Cities Can Ban Medical Marijuana Dispensaries

Cities Can Ban Medical Marijuana Dispensaries: Appeals Court

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By Steve Elliott ~alapoet~ in Dispensaries, Legislation, News

Friday, November 11, 2011 at 2:20 pm

Mark Zaleski/Riverside Press-Enterprise

Medical marijuana patient Abel Chapa demonstrates in front of Riverside 4th District Court of Appeal as arguments are heard in two medical marijuana dispensary ban cases, one in Riverside and one in Upland

​In a decision that could have immediate effects, California cities and counties can ban medical marijuana dispensaries within their borders, a state appeals court has ruled.

Other courts have upheld local governments' authority to restrict and zone the locations of the shops, or even declare temporary moratoriums, but Wednesday's ruling, in a Riverside case, was the first to address a citywide ban, reports Bob Egelko at the San Francisco Chronicle.

The issue has made its way through the California courts for years, but the opinion issued Wednesday is the first one that directly addresses the issue in unambiguous language, reports John Hoeffel at the Los Angeles Times. The decision upholding Riverside's dispensary ban will likely result in more cities and counties prohibiting the pot shops.

The 4th District Court of Appeal ruled that state laws permitting cultivation, possession, and nonprofit distribution of marijuana for medical purposes do not stop cities and counties from banning storefront operations, reports Jacob Sullum at Reason.

Mark Zaleski/Riverside Press-Enterprise

Protesters gather in front of the Riverside 4th District Court of Appeals as arguments are heard inside on two medical marijuana dispensary cases

​A three-judge panel rejected an appeal from Inland Empire Patient's Health and Wellness Center and ruled that the state's medical marijuana laws do not prevent cities and counties from passing regulations in dispensaries -- including outright bans. The judges also issued a nearly identical unpublished opinion Wednesday, upholding Upland's ban.

Riverside city officials said they now plan to take action to shut down an estimated 15 dispensaries violating their ban. "We will be moving immediately to shut them down," said City Attorney Gregory Priamos. "We're extremely pleased that the court recognized and respected local land use and zoning authority."

According to patient advocacy group Americans for Safe Access, 168 cities and 17 counties in California already ban dispensaries. About 80 cities and about 10 counties have moratoriums, while just more than 40 cities and about 10 counties have ordinances that specifically allow the shops.

Expect that number to go up, especially in light of last month's decision from Long Beach overturning that city's dispensary licensing system on the grounds that the city can't license something against federal law. Many state officials are still puzzled by the Long Beach ruling, wondering about what rules they can impose.

ASA

Joe Elford, ASA: "I would hope that they would do the responsible thing and continue to regulate dispensaries"

​Together, the two decisions will almost certainly lead more cities and counties to put dispensary bans in place.

"I would hope that they would do the responsible thing and continue to regulate dispensaries," said Joe Elford, chief counsel for Americans for Safe Access. But Elford said he feared a wave of bans would happen.

"Local officials who are worried about conforming to that distinction now have a much simpler, court-endorsed option," Sullum wrote at Reason.

"I think it's impact will be significant throughout the state," said Jeffrey Dunn, an attorney who argued the case for the City of Riverside. "It's not wishy-washy. It squarely addresses it. And it makes it very clear."

"This really puts the green light out to all city attorneys that they can take action immediately to shut [dispensaries] down," anti-drug zealot Paul Chabot told the Los Angeles Times. "The tide is turning against so-called medical marijuana in California," Chabot crowed.

The recent court decisions could give the California Supreme Court an opportunity to address issues that have remained unsettled for 15 years, ever since voters made the state the first in the U.S. to allow medical marijuana back in 1996.

A lawyer for a medical marijuana patients' cooperative called the ruling a "radical departure" from past cases, and from California's medical marijuana law, and said he would appeal to the state Supreme Court.

SB 420, a 2003 state law, was passed by the Legislature to "enhance access to medical marijuana" by enlarging and clarifying the medical marijuana law by allowing patients to grow and supply cannabis through nonprofit collectives.

"How can you say you are enhancing access ... when you're permitting counties and cities to erode that very distribution system and to destroy it completely?" asked attorney J. David Nick.

An increasing number of cities, mostly in Southern California but also in the San Joaquin and Sacramento valleys, have outlawed marijuana dispensaries, according to Nick. A ban in all unincorporated areas of Los Angeles County is currently being challenged in court.

The founder of the Riverside dispensary, Lanny Swerdlow, said he expects the collective will appeal Wednesday's decision.

"We think that it's wrong that a city can ban a state-permitted activity by zoning it out of existence," Swerdlow said. "By allowing cities to ban, it just makes a crazy-quilt pattern across the state."

Tags: california, dispensary bans, upheld, cities can ban marijuana dispensaries, dispensary ban

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