Tuesday, May 7, 2013
High Court Says Cities Can Ban Medical Marijuana Dispensaries
From Staff and Wire Service Reports
California cities may ban medical marijuana dispensaries from operating within municipal boundaries, the state Supreme Court ruled yesterday.
Justice Marvin Baxter, writing for a unanimous court, said that neither the 1996 initiative that allows the use of marijuana on a doctor’s written recommendation—known as Proposition 215 or the Compassionate Use Act—nor follow-up legislation enacted eight years later preempts local land use laws.
“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,” Baxter wrote.
The high court upheld an injunction issued by a Riverside Superior Court judge three years ago, closing Inland Empire Patient’s Health and Wellness Center, which opened in 2009, as a public nuisance. The center described itself as a nonprofit organization of patients who collectively cultivate marijuana and distribute it to each other.
Nuisance Per Se
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. The latter provision, Molloy said, applied because the federal Controlled Substances Act has no medical-use exception to its prohibition on the use of marijuana.
The Fourth District Court of Appeal, Div. Two, affirmed the injunction, and Baxter said the lower courts were correct.
Proposition 215 and the Medical Marijuana Program statute, Baxter said, grant and implement a limited criminal immunity for use, cultivation, and possession of marijuana for medical purposes, subject to limitations.
“The CUA and the MMP ‘decriminalize,’ for state purposes, specified activities pertaining to medical marijuana, and also provide that the state’s antidrug nuisance statute cannot be used to abate or enjoin these activities,” Baxter explained. “On the other hand, the Riverside ordinance finds, for local purposes, that the use of property for certain of those activities does constitutes a local nuisance.”
No Express Preemption
The Legislature, he noted, has, in other instances, passed laws that expressly prohibit or limit the use of local zoning laws or permit denials to keep out facilities the Legislature seeks to protect, such as mental health centers. But nothing in the state’s medical marijuana legislation expresses any similar preemption, he pointed out.
“More fundamentally, we have made clear that a state law does not ‘authorize’ activities, to the exclusion of local bans, simply by exempting those activities from otherwise applicable state prohibitions,” the justice wrote. He cited Nordyke v. King (2002) 27 Cal.4th 875, holding that state law allowing gun shows on public property did not preempt a local ordinance that essentially banned them.
Of the 18 states that allow the medical use of marijuana, California is the only one where residents can obtain a doctor’s recommendation to consume it for any ailment the physician sees fit as opposed to for only conditions such as AIDS and glaucoma. The state also is alone in not having a system for regulating growers and sellers.
“The irony in California is that we regulate everything that consumers purchase and consume, and somehow this has been allowed to be a complete free-for-all,” said Jeffrey Dunn, the lawyer who represented Riverside in the successful defense of its ban. “Cities and counties looked at this and said, ‘Wait a minute. We can’t expose the public to these kind of risks,’ and the court recognized that when it comes to public safety, we have independent authority.”
Lack of Oversight
Marijuana advocates had argued that allowing local governments to bar dispensaries thwarts the intent of the medical marijuana law that voter’s passed nearly 17 years ago. Yesterday, they blamed the absence of state oversight and the failure of local authorities to adopt operating guidelines that fall short of banning dispensaries for the court’s decision.
“Today’s decision allowing localities to ban will likely lead to reduced patient access in California unless the state finally steps up to provide regulatory oversight and guidance,” said Tamar Todd, senior staff attorney for the Drug Policy Alliance. “Localities will stop enacting bans once the state has stepped up and assumed its responsibility to regulate.”
Two bills are pending in the California Legislature that seek to establish a new statewide system for regulating and licensing the medical marijuana industry, and to clarify the role of dispensaries in it. Advocates hope to see language that would make it harder for local governments to outlaw dispensaries by requiring voter approval for any bans, Drug Policy Alliance Policy Manager Amanda Reiman said.
Activists also are in the early stages of planning a ballot initiative that would legalize the recreational use of marijuana and regulate it like alcohol, as voters in Washington and Colorado did last year.
Although California is believed by advocates and law enforcement agencies to have had thousands of dispensaries, it has seen a significant drop as communities and federal authorities have cracked down. However, counting with any precision is impossible because record-keeping varies from community to community, many dispensaries do not advertise, and no overall state total is kept.
Marijuana remains illegal under federal law, and the U.S. attorneys have threatened to seize the property of landlords who lease space to the shops. Hundreds of dispensary operators have since been evicted or closed voluntarily.
Voters in the City of Los Angeles will determine the future of medical marijuana dispensaries there when they vote on three alternative ballot measures two weeks from today. All three measures would allow the clinics to operate, subject to regulation by the city, but they vary in such particulars as how many clinics would be allowed and how much they would be taxed.
The case is City of Riverside v. Inland Empire Patients Health And Wellness Center, Inc., 13 S.O.S. 2314.
Copyright 2013, Metropolitan News Company