San Jose Says Pot Club Has Broken Zoning Laws

Maria Alicia Gaura, Chronicle South Bay Bureau

Just one month after it became the first U.S. city to
regulate medical marijuana vendors like any other business,
San Jose is seeking to close down one of its two medical
marijuana clubs.

City officials say Robert Niswonger, operator of the San
Jose Cannabis Club, violated city zoning laws by growing and
distributing pot too close to an elementary school, a church
and homes.

They further claim that he violated Proposition 215, the
measure that legalized medical marijuana in California, by
distributing marijuana to people who lacked a doctor's
approval.

A hearing on the charges is set for May 13 before Santa
Clara County Superior Court Judge Peter Stone. Stone refused
Friday to grant a temporary restraining order, allowing the
disputed club to stay open at least until the hearing.

Niswonger admitted that the city's allegations are generally
true, but he argued that the city has no right to regulate
medical marijuana.

``This isn't a zoning issue, it's a Proposition 215 issue,''
Niswonger said. ``Medical marijuana has been legal since the
first of the year.''

``They say I didn't ask (for a prescription). Well, so
what?'' Niswonger said. ``If someone says they have AIDS and
their doctor won't give them permission, and they look you
in the eye . . . I'm guilty of compassion.''

City Attorney Joan Gallo said she could not comment on
pending litigation. But court documents say Niswonger has
not applied for a city permit to operate a medical marijuana
dispensary, is growing marijuana in his central San Jose
home, and has advised callers on ways to fake a doctor's
permission to use medical marijuana.

Last month the City Council unanimously approved changes to
zoning law that allow pot clubs to locate in commercial
areas of San Jose as long as they are 150 feet from
residences and 500 feet from churches, schools and day care
centers.

The city bans smoking on the premises and prohibits entry of
people under age 18.

Another marijuana dispensary, the Santa Clara County Medical
Cannabis Club, has located in an approved area and has
applied for a city permit.

It is legally distributing marijuana to patients while
awaiting its permit, and the club's cofounder, Peter Baez,
has publicly denounced Niswonger's operation.

Some other medical marijuana supporters have criticized
Niswonger, saying he discredits the movement by defying city
law and by his erratic behavior and ever changing
pronouncements. But John Entwistle, spokesman for the San
Francisco Cannabis Cultivators Club, says that Niswonger's
challenge to the San Jose zoning law is a necessary step.

``He's a bureaucrat's nightmare,'' Entwistle said. ``He is
annoying, but he may be right. We don't accept the logic
that (marijuana dispensaries) should be away from schools
and churches they're not any kind of threat to
religion.''

Niswonger says he plans to keep growing and distributing pot
until he is forced to stop. ``I'm a homeowner, and I pay my
taxes,'' Niswonger said. ``I will continue doing what I'm
doing until they drag me out of here kicking and screaming
and clawing and scratching.''


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