Thursday, November 10, 2011
Court Upholds City Ban on Medical Marijuana Dispensaries
By KENNETH OFGANG, Staff Writer
Riverside’s ordinance banning medical marijuana dispensaries from operating anywhere in the city is not preempted by state law, the Fourth District Court of Appeal ruled yesterday.
Div. Two affirmed a Riverside Superior Court preliminary injunction issued in November of last year, closing Inland Empire Patient’s Health and Wellness Center, which opened in 2009, as a public nuisance. Inland Empire describes itself as a nonprofit organization of patients who collectively cultivate marijuana and distribute it to each other.
Judge John D. Molloy said the center was a nuisance per se because it was operating in violation of a code provision declaring distribution of medical marijuana to be a “prohibited use,” as well as a provision banning any use of property that is prohibited by state or federal law.
Justice Carol Codrington said there was nothing in Proposition 215, also known as the Compassionate Use Act of 1996, or in the Medical Marijuana Program enacted by the Legislature, that expressly or implicitly bars a city from banning the distribution of medical marijuana from business sites within the municipality.
Proposition 215, the justice elaborated, is a narrow statute that grants a limited criminal immunity for use, cultivation, and possession of marijuana for medical purposes, subject to the limitations in the law. It “does not create a constitutional right to obtain marijuana, or allow the sale or nonprofit distribution of marijuana” through clinics, dispensaries, or cooperatives like Inland Empire, the jurist said, nor does it immunize those facilities against local zoning or business licensing laws.
Codrington also rejected the center’s claim that the ban violates the Medical Marijuana Program. While that law implements Proposition 215, she emphasized, it expressly declares that a place at which controlled substances are unlawfully kept is subject to nuisance abatement, while providing that patients and designated caregivers who associate for the purpose of cultivating medical marijuana “shall not solely on the basis of that fact be subject to state criminal sanctions.’
In this case, she said, the center was not being prosecuted “solely on the basis” tat it used the premises for distributing medical marijuana, but because it violated the zoning ordinance. While “lawful” dispensaries are protected, the justice reasoned, the local government remains free to declare dispensaries unlawful in part or all of the city.
The jurist cited City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, in which Div. Two of this district’s Court of Appeal upheld the use of local zoning to keep medical marijuana dispensaries out of a city.
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