Wednesday, February 6, 2013

California Supreme Court Appears Ready to Uphold Dispensary Bans

By David Downs
Wed, Feb 6, 2013 at 10:00 AM

The California Supreme Court appeared ready in oral arguments Tuesday to uphold a city's right to ban dispensaries.

About two hundred California cities and counties have banned lawful medical marijuana collectives from distributing the drug in storefronts for cash to patients, including the city of Riverside. Dozens of others like San Francisco, Oakland, Richmond, and Hollywood tax and regulate clubs. In 2012 Riverside shut down Inland Empire Patients Health and Wellness Center (IEPHWC), citing a local ordinance that labels dispensaries a nuisance.

IEPHWC appealed to the highest court in the state, which took the case and promises to settle the statewide issue once and for all. A verdict is expected within ninety days. During a question-and-answer session before the hearing Tuesday at USF, Associate Justice Joyce Kennard said the court ideally has a majority opinion on a case before oral arguments. But oral arguments offer each side a chance to flesh out the difficult issues live and hopefully deal a fatal blow to opposing counsel's argument.

Medical marijuana patients in no way dealt such a fatal blow to their opponents Tuesday.

The Justices appeared skeptical of the core argument from IEPHWC lawyer J. David Nick: that cities and counties can't ban what state law allows.

Conversely, Riverside's argument boiled down to the idea that nowhere in the law does it explicitly say cities can't ban clubs.

During Nick's opening comments, Justice Kennard clipped him and asked him to get to the point. Nick pointed to the part of state law he believes prevents dispensary bans.

Associate Justice Goodwin Liu said, "the language doesn't get you very far."

Associate Justice Ming Chin told Nick, "The legislature knows how to say 'Thou shalt not ban.'"

Chief Justice Tani Cantil-Sakauye said the core issue is a city's land-use authority, which gives it sweeping powers.

"We are to read between the lines for something not expressly stated? That somehow municipalities' traditional police power has been impacted or severely restrained by [medical marijuana law] and later Amendments?"

Medical marijuana

Nick said land-use powers do not equal 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 city limits, he wrote in his brief. Nick got some traction on that fact.

During Riverside's response, Irvine attorney Jeffrey Dunn — from Best, Best, and Krieger, a law firm that specializes in helping cities set up and litigate pot club bans — argued that state laws regarding the power to "regulate" dispensaries can mean "ban them entirely."

Justice Kennard said, "I think your definition of the term 'regulate' is debatable."

Associate Justice Goodwin Liu also dug into the Legislature's calls to promote "uniform" medical marijuana policy across the state.

"If some counties ban and some don't, how is that uniform?" Liu asked.

Dunn said dispensaries aren't the sole form of obtaining marijuana. Cancer patients can grow it, or hire someone to grow it for them.

Overall, the Justices seemed to spend more time shooting down Nick's arguments than picking apart Dunn's.

And nowhere in the discussion was it made clear that tens of thousands of people with cancer, AIDS, and chronic pain cannot get a state-legal drug because they're in a city than bans pot pharmacies. The idea that someone with breast cancer can spend ninety days farming pot in the middle of chemotherapy treatment, or hire a full-time farmer "caregiver" is ludicrous. Imagine if cancer patients had to farm their chemo drugs, or find a drug company and pay them directly to synthesize small amounts of it for them.

David Nick misquoted case precedent, as well as repeated himself. Overall, he was zealous but legally unimpressive.

By contrast, the hired gun Dunn corrected Nick's misquotes of case precedent, and seemed very, very comfortable and well-prepared.

Last June, one of the best marijuana attorneys in the country, Joe Elford, chief counsel for Americans for Safe Access, told us that the California Supreme Court leans federalist: They support local control. Indeed, Justice Liu used the word "local federalism" during arguments Tuesday.

Back then, Elford predicted the Supreme Court would rule that dispensaries are lawful, but cities can choose to ban them. The first part has already come true in the Jackson verdict.

Thus, if you have cancer in Palo Alto, Walnut Creek, Albany, or any of the hundreds of other cities with dispensary bans, we recommend researching some good medical marijuana delivery services on

There are hundreds running across the state, and they flourish in cities that ban dispensaries because they're much lower-profile and much harder to shut down.

And they may be the future of medical marijuana in battleground cities and counties.

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