2011-11-11 "Cities can prohibit pot dispensaries, court rules" by Bob Egelko from "San Francisco Chronicle"
(11-11) 13:03 PST SAN FRANCISCO --
Cities and counties in California can prohibit medical marijuana dispensaries within their borders, a state appeals court has ruled.
Other courts have upheld local government authority to restrict the location of pot suppliers or declare a temporary moratorium, but Wednesday's ruling, in a case from Riverside, was the first to address a citywide ban.
A lawyer for a 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.
A 2003 state law was intended to "enhance access to medical marijuana" by allowing patients to grow and supply the drug through nonprofit collectives, attorney J. David Nick said Thursday. "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?"
Nick said an increasing number of cities, mostly in Southern California but also in the San Joaquin and Sacramento valleys, have outlawed marijuana dispensaries. A ban in all unincorporated areas of Los Angeles County is being challenged in court, Nick said.
Moves against industry
The ruling is another blow to medical marijuana suppliers in California, after last month's announcement by federal prosecutors throughout the state that they have threatened dozens of property owners with forfeiture and criminal charges for letting pot dispensaries rent office space.
Riverside banned medical marijuana outlets in 2009 and sought to shut down Nick's client, Inland Empire Patients' Health and Wellness Center, in May 2010. A Superior Court judge ruled in the city's favor six months later, but the center has stayed open during its appeal.
In Wednesday's ruling, the Fourth District Court of Appeal in Riverside said state law allows medical patients to use marijuana, and to form collectives to supply it, but does not exempt them from local government authority to regulate land use.
Means of regulation
California laws "do not provide individuals with inalienable rights to establish, operate or use" dispensaries, nor do the laws declare that dispensaries "shall be permitted within every city and county," Justice Carol Codrington said in the 3-0 ruling.
State law expressly allows cities to regulate marijuana outlets or restrict their location, Codrington said, and a total ban is "simply a type or means of restriction or regulation."
Riverside's lawyer, Jeffrey Dunn, said the local bans grew out of short-term moratoriums that many cities adopted in response to an "explosive growth" of medical marijuana shops in the past five years.
California law provides patients and their authorized suppliers with a "limited immunity from criminal prosecution" while leaving cities and counties free to regulate or prohibit dispensaries, Dunn said.