VitalGen Sues City, Claiming De Facto Marijuana Dispensary Ban

Erik and Bret van den Akker, who seemed poised to open Albany's first last fall, have brought a civil rights lawsuit against the city after officials shot down their plans earlier this year.

The City Council will discuss the lawsuit, dated April 15, in closed session Monday night.

The brothers claim "there is no permissible location in the City of Albany for a medical marijuana dispensary," according to their complaint, which is attached to this story as a PDF. 

The complaint cites a city finding detailing two possible locations for a dispensary, between 600 and 660 Cleveland Ave., and between 1001 and 1025 Eastshore Ave. 

The van den Akkers state that they "engaged a land surveyor who conducted a review" and found that "these locations do not meet the distance requirements" of the city's dispensary ordinance. (See the full ordinance as a PDF to the right.)

"Since the City Council made a finding that these are the only possible locations, when in fact these locations are incompatible with the Planning and Zoning code...distance requirements, the City Council's decision constitutes a complete and total de facto ban on medical marijuana dispensaries in Albany, in conflict with the will of Albany voters."

Voters approved the opening of a single dispensary within Albany's city limits in 2006.

Because there is no permissible location, the van den Akkers claim, Albany has violated the state constitution's right to privacy, right to associate and equal protection clause. 

"The City's de facto ban is based solely on animus and prejudice against medical cannabis users," the lawsuit states. "This irrational fear of medical cannabis patients, and their discriminatory treatment compared to other similarly situated residents of the City of Albany, has no rational relationship to any legitimate government purpose." 

The van den Akkers ask for "a timely declaration" by the court because "the City is currently reviewing the applications" of other dispensaries. 

They request a temporary restraining order pending resolution of their case; a preliminary and permanent injunction against the city; and a declaration that the city's alleged ban is "unlawful and unconstitutional."

They also ask for "reasonable attorneys' fees," court costs and "further relief as the Court may deem just and proper."

A hearing before Judge Robert McGuiness, in Alameda County Superior Court, is scheduled for Aug. 29.

The brothers also have filed, separately, for a "writ of mandate" asking the court to direct Albany officials to reconsider their to refuse them a business permit, and grant payment of legal fees, court costs and "further relief."

Last October, the brothers after seemingly meeting the city's many requirements related to opening a medical marijuana dispensary, VitalGen, Inc., at 1019 Solano Ave.

Dozens of neighbors protested the location, citing safety concerns and saying many Albany children would have had to pass by the business on a daily basis. 

City commissioners ultimately for a permit to open the business, saying the chosen location was too close to a youth-oriented facility, the . 

The brothers appealed to the , which in January.  

See more background on this subject, along with numerous letters to the editor and community comments, .

Everybody makes mistakes ... ! If there's something in this article you think should be corrected, or if something else is amiss, call editor Emilie Raguso at 510-459-8325 or email her at emilier@patch.com.