0? ame?irzgr Building am: ?051.52 [En?rcem?m wagimm my HQEECE or mergrem Pr??perty JOWner: Bate 20f W?tt?ii Decision; July 2.4, 20114 7 Stew Ng?a - Case: 201304419 Qccupaint: San Jase Organics: SubjectAdd?ress; 88,. "fully Road #109, San Jose, CA 1 Attorney: Hearing Date: July 22, 2-014 G?eo?rey W. 7 255 N. Market St, Suite 265' San Jose, CA 951.10 Sam Jose?M?uniicipaI Code Sectiens, cited in the Compliance Order: 20.1 0.030 Compliance required 20.40.01!) Commercial Districts 20.40.1110 Allowed uses and jpermit requirements AUTHORITY San Jose Municipal Code 1.14.045 Director's hearing. A. If a person subject to a campIiance- order disputes 111$ basis for the isauance of the complianc? Order, "the person ?le a request. for beforethe. directar within fburtcen calendar days of?ae. date ?rat order was mailed or persanaHy delivered to or. her. Upcm the. receipt; of a rsguest fgrheariing, the director shall schedule a. hearing as 50011 as reasonahl'y practicabie and provide 1a notice of hearing. C. The notice of hearing- before the director shall be mailed or delivered personally to thejperson subject to the compliance order not later than; seven calendar days prior to the scheduled date of the hearing; I). At the hearing before the direcror', the 1331:3011 subj?ectto a compliance order may provide any religvant?evidence or. testinrony; The haa?ng will be cpnd?bted informally and the IeChn?ica'l rules of evidence shall not apply. The director shall'have the: abilityito controlCempiian'ce- Grderu?ppeel Netiee sofi?eeis?r'eh Code Enforcement case: 297130-4419 Page '2 ref-4' the conduct of the preceedhtg, ineiuding the abii?y to testimony and the .a?missibi?ty ofevidenee tint is unduly repetitious makle other rel-high or place ether liirritetiens? on the hearing that the director deems to he in the i?terests of judicial eco??mye The person subject tn a eempliance Order Maybe repriesentedby another person at that hearing befores?re :direCtor. 1.95;.886 Acts of ?ep?t?ies- or dilesignees. Whenever a pQWer?i's granted to or duty is imposed" upon a pubiie officer. err employee, the city Charter 01? this code eelpressly pro?des otherwise, the pGWer be exercised at the duty may be yerfenned by a deputy or designee of such effieer or employee why any persen SQ au?mrized pursuant to law or ordinanee.? Decisien? ef air?e'ctor. . Ar After closingthe hearing, the directer shall render a decision sustaihing, reversin or modifying: the order. B. A written decision shall be mailed or delivBIEd personally to the personzrsuhj eet'to the compliance Order. C. Iftheperson-suhjeet to the compliance order disputes the decision of?the directerrequest? for hearing with-the secretary-rofme appeals hearing beard within ten days of the date ofthe?written decision 'ofrthe director. D, If there. is, no timely request for appeal, the decisi?n (if the (lite-Eta: shall become ?nal. We Rawlings, Esq? made a. {?111er request for a director?s heari?gin the above referenced matter to dispute the Compliance, Order issued Jame: 10, 2014?. {Attachment The hearing was conducte? by Mollie McLeed, director?s, designer; en Julyzz, 2014. The proceedings were recorded.. Participants signed the roster; [Attachment The follewing individuals were; present as: hearinglparfieipemef Rawling-s, at.me for; the: and celleetive, Wong, consultant, Steve-Ngo, Arevalo? {lode Enforcement Insyeeter, and Elisa To'len?tin?o, Deputy City Attorney; The hearing proceedings began at head ann'pening statement that proVidEd general information album: the proceetfingst exits and Evidence in: Dis ute ofthc ?ance Grader Ar Rawlings made the following statements and arguments: ?0 Sen-leer: Organics operates all the mics .estabIjShed to comply-with. SB 420 anti the Medieal Marijuana: Program Act. ?"m?dmwu m. .L .. map-?Mm - uw wu- A w. Compliance Orch Appeal? Notice of Decision Code Enforcement Cass: 201304419 Page 3 0:4 9: There is a ridiculously'srnall area, where conscrich could be location let alone persuading a landlord to- rent to type of business. 0- were duo-to probicms caused by Holistic Health, a modical marijuana collective that'ris now closed.? San Jose Organics provides security? grotmds keeping. and janitnrial services. 0 Enforcementrwas done selectively. In" support of Mn Rawlings that. San Jose Organios a; scourity and trash is rernotfcd from the center, he. submitted six photographs showing a security guard and Workers using pick up sticks to remove litter. [Attachment - Wong stated thattihc security guard was present from .111 re?arn -- 8:00- pmancl two members pick? "up garbage daily no matter the source. Wong statod that ceasing operationwould be a hardship to the 5,500 6,600 members. Wong ?n?icr statcd that some members use Wheelchairs and rely on public transportation Mn. Rawlings requested a stipulation that would allow San Jose; Qrganicsto 'op'cratc at '88 Tully Road #100; San Jone until the, 6nd? of the year or at locust 129 days. Raw?ngs. further stated that it Would be: helpful for the City to observe. the difference to see that Holistic Health was the collective not San Jose Organics. omen-ts in 7 on of tho Corn- ?lianCo, Order M1: Arcvalo stated that has conducted an inspecticn on'Ap?l 25,7 2014 and con?nncd that San Jose Organics is operating as a medical marijuana collective. Mr. Arenalc- submitted a Zoning map Showing. 88 Tully Road (AFN: 47747-001) is Iccated within .3. Cameron! Neighborhood (CN) zone. [Attachnicnt Mr; ?Ar?c?xialo' also submitted; advoniSemcnt far San Jes'c Organics and a Yelp review of San Iosc Organics asa cannabis clinic. [Ansonm?nt Are-Vain reviews the municipal code sections citsd in tha Compliance Order he issued On. June 10,2014 Arovalo stated that medical marijuana callectiyerwas not an allowed use in the CN zone at the time Compliance Order wasissucd and it remains a prohibi?tcd use at this location. Tolentino ?responded to Rowlings argument about selective enforcement by Stating that the City Council ?iroct?od staff to take enforcement action onthc colloctincs locath at 88 Tully Roadsduc to complaints to them. M's. Tolenrino submitted copies of complaints as evidence. [Attachment-F] 'Tolcntin'o stated that thorn are limited staifrosomces for and the City Council for enforcemcnt. In response to a question by: the-Hearing Of?cer; Arcvalo stated that enforcement action Was taken in accordance With City Council priorities. Arcvalo ?ll-?ier stated that Compliance Orders ?wore "issued to all three collectives speci?cally identi?ed by the City Conncil due to complaints they groccivcd. Concludin Statements from Dis utin? Pa iMr,_ reiterated his argument that the problems were caus'cd'hy Holistic Health, not San Jose Organics. Rowlings requesrad a probatioIrary pcnod'. ulna-aw uu-uww r- ow.? u. Order" t?f 'Bc?isiitrn Code Enforcement Case: 20.130441? Page 4 ef 1} ANALYSIS AND FINDINGS: There was nodispute over the subj e?ct pl?eperfy?s gaming as Comm??rcial N?ighhorhood (ON) Zoning District. Municig- a1 Code Madical matij Hana allowmi use in the 20121:. Table 20-: 90 identi?es the-penni?ed, conditional, special, admh?strativg not pem??ed-useg. At the. time the Compliance Order was showed._ the;- medi-cai marijuana collective was not apexmitted use in 12116 EN zone. The? City Council subsequently adepmd Ordinance: No. 29426 amendigtIg Title 2.0.. Table ?2 0-90 no longer-lists madical marijuana collective as a use therefcyre. it. is not permitted in any commercial Ewing CONCLUSIQN . I ?nd that?the medical marijuana-related activities at the siibject 'prOperfy describ?d the testhnony and Shown in: 1113 addence presented .for'censidera?on are: prohibited under- Title '20. I am upholding-the Compliance 016er and denying a requast t9 modify the compliance: date}. San Jose Organics is required to cease providing or distributing medical marij Hana products from The premiSBS located at 88 Tully Road #1 0?0? Jose on or. before: July 3 1, 230147OFFICER '1 Ordinance-14029420 is avai?labie?onlineath