appellants are qualified individuals with disabilities, entitled to protection under both statutes. See 42 U.S.C. § 12131 (1999). The district court decided, 0 however, that at this stage in the litigation, Bay Area had neither demonstrated that it would be irreparably harmed if the court refused to issue a preliminary injunction nor that it was likely to prevail on the merits. Bay Area argues that the district court erred in refusing to issue a preliminary injunction because the district court considered whether there was an alternative location that would constitute a reasonable accommodation of both sides' interests. Under a test that looks solely to whether a law discriminates on the basis of disability, Bay Area contends, it can show that it is likely to prevail on the merits. Bay Area also contends that it will be irreparably harmed if a preliminary injunction does not issue. H. We review the district court's denial of a preliminary injunction for an abuse of discretion. See Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir.), affd sub nom. Saenz v. Roe, No. 98-97, 1999 WL 303743 (U.S. May 17, 1999). A district court abuses its discretion if it " 'based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.' " Id. (quoting Cooter& Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)); cf. Koon v. United States, 518 U.S. 81, 100 (1996) (adopting a single-tier formulation of the abuse of discretion standard of review). "A district court by definition abuses its discretion when it makes an error of law." Id. The interpretation of a statute is a question of law reviewed de novo. See Alexander v. Glickman, 139 Hd 733, 735 (9th Cir. 1998). http_//lw_bna.cornAw/19990622/9816612_htm 9/4/05 T__ disability. L The ADA's legislative history buttresses our interpretation of§ 12132. For example, the report of the House Committee on Education and Labor suggests that at least this committee intended § 12132 to have a broad application. The Committee has chosen not to list all the types of actions that are included within the term "discrimination", as was done in titles I and III, because this title essentially simply extends the anti discrimination prohibition embodied in section 504 [of the Rehabilitation Act, 29 U.S.C. § 794 ] to all actions of state and local governments. H.R. Rep. No. 101485(Il), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367. Perhaps even more significant is the fact that the House bill's general prohibition against discrimination won out over the Senate bill's enumeration of general and specific prohibitions against discrimination. See H.R. Conf. Rep. No. 101-596, at 67 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 576. In other words, Congress specifically rejected an approach that could have left room for exceptions to § 12132's prohibition on discrimination by public entities. Finally, the Department of Justice's regulations and interpretations of those regulations in its Technical Assistance Manual support our conclusion that zoning is covered by the ADA.11 For example, the preamble to the regulations implementing § 12132 notes that "title H applies to anything a public entity does." 28 C.F.R. pt, 35, app. A at 438 (1998). Furthermore, the Technical Assistance Manual expressly cites zoning as an example of a public entity's obligation to avoid discrimination: Illustration 1: A municipal zoning ordinance requires a set-back of 12 feet from the curb in the central business district.,In order to install a ramp to the front entrance of a pharmacy, the owner must encroach on the set-back by three feet. Granting a variance in the zoning requirement may be a reason able modification of town policy. The Americans with Disabilities Act: Title II Technical Assistance Manual ("TA Manual") § I1-3.6100, illus. 1 (1993). In surf,,"[w]e decline to draw an arbitrary distinction --to prohibit public entities from discriminating against persons with disabilities in some of their activities and not in others . . . ." Innovative Health, 117 F.3d at 45. Although we recognize that zoning is a traditionally local activity, Congress has spoken.12 Accordingly, we hold that the ADA applies to zoning. B. The Propriety of Injunctive Relief We hold that the district court abused its discretion by applying an erroneous legal standard to determine whether to grant Bay Area's motion for a preliminary injunction. To obtain a preliminary injunction, Bay Area must demonstrate either "a combination of probable success on the merits and the possibility of irreparable injury" or "that serious questions are raised and the balance of hardships tips in its favor." Roe, 134 F.3d at 1402 (internal quotation marks omitted) (citation omitted)A3 We review the district court's decision for an abuse of discretion. See id. The district court denied Bay Area's motion for a preliminary injunction because it concluded that Bay Area had neither demonstrated that it was likely to prevail on the merits nor that it would be irreparably harmed if an injunction did not issue. With respect to Bay Area's likelihood of success, the district court found that to prevail on its ADA and Rehabilitation Act claims, Bay Area had to show that it has been " http://lw.bna.comAw/19990622/9816612,htm 9/4/05 requires reasonable modifications where necessary to avoid discrimination unless such modifications would fundamentally alter the statute in question. The only possible modification of a facially discriminatory law that would avoid discrimination on the basis of disability would be the actual +- removal of the portion of the law that discriminates on the basis of disability. However, such a , modification would fundamentally alter the ordinance. As applied to this case, for example, the urgency ` ordinance could only be rendered facially neutral by expanding the class of entities that may not operate within 500 feet of a residential neighborhood to include all clinics at which medical services are provided, or by striking the reference to methadone clinics entirely. Either modification would fundamentally alter the zoning ordinance, the former by expanding the covered establishments dramatically, and the latter by rendering the ordinance a nullity. In other words, if§ 35.130(b)(7)applies to instances of facial discrimination, cities could easily evade the strictures of the ADA by making statutes expressly discriminatory. Surely this is not what Congress intended when it enacted § 12132 as an absolute prohibition against discrimination_ The case law employing a reasonable modifications test does not provide otherwise. For example, the Crowder court expressly found that-I a waii's policy constituted a case of disparate impact discrimination rather than facial discrimination. See id. at 1484. Because the Crowder court did not discuss whether it would have applied a different test if the policy had been facially discriminatory, Crowder cannot stand for the proposition that a reasonable modifications test is required in this case.16 Likewise, § 12131(2), which mentions "reasonable modifications" in its definition of a"qualified individual with a disability," does not require a reasonable modifications test. Although Congress' use of the term "reasonable modifications" suggests that such a. test might be proper, it does not follow that this test is required for all suits arising under Title II. Finally, we reject the district court's suggestion that a reasonable modifications test is required because the inherently discriminatory nature of zoning is irreconcilable with the ADA. The breadth of the ABA's purposes and text reveals that localities remain free to distinguish between land uses to effectuate the public interest — they just must refrain from making distinctions based on what Con-ess has detennined to be inappropriate considerations. Therefore, we conclude that § 35130(b)(7)'s reasonable modifications test does not apply to facially discriminatory laws. Instead, facially discriminatory laws present per se violations of§ 12132. 2. The Significant Disk Test Contrary to Bay Area's contention, the fact that the urgency ordinance violates § 12132 does not end our inquiry. Section 12131, which defines the class of individuals entitled to § 12132's protection, includes a test that evaluates the risk posed by an individual. Specifically, an individual who poses a significant risk to the health or safety of others that cannot be ameliorated by means of a reasonable modification is not a qualified individual under § 12131. The Supreme Court developed the significant risk test in School Board of Nassau County v. Arline, 480 U-S. 273 (1987), a case involving a teacher who had been discharged because she had an active case of tuberculosis. See id. at 276. She brought suit under § 504 of the Rehabilitation Act on the basis that she was dismissed on account of her disability. The Court held that "[a] person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk. " Id. at 287 n.16. That is, the Court read the significant risk test into the Rehabilitation Act's definition of who constituted a disabled person for purposes of receiving § 504's protection. The Court noted that this test in most cases would require an individualized assessment of the facts if"§ 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns .. . as avoiding exposing others to significant health and http://Iw.bna.comAw/I 9990622/9816612.htm 9/4/05 prematurely reaches the reasonable modifications part of the analysis because the district court had not found that Bay Area was likely to pose a significant threat to the health or safety of the residents protected by the zoning ordinance. . The next question is how to define a significant risk to health or safety. We find that the determination of whether a significant risk exists requires an individualized assessment of"[t]he nature, duration, and severity of the risk," and "[t]he probability that the potential injury will actually occur." TA Manual § II- 2.8000. We do not purport to explore fully the contours of this test for all contexts. For purposes of this case, it is enough to note that "health and safety" includes severe and likely harms to the community that are directly associated with the operation of the methadone clinic. If supported by the evidence, such harms may include a reasonable likelihood of a significant increase in crime. Without speculating on the kind and quality of evidence needed to establish a significant risk, we note that in assessing the evidence, courts must be mindful of the ADA's express goal of eliminating discrimination against people with disabilities. See 42 U.S.C. § 12141(b)(1). As the Arline Court recognized, the Rehabilitation Act was meant to protect disabled individuals "from deprivations based on prejudice, stereotypes, or unfounded fear." 480 U.S. at 287, cf. Innovative Health, 117 F.3d at49 ("Although [a city ] may consider legitimate safety concerns in its zoning decisions, it may not base its decisions on the perceived harm from . . . stereotypes and generalized fears."). Therefore, it is not enough that individuals pose a hypothetical or presumed risk. Instead, the evidence must establish that an individual does,in fact, pose a significant risk. Further, it should be emphasized that the risk must be of a serious nature. In sum, because the Antioch ordinance facially discriminates on the basis of the appellants' disability in violation of§ 12132, to establish a likelihood of success (or raise serious questions) on the merits, Bay Area need only show that the appellants are qualified under§ 12131 to receive protection under § 12132. To do so, Bay Area must demonstrate that it is likely that appellants do not pose a significant risk to the health or safety of the community. If Bay Area cannot make such a showing, it must demonstrate that the risk it poses may be ameliorated by reasonable modifications. 3. The Possibility of Irreparable Injury The district court concluded that Bay Area had not demonstrated that it would be irreparably harmed in the absence of an injunction because there appeared to be other sites available. On appeal, Bay Area offers numerous arguments as to why the district court erred in finding that the harm did not rise to the level of irreparability_ For example, Bay Area argues that the methadone patients face discontinuation of their treatment with the attendant threats of relapse, stigma, and emotional distress, and that there are no comparable, adequate sites available_ We decline to reach these arguments because the district court may decide this issue differently upon remand, particularly in light of the fact that the availability of alternative locations or other facts may have changed since the district court first addressed Bay Area's motion for injunctive relief. PV. In sum, we hold that Title H of the ADA and § 504 of the Rehabilitation Act apply to zoning ordinances, and that the district court abused its discretion by applying the wrong legal test to Bay Area's ADA and Rehabilitation Act claims. Accordingly, we reverse the district court's order denying Bay Area's motion for a preliminary injunction and remand with instructions that the district court reconsider Bay_ Area's motion in light of the test set forth herein. http://lw.bna.com/ A,/19990622/9816612.htm 9/4/05 threat of increased criminal activity in the area because many of the patients would continue to abuse illicit drugs. 8 The Second Circuit is the only circuit to have expressly addressed the applicability of the ADA to - . zoning. In Pack v. Clayton County, 47 F.3d 430 (11th Cir. 1995) (table), the Eleventh Circuit summarily affirmed such a holding by the district court. Our interpretation of Title 11 of the ADA applies equally to § 504 of the Rehabilitation Act. See Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998) (noting that the language of the two statutes is "similarly expansive" and that "Congress has directed that the ADA and [Rehabilitation Act] be construed consistently."). 9 The City of Antioch is a qualifying public entity. See 42 U.S.C. § 12131(1)(A)(1999). 10 Section 504 of the Rehabilitation Act contains a similar prohibition. 29 U.S.C. § 794(a) provides, "[n] o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . 29 U.S.C. § 794(a) (1999). 11 Title II expressly delegates authority to the Attorney General to promulgate regulations imp enting § 12132's prohibition against discrimination. See 42 U.S.C. § 12134(a) (1999). We must give "[s]uch legislative regulations . controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute [delegating authority to the agency to promulgate regulations]." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). The Justice Department's interpretation of its own regulations, such as the Technical Assistance Manual, must also be given substantial deference and will be disregarded only if"plainly erroneous or inconsistent with the regulation." Thomas Jefferson Univ, v. Shalala, 512 U.S. 504, 512 (1994)(internal quotation marks omitted) (citation omitted). 12 TheSupremeCourt has unanimously held that § 12132 covers another traditionally nonfederal area-- inmates in state prisons. See Pennsylvania Dep't of Corrections v. Yeskey, 118 S. Ct. 1952, 1956 (1998). Anticipating such a holding, this court in Armstrong noted that the fact "[t]hat prison administration may be a core state function does not give us license to disregard clear congressional intent." 124 F.3d at 1025. 13 Antioch argues that a heightened standard of proof should apply under which Bay Area would be required to show a substantial likelihood of success because a preliminary injunction would effectively amount to a permanent injunction. We reject this contention for two reasons. First, the relief Bay Area seeks is a prohibitory injunction that merely preserves the status quo. See Regents of the Univ. of Cal. v. American-Broadcasting Cos., Inc., 747 F.2d 511, 514 (9th Cir. 1984) ("[T]he function of a preliminary injunction is to preserve the status quo ante litem," which is defined as " 'the last, uncontested status which preceded the pending controversy.' " (quoting Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963))). Second, Antioch may undo the effects of the preliminary injunction if it prevails on the merits by requiring Bay Area to cease using the Sunset Lane site as a methadone clinic. See Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222, 240 (S.D.N.Y. 1996), affd, 117 F.3d 37 (2d Cir. 1997). 14 Our discussion of the appropriate test for Bay Area's ADA claim applies equally to Bay Area's Rehabilitation Act claim, for the sake of simplicity, we will refer primarily to the ADA. i http-./Aw.bna.comAw/l 9990622/9816612.htm 9/4/05 r 925c451470 91-15-2007 14:27 j1--1HES '3252451470 3 PAGE1 � Fax All members of the Contra Costa To County Board of Supervisors From Smith Fax: 1-925-335-1913 Pages: 3 Phone: Date: 1115107 Re: Meeting on January 16, 2007 Re: Maricareec: All members of the Board X Urgent ❑ For Review CI Please Comment ❑ Please Reply ❑ Please Recycle To Whom It May Concern: Please distribute a copy of the following letter to each member of the Contra Costa County Board of Supervisors before tomorrow's meeting regarding Maric:are. Thank: you for your time and attention to this matter. � sJ�,AA � 01-15-2007 14:27 JONES 9252451470 h - !I 6 /�PJAGE2 January 15, 21007 VIA FACSIMILE (925)335-1913 To: The Honorable Members of the Contra Costa County Board of Supervisors From: "Sara Smith" (pseudonym to protect privacy pursuant to HIYAA) Re: Board of Supervisors meeting on January 16, 2007, regarding closing of Maricarc medical cannabis lacility Dear Honorable Members: My name is "Sara" (I use this pseudonym for the purpose of this letter in order to protect my medical privacy pursuant to IIIPAA regulations), and i am a registered medical cannabis user in California. I obtained my registration for medical cannabis after I suffered an attack by two men, during which 1 sustained multiple serious, long-term injuries, including a herniated disc in my neck,two herniated discs in my lower spin, neck, knee and foot sprains, and a host ol'other problems that are unfortunately excruciatingly painful and chronic. After I sustained these injuries. I was prescribed a total of I 1 medications to treat pain, anxiety. and almost-daily migraines. I took these medications for some months, including dilaudid, a synthetic morphine, and many other powerful narcotic pills which rendered me incapacitated. I did not have the physical or mental strength to get out of bed, let alone function in any meaningful way. I began to despair and wonder if the cycle of constant pain and a feeble attempt at pacification with so many oral medication-, would ever end. i knew that I could never{unction normally or hold a job if I continued to take these medications. To further complicate matters,a few months after starting this medication regimen, i was hospitalized a total of four times in two months, always presenting to the hospital with the same symptoms of very high fevers and high white blood cell count. On the last admission to the hospital, virtually every test in the book was performed on me, and it was discovered that I was in extreme liver distress. I was_iaundiced, and my body was attempting to battle the over-toxification o1`my blood from all of the medications I was taking. I was literally overdosing on prescriptions that had been given me by various doctors-each and every one of whom was aware of what the others were prescribing to me. I made a very difficult but necessary decision to throw away all of the medications I was taking, at the risk of suffering from debilitating pain. And since making that decision, I have sutl'ered greatly, but my liver has returned to a completely normal function, thunk God. However, the pain is mind-numbing and 1 had to find an alternative mode of relief. What a God-send medical cannabis has been. i am very careful in my use of medical cannabis, using it in the privacy of my own home, at night, so that I can sleep. The 01-1'5-2007 14:27 JONES 9252451470 PAGE3 frequency of my migraines has sitmificantly decreased, and I am able to sleep better, thus allowing me to function. I do not feel like a"drugged out zombie", as 1 always did when taking the oral narcotics that had been prescribed to me. I am able to be a functioning and productive member of society, who has a post-baccalaureate education and has worked in the legal industry for 16 years. I can care for my family, and enjoy a quality of life that would not have been possible had 1 continued my deadly course of prescribed pills. I tell you this by way Of background, so that hopefully you will understand what the average plight is of a medical cannabis patient, and why Maricare is so important to the medical cannabis patients (if Contra Costa county. So many patients suffer from life- threatening maladies and/or daily, intractable pain that makes traveling to the far reaches_ of other counties impossible, if not unduly burdensome at the least. I have been to several medical cannabis dispensaries, and 1 tell you, in all due respect, that Maricare is by far the most caring, professional, safe environment that I have seen. There are several security measures in place, every patient is registered, the stuff is friendly and completely professional, and 1 have never once seen any untoward behavior occurring at Maricare. Quite to the contrary, as a woman, I always feel very safe going to Maxicare, as it is not located in a crime-ridden enclave in an urban location. Maricare is providing a vital service to the citizens of Contra Costa county by providing safe, professional, legal access to medical cannabis patients, who so desperately need access to their medication, access that has been mandated by the State of California. My humble plea is that you will vote to allow Maricare to continue to operate at its current facility on Aspen Drive in Pacheco. Maricare is providing a vital, very necessary service to scores of patients who would otherwise suffer needlessly and endlessly if denied access to medical cannabis that is located at a safe, reasonable location. Please show your support and be leaders in the ever-growing movement to allow access to medical cannabis. 'lliank you so very much for your time. Very truly yours, ,S',Sara Smith" • CONTRA COSTA COUNTY BUILDING INSPECTION DEPARTMENT AFFIDAVIT OF POSTING, SERVICE BY MAIL OR HAND DELIVERY STATE OF CALIFORNIA ) COUNTY OF CONTRA COSTA ) • I declare that I am a duly appointed, qualified employee of the Building Inspection Department of the County of Contra Costa, State of California, that pursuant to Uniform Building Code Section 102 , Uniform Housing Code 1997 Edition, Section 1101 . 3 , and Contra Costa County Ordinance Code Chapter 14-6 . 4 Uniform Public Nuisances . X 1 . I deposited attached document (s)Notice And Order To Abate in the United States Post Office in the City of Martinez, CA, certified mail postage prepaid, return receipt requested, to the persons thereinafter set forth and in the form attached hereto . X 2 . I posted the attached document (s)Notice And Order To Abate, on the structure on the property as herein listed. 3 . I have mailed a copy of the attached documents to the following persons C/O the County Clerk. 4 . Hand delivered. MariCare First Harvest Alternative 127 Aspen Dr. , #102V� �� Pacheco, CA 94553 AS PF_ R WIAK)AciE MariCare First Harvest Alternative (�e�►�_ vty �a,�,►r�� 127 Aspen Dr. , #101 Pacheco, CA 94553 Nettie Pineda 850 Weibel Circle Oakley, CA 94561 SITE: 127 Aspen Dr. #102 , Pacheco, CA APN: 125-140-026 Said notices were mailed/posted on August 8, 2006 . I declare under penalty of perjury that the foregoing is true and correct . • Dated: August 8 , 2006 at Martinez, California. PCb CLERK - -Robin Tur e Os d by: Phil fudolph 2-Mb L,64 M5 *� Q/ RECEIVED OWNER: Nettie ineda Anita Frias and Richard E. Frias all as Joint Tenants BOARD OF NOTICE AND ORDER TO ABATE CLERKCONTRA COSTA CO SUPERVISORS C.C.C. ORDINANCE CODE 14-6.410 • NOTICE IS HEREBY GIVEN that an illegal land use exists on property located at 127 Aspen Drive, Suite 102, Pacheco, Contra Costa County, California; APN: 125-140-026. The property is located in an 0-1 Limited Office zoning district. An inspection of the property was conducted on April 27, 2006. The inspection and additional evidence establish that a marijuana dispensary exists at the property. The marijuana dispensary on the property is an illegal land use in violation of Contra Costa County Ordinance Nos. 2006-12 and 2006-17, Ordinance Code section 84-44.402 and 84- 44.404, and Ordinance Code section 82-2.006. Ordinance No. 2006-12 was adopted by the Board of Supervisors on April 11, 2006. Ordinance No. 2006-12 is an interim urgency ordinance that established a moratorium on medical marijuana dispensaries. Ordinance No. 2006-17 was adopted by the Board of Supervisors on May 23, 2006. Ordinance No. 2006-17 is an interim urgency ordinance effective through April 10, 2007. Ordinance No. 2006-17 continues the moratorium on medical marijuana dispensaries established by Ordinance No. 2006-12. Section III of Ordinance No. 2006-12 and Section IV of Ordinance No. 2006-17 both provide as follows: "A medical marijuana dispensary is a prohibited use in all zoning districts of the County. While this interim ordinance is in effect, no applications for land-use entitlements or building permits shall be accepted or processed, and no land-use entitlements or building permits shall be approved or issued, for any medical marijuana dispensary at any location in the County." Under section 84-44.402 of the County Ordinance Code, a professional office such as one pertaining to the practice of medicine is a permitted use in an 0-1 zoning district provided that no merchandise is stored, handled, displayed or sold on the premises. Under section 84-44.404 of the County Ordinance Code, drug and prescription sales accessory to a medical office or clinic are not allowed unless: (1) a land use permit has been issued; and (2) the sales are definitely incidental to the primary use and are not visible from the street. No land use permit has been issued for the marijuana dispensary at the property. No land use permit was granted for drug and prescription sales accessory to a medical office or clinic at the property prior to the adoption of Ordinance no. 2006-12. No zoning approvals were issued for a professional office at the property prior to the adoption of Ordinance No. 2006-12. No certificate of occupancy has been issued for the marijuana dispensary. Ordinance Code section 82-2.006 provides that any use of land, building or structure contrary to the County Zoning Code (Divisions 82 and 84 of the County Ordinance Code) is unlawful and a public nuisance. YOU ARE HEREBY ORDERED TO ABATE SAID PUBLIC NUISANCE. • You must abate these zoning violations within 30 days of the issuance date of this Notice and Order to Abate. The issuance date is specified below. To abate these violations, you must cease using the property as a marijuana dispensary within 30 days of the date of this notice. You must not make available, sell, transmit, give, distribute, or otherwise provide marijuana to any person at the premises and must remove all marijuana and marijuana-related products from the premises within 30 days of the date of this notice. NOTICE AND ORDER TO ABATE APN: 125-140-027 August 8, 2006 Page 2 YOU MAY APPEAL FROM THIS ORDER OF ABATEMENT, but an appeal must be filed with the Clerk of the Board of Supervisors before the expiration of the number off days specified above for completion of the abatement. The appeal must be in writing; specify the reasons for the appeal; contain your name, address and telephone number; be accompanied by anappeal • fee of ONE HUNDRED TWENTY FIVE dollars ($125.00)-1 and be filed at the following address: CLERK OF THE BOARD OF SUPERVISORS, COUNTY OF CONTRA COSTA 651 PINE STREET, 1ST FLOOR, MARTINEZ, CA 94553 One who is legally indigent may obtain a waiver of the appeal fee. Upon timely receipt of the appeal and accompanying fee, or waiver, the Clerk of the Board will cause the matter to be set for hearing before the Board of Supervisors and notify you of the date and location of the hearing. If the Board of Supervisors hears this matter, the Board may reverse, modify, or affirm this order at the conclusion of the hearing this order becomes a final order if an appeal is not timely filed. If you have any questions regarding this matter, you may direct them to the County officer issuing this notice at the address or telephone number listed below. ISSUANCE DATE: August 8, 2006 Phi dolph, Building Inspector I Building Inspection Department 651 Pine St., 4th Floor Martinez, CA 94553 (925) 335-1142 PAL:prc Cc: MariCare First Harvest Alternative 127 Aspen Dr., Suite 101 Pacheco, CA 94553 Attention: Managing Director Nettie Pineda 850 Weibel Circle Oakley, CA 94561 Z:code-enf/robin/127 aspen drive—notice and order to abate • CONTRA COSTA COUNTY BUILDING INSPECTION DEPARTMENT AFFIDAVIT OF POSTING, SERVICE BY MAIL OR HAND DELIVERY STATE OF CALIFORNIA ) COUNTY OF CONTRA COSTA ) I declare that I am a duly appointed, qualified employee of the Building Inspection Department of the County of Contra Costa, State of California, that pursuant to Uniform Building Code Section 102, Uniform Housing Code 1997 Edition, Section 1101 . 3, and Contra Costa County Ordinance Code Chapter 14-6 . 4 Uniform Public Nuisances . I hand delivered the original Appeal Board Order and 19 copies to the Clerk of the Board regarding the below site address for further handling. The names below should be notified of the hearing: MariCare First Harvest Alternative James Anthony, Attorney 127 Aspen Dr. , '#�(�� Law Offices of James Anthony Pacheco, CA 94553 405 14th St . , Suite 610 Oakland, CA 9412 MariCare Firs arvest Alternative t P4C.Lk 127 Aspen Dr. , # Anita Frias Pacheco, CA 94 53 2694 P1a� Dr. Oakley, CA 94561 MariCa�re Fi t Harvest Alternative 127 Asper 0 0 Pacheco, CA 94553 Nettie Pineda 850 Weibel Circle Oakley, CA 94561 SITE: 127 Aspen Dr. , Pacheo, CA APN: 125-140-026 Said documents were hand delivered on _November 29, 2006 . I declare under penalty of perjury that the foregoing is true and correct . Dated: November 29 , 2006 , at Martinez, California . PCD CLERK Clerk of the Board of Sup0sors Contra John Callen Clerk of the Bourd Costa told �ounty Administration Building County Administrator 6�1 Pine Street,Room 106 Country (925)335-1900 Martinez, California 94553-4068 J John Gioia.District I Gayle B.Uilkema.District 11 Mary N.Piepho,District III ;'`� •``. Vacant,District IV 8i A, Federal D.Clover, District V November 30,2006 MariCare First Harvest Alternative Nettie Pineda&Anita and Richard Frias 127 Aspen Drive Pacheco. CA 94553 APN: 125-140-026, 127 Aspen Drive,Pacheco,CA To: MariCare First Harvest Alternative, accordance with Contra Costa County Ordinance Code Article 14-6.4(Uniform Public Nuisance Abatement rocedure), you are hereby notified that Tuesday,December 12, 2006 at 1:00 p.m. is the date and time set for e hearing of your appeal from the decision of the County Abatement Officer declaring that the above-mentioned property is a public nuisance in violation of the following: Ordinance Nos. 2006-12 and 2006-17; Ordinance ode sections 84-44.402 and 84-44.404; and Ordinance Code section 82-2.006. The hearing will be held in the cBrien Administration Building, (corner of Pine and Escobar Streets) Board of SupenJisor's Chambers, Room 07, 651 Pine Street,Martinez, California. e hearing will be conducted in accordance with procedures set forth in Contra Costa County Ordinance Code icle 14-6.4. A copy of the Uniform Public Nuisance Abatement Procedure is enclosed for your reference. f you challenge this matter in Court,you may be limited to raising only those issues you or someone else raised at the ublic hearing described in this notice, or in written correspondence delivered to the County at,or prior to,the public earing. ery truly yours, ohn Cullen,County Administrator and Clerk of the Board Y Kat erine tnclair,Deputy Clerk attachment ;c: County Counsel Building Inspection I 405 14th St., Ste. 610 510/207-6243 off lasanthonyacorn rstmet Counselor & Oakland, CA 94612 510/763-6255 fax at Law CtyC December 6, 2006 PHIL- Aq 0 7 2006 John Cullen CLQ ' 13 OF UpE Clerk of the Board of Supervisors gZS/6 q-6- Ko TR�Co T,;cc)RVISO 651 Pine Street, Rm. 106 s � Martinez, CA 94112 Via Regular Mail and by fax to 925-335-1913 (1 page only) Re: 127 Aspen Dr., Ste. 101, Pacheco, REF: RF06-00523 Appeal of Notice and Order to Abate of August 8, 2006 REQUEST FOR CONTINUANCE OF HEARING SCHEDULED FOR DECEMBER 12, 2006 Dear Mr. Cullen: Pursuant to CCC 14-6.418(5), Appellants hereby request a continuance of this hearing for good cause shown. Plaintiff's land use attorney, James Anthony, who has represented them in this matter since April of this year, and who prepared this appeal, is unavailable on this date. Mr. Anthony will be in Riverside County for a preliminary injunction evidentiary hearing in the matter of City of Corona v. Naulls in Riverside County Superior Court. Pursuant to CCC 14-6.418(1), Appellants are entitled to be represented at hearing by legal counsel. Mr. Anthony is currently available every Tuesday in January 2007 at 1:00 pm. He is on vacation for the last two weeks of December 2006. e Yours very truly, James Anthony Attorney for App la cc Thomas Geiger, Deputy County Counsel, 925-646-1078 fax & mail 510 531 6880 FROM JAMES ANTHONY • FAX NO. 510 531 6880 • Dec. 06 2006 08:32AM P1 405 14�r St., Ste. 610 C7cx,Ctan .CA 94.,b12S�� 5..10y/.207,-.6.:,2-43a : Counselor ',41,01763,6255 Attgmey & at Law December 6, 2006 �� �'a- John Cullen S 706 Clerk of the Board of Supervisors 651 Pine Street, Rm. 106 CLERK BOARD OF SUPERVISORS Martinez, CA 94112 CONTRA COSTA CO. Via Regular Mail and by fax to 925-335-1913 (1 page only) Re: 127 Aspen Dr., Ste. 101, Pacheco, REF* RF06-00523 Appeal of Notice and Order to Abate of August 8, 2006 REQUEST FOR CONTINUANCE OF HEARING SCHEDULED FOR DECEMBER 12, 2006 Dear Mr. Cullen- Pursuant to CCC 14-6.418(5), Appellants hereby request a continuance of this hearing for good cause shown. Plaintiffs land use attorney, James Anthony, who has represented them in this matter since April of this year, and who prepared this appeal, is unavailable on this date. Mr. Anthony will be in Riverside County for a preliminary injunction evidentiary hearing in the matter of City of Corona v. Naulls in Riverside County Superior Court. Pursuant to CCC 14-6 418(1), Appellants are entitled to be represented at hearing by legal counsel. Mr- Anthony is currently available every Tuesday in January 2007 at 1:00 -Y. pm. He is on vacation for the last two weeks of December 2006. Yours very truly, ~� A James Anthon Attorney for pella cc Thomas Geiger, Deputy County Counsel, 925-646-1078 fax & mail t'.