Scott McPhail has no intention of moving his nonprofit medical marijuana dispensary, Purple Cross Rx, out of Los Banos despite the urging of city officials.</p><p>City Attorney William Vaughn sent McPhail and Richard Scagliotti, the owner of the suite the dispensary is renting, a cease and desist letter about two weeks ago.</p><p>Vaughn said the letter outlined the city's ban on medicinal marijuana clubs and the financial penalties for violations.</p><p>"Not at all," McPhail replied, when asked if the letter had made him consider closing his Mercey Springs Road dispensary. </p><p>"The Anaheim ruling came out that cities cannot ban dispensaries," he said. "They can't use the excuse that federal law is over state law."</p><p>On Aug. 18, a three-judge panel on California's 4th District Court of Appeal issued an opinion that a lower court "erred" in declaring that federal law, which prohibits any use of marijuana, pre-empted state law that allows specific medical-marijuana activities.</p><p>The opinion addresses the case of Qualified Patients Association, an Anaheim-based medical marijuana cooperative, versus the city of Anaheim. Qualified Patients sued the city in 2007, when Anaheim attempted to implement an ordinance banning all medical marijuana dispensaries. </p><p>The judges ordered that the component of the case dealing with whether cities have the right to ban medical marijuana be brought back to the trial court level for more hearings. </p><p>Los Banos, which has had a ban in place since 2006, is taking the approach of it being a zoning issue.</p><p>"Cities are allowed to set up what uses they will and will not permit within city limits. Cities can limit land uses. Medicinal marijuana dispensaries are not allowed in any zones in Los Banos," Vaughn said earlier this month.</p><p>He also said the owner of the facility that houses the dispensary could face fines of as much as $500 a day if Purple Cross Rx continued to operate at the location.</p><p>McPhail said he realizes Scagliotti may stop renting to Purple Cross Rx to avoid the fines.</p><p>"Most likely, we'll move but we won't move (soon)," McPhail said.</p><p>He said that there are rights he will exercise that can keep the dispensary at its current location for months. </p><p>Scagliotti did not return repeated phone calls requesting comment.</p><p>Vaughn and Police Chief Gary Brizzee said the city is concentrating on using administrative fines to get the dispensary to shut down. McPhail said their efforts do not matter because he plans to appeal all of the fines the nonprofit receives.</p><p>McPhail verbally lashed out at Brizzee, who crafted the city's medical marijuana ban.</p><p>"That fella there is making up laws. He's a peace officer. I believe he's too involved and he's stepping outside what he's supposed to do, protect our rights," McPhail said.</p><p>Brizzee responded: "I think he's absolutely wrong. Part of our responsibility is to keep the community safe and I'm well within my responsibility in drafting (the ordinance)."</p><p>Purple Cross Rx opened in Los Banos during the last week of July despite failing to obtain a business license and specifically being told by city staff that medical marijuana dispensaries are banned.</p><p>McPhail plans to attend a City Council meeting, possibly as soon as next week, and lobby members to rescind the ban. </p><p>McPhail said he has applied for a fictitious business license with Merced County, but he would not say whether he is interested in moving Purple Cross Rx into county territory if he's forced out of city limits.</p><p>"Anything's possible, but I don't like to say where I'm going," McPhail said. </p><p>Enterprise reporter Corey Pride can be reached at 388-6563 or by e-mail at cpride@losbanosenterprise.com.