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Dispensary appeal could go to hearing

Pot dispensary appellant’s fires still smoldering

 

Two applicants appealing a decision against granting them a cannabis dispensary permit could be headed to a formal hearing.

Retired Judge Albert Dover, appointed by the city to oversee the process, recommended last month that the Grass Valley City Council hold a hearing. The council can now adopt that recommendation, amend it or send it back to Dover for more work, said City Attorney Michael Colantuono.

“If the council accepts Judge Dover’s recommendation, it will likely be part of the June 28 council agenda or possibly in July,” he said.



Several applicants wanted the permit, though the city granted it to only one — Provisions Development LLC. Sierra Flower Co. LLC; and NUG Inc., doing business as NUG Grass Valley, then appealed.

Dover’s recommendation set out the order of presentation and timing of oral arguments for the hearing. Sierra Flower, 30 minutes; city of Grass Valley, 20 minutes; NUG Grass Valey, 30 minutes; city of Grass Valley, 20 minutes; and Provisions Development LLC, 20 minutes.



According to Tom Last, community development director, Provisions as of Friday had not submitted an application for the permit. The city’s process allows a year to obtain a permit once approval is given.

HISTORY

The appeal reached this point after both Sierra Flower Co. LLC and NUG Grass Valley filed legal briefs in March. Ariana Van Alstine, an attorney representing Sierra Flower, argued that the city, which is only allowing one retail dispensary permit, created a monopoly in favor of Provisions Development LLC in violation of public policy.

Grass Valley rules call for one permit per 7,500 residents of the city, and no more than two permits total for dispensaries open to the public for retail sales.

“The city interpreted it would issue only one license,” Van Alstine has said.

Additionally, the city’s action favors a particular business and is anti-competitive activity, the argument states. “The single permit process was set up for the benefit of Provisions and should be invalidated as anti-competitive,” she argued.

Stephan Ramazzini, attorney for NUG Grass Valley, argued his client was deprived of a fair hearing as the rules were changed mid-process. According to Ramazzini, committee member Jonathan Collier said, “I did not feel comfortable with participating unless we had a minimal two-phase process which included the initial scoring and then an interview phase. Not having that seems negligent to me.”

The likely reason city staff denied Collier his interviews is because the city wanted to favor a local applicant, Ramazzini said.

CITY ARGUMENTS

Colantuono in his arguments said that NUG did not show how an interview would have overcome a bias, even if one were present. The committee unanimously ranked NUG’s proposal last. An interview was unlikely to surmount the deficits NUG faced.

“The city reasonably determined that interviewing all seven applicants was an unnecessary administrative burden,” he said. “No tie breaker could save the seventh place finisher.

“Even if the court finds one reviewer acted arbitrarily, the result would not change,” Colantuono has said. “Provisions received the highest score from every reviewer, and the highest average score from any pair of reviewers.”

If the City Council should deny both appeals, the appellants’ remaining option would be to file suit, Colantuono said.

Provisions Arguments

Yet it was the appellants that had the burden to produce evidence of reversible error and persuade the hearing officer by a preponderance of the evidence, and Judge Dover heard arguments from both appellants, as well as the city and Provisions, Cameron Brady, attorney representing Provisions explained. “Provisions submitted that the selection committee conducted a neutral, objective, merit-based evaluation of each application for a license to operate a storefront dispensary; the appellants failed to show the selection of Provisions was unsupported by substantial evidence, and failed to meet their burden to produce evidence of reversible error. Judge Dover agreed with this decision in his tentative findings.

On May 25 after oral argument Judge Dover issued his recommendations. He concluded the city of Grass Valley did not error in its decision and recommended to affirm in its entirety the decisions appealed. “We’ re obviously pleased in this outcome and look forward to shifting our focus to developing the Idaho Maryland site in preparation for opening,” added Brady. “Provisions has been delayed as a result of the appeals but expects to obtain the necessary permits soon and anticipates opening at the start of 2023.”

William Roller is a staff writer with The Union. He can be reached at wroller@theunion.com

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