2011-10-06 "Cities can't give permits to pot clubs, court says" by Bob Egelko from "San Francisco Chronicle" newspaper
[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/10/05/BA261LDSIS.DTL]
Federal law prohibits California cities from issuing permits to collectives authorizing them to supply marijuana to medical patients, a state appeals court has ruled, raising questions about the scope of local regulation of pot dispensaries.
In overturning a Long Beach ordinance, the court said the city went a step beyond California's action in 1996, when state voters eliminated criminal penalties for patients who used marijuana with a doctor's approval.
Deciding not to prosecute someone for drug use doesn't conflict with the federal ban on marijuana possession and distribution, the court said. It also said a city's restrictions on marijuana dispensaries, such as limiting their locations and operating hours, wouldn't violate either federal or state law.
But by issuing permits that let a certain number of pot collectives operate within city limits, the court said, Long Beach has put a stamp of approval on an activity that federal law forbids and is interfering with nationwide drug enforcement.
"The city's ordinance ... goes beyond decriminalization into authorization," the Second District Court of Appeal in Los Angeles said in a 3-0 ruling Tuesday.
Long Beach could appeal to the state Supreme Court or could try to revise its ordinance, either by following the appellate panel's guidelines on regulations or by banning dispensaries altogether. The city attorney's office did not respond to a request for comment Wednesday.
Medical marijuana advocates said the ruling, if it stands, will set new criteria for the diverse rules on pot suppliers adopted by many cities and counties since California voters approved the law in 1996.
"It makes it more difficult for cities (to regulate), but I don't think it eliminates their authority," said attorney Michael Risher of the American Civil Liberties Union in San Francisco. He said cities could apply health, safety and zoning laws to marijuana collectives.
Although the ruling appears to prohibit local governments from limiting the number of suppliers by issuing permits, a city could largely reach that goal by requiring dispensaries to locate in certain zones and at certain distances from each other, said attorney Ruthann Ziegler, who has represented cities in other marijuana cases.
The Long Beach ordinance limits dispensary locations and operating hours, sets safety standards including laboratory testing of the drugs, and requires dispensaries to pay a nonrefundable application fee of more than $14,000 and an annual renewal fee of at least $10,000 if they win a lottery for a permit.
But Matthew Pappas, lawyer for two patients who challenged the ordinance after their collectives did not qualify for permits, said Long Beach is actually trying to ban medical marijuana collectives. He said one client's dispensary was the target of a raid in May by more than 25 officers who used a battering ram to break down the door.
"Patients don't have any problems with reasonable restrictions," Pappas said. But he contended a local ban on dispensaries would violate federal disability law, a position he argued in another Southern California case now pending before a federal appeals court.