Monday, May 6, 2013

California Supreme Court: Cities Can Ban Medical Marijuana Dispensaries

By David Downs
Mon, May 6, 2013 at 10:23 AM

The California Supreme Court upheld the right of cities and counties to ban medical cannabis dispensaries today in a unanimous decision with major ramifications for the state.

"We granted review. We now conclude the Court of Appeal‘s judgment must be affirmed," Justice Marvin Baxter wrote for the Court.

Cities like San Francisco, Oakland, and West Hollywood that have regulated medical marijuana collectives operating in storefronts — i.e., dispensaries — won't be affected, but the decision buttresses the bans of dozens of cities and counties like Riverside and Walnut Creek. And the decision will become a huge factor in cities and counties still on the fence about dispensary bans, as well as in the legislature, where efforts are afoot to regulate the state's estimated $1.3 billion medical cannabis industry.

Californians legalized medical marijuana for patients and caregivers in 1996, and the state legalized collectives and cooperatives in 2003. But the legislature left the details of such a policy blank — and the courts have filled them in one-by-one. The right of a city to ban medical cannabis dispensaries became a major legal skirmish that has percolated up to the state's Supreme Court.

The California Supreme Court
  • The California Supreme Court

The high court's decision stems from the case of City of Riverside v. Inland Empire Patient's Health and Wellness Center. The dispensary opened in Riverside in 2009, and the city ordered it to close, so the club took the city to court. After two legal losses, the club appealed to the state Supreme Court.

Dispensary attorney J. David Nick said that a city's land-use powers are not equivalent to the power to ban use. Cities have tried and failed to ban mental-health hospitals, domestic violence shelters, laundromats, gas stations, and cemeteries from opening within town limits, he wrote in his brief. Medical marijuana dispensaries are protected by state law, he argued.

The high court upheld dispensary bans, saying current state law does not specifically prohibit bans. Associate Justice Ming Chin told Nick during oral arguments in February, "The legislature knows how to say, 'Thou shalt not ban.'"

In the ruling, the Justices wrote:

"... while some counties and cities might consider themselves well suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens."
...
"The state statute does not thereby mandate that local governments authorize, allow, or accommodate the existence of such facilities."
...
"We must take these laws as we find them, and their purposes and provisions are modest. They remove state-level criminal and civil sanctions from specified medical marijuana activities, but they do not establish a comprehensive state system of legalized medical marijuana; or grant a ―right of convenient access to marijuana for medicinal use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local accommodation of medical marijuana cooperatives, collectives, or dispensaries."

"Of course, nothing prevents future efforts by the Legislature, or by the People, to adopt a different approach."

Tens of thousands of Californians who need the herbal remedy will lose access to it at storefronts, advocacy groups note. Several hundred thousand Californians are estimated to be medical marijuana patients.

More analysis and reaction in this week's Wednesday print edition.

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