Marijuana Dispensary Bans By Cities Legit? Calif. Supreme Court Leans That Way

By Dennis Romero Tue., Feb. 5 2013 at 3:14 PM

Chuck Coker

If today's oral arguments were any sign, it's not looking like the California Supreme Court will take away cities' right to ban medical marijuana dispensaries.

As oral arguments were heard in the potentially landmark City of Riverside v. Inland Empire Patient's Health and Wellness Center case today, the court noted that the legislature never expressly told municipalities they couldn't outlaw pot shops.

Justice Ming W. Chin said:

The Legislature knows how to say 'Thou Shall Not Ban Dispensaries,' They didn't say that.

Cue ominous clouds. The decision is not due for 90 days, though nothing says the court can't weigh in earlier than that.

Joan Smyth is a former city prosecutor and L.A.-based litigation attorney at Kaufman Dolowich Voluck & Gonzo, seems to agree that the court is leaning toward letting cities outlaw weed retailers.

She told us:

@That_Dude69

From the questioning by the Justices this morning, it appears that the Supreme Court will have a difficult time overturning the traditional, pre-existing land use authority of the cities. The Chief Justice stated that the core issues of the case pertain to land use regulation, zoning, and authority for land use purposes, and she questioned whether the statute should be read such that the traditional police powers should be constrained by the Compassionate Use Act and the Medical Marijuana Program Act ...

The court seemed to distinguish between cultivating pot for the medically ill and selling it. Joyce L. Kennard's questioning, Smyth said, ...

... seemed to imply that cities would still be governed by the CUA's decriminalization of medical marijuana that was cultivated or produced in a cooperative, rather than distributed through a store-front dispensary.

This goes back to the old debate about whether the sale of marijuana was intended by the state's medical marijuana laws. If not, maybe cities can ban dispensaries.

Smyth:

Justice Kennard raised the point that to uphold a city's ban on dispensaries does not necessarily impact the cultivation of medical marijuana.

Sorry for the bad news.

[@dennisjromero / djromero@laweekly.com / @LAWeeklyNews]

Tags:

ban, California Supreme Court, dispensaries, marijuana

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john.schwada

The glaring leadership failures of the state legislature were pointed out by the Supreme Court justices in this week's hearing on medical marijuana (MMJ). Thanks to termed-out state Assemblyman Mike Feuer and his Sacramento buddies a loophole exists in state MMJ laws that will hurt, not help, legitimate patients from getting access to MMJ - a loophole that puts the lie to Feuer's alleged empathy for those patients.

It's not the first time the legislature's miserable record on MMJ has been called out.

Atty. Gen. Kamala Harris in December sharply criticized the state legislature for the legal confusion surrounding medical marijuana (MMJ). Harris sat the lawmakers in a corner, put a dunce capon their heads and told them it was time for them to produce “real solutions, not half-measures” to the crazy ambiguities in state law. The LA City Council last September also practically begged the state legislature to fix the conflicts in the state’s MMJ laws. These appeals have been greeted with stony silence from a do-nothing and dysfunctional legislature. (See Harris’ letter – Pdf Letter 1; see City Council resolution)

Feuer, now running for LA city attorney, was in the state legislature over the past six years, when the medical marijuana situation reached crisis levels and leadership was needed to clarify the law.

But Feuer was AWOL when real, practical solutions were needed. We never heard a peep out of Feuer about solving this problem – happening in his backyard, on his watch. Not a peep.

The leadership failings of Feuer were further underscored by the California Supreme Court justices this week during a hearing on a lawsuit testing the notion that cities could ban MMJ dispensaries – whether operating legitimately or not.

The justices this week pointed out that state lawmakers had left a giant loophole in the law.

That loophole appears to permit jurisdictions to enact flat-out bans, within their borders. Such bans will hurt, not help, real patients from getting access to marijuana for medicinal purposes. Such bans will create virtual MMJ tourist destinations, like LA, where MMJ is available.

The LA City Council, with help from current City Attorney Carmen Trutanich, has been trying to responsibly deal with MMJ despite the bad hand that was dealt to LA by Mike Feuer and his careless, irresponsible, problem-dodging Sacramento buddies. Now it looks like LA’s “reward” for trying to find a balanced ordinance may be that all the problems associated with MMJ dispensaries could fall on LA’s shoulders when our neighboring cities get their bans okayed by the court. And from the news accounts it looks like that that’s where the court is going.

When that day arrives, we can all say: Thanks a lot state legislature. Thanks a lot Mike Feuer. Thanks for screwing up again.

When Trutanich took office he faced a problem of runaway medical marijuana dispensaries. One on every corner. More than Starbucks. Within six months Trutanich wrote and the council approved a MMJ ordinance.

That 2010 ordinance looks very much like the current Koretz-Wesson measure.

That 2010 ordinance was declared constitutional by a state Appeals Court last July. Trutanich’s office made those winning arguments. That law – as does the Koretz-Wesson measure – also contains a provision devised by Trutanich that requires that all MMJ sold in Los Angeles be safety-tested for contaminants in state-certified labs.

Koretz-Wesson supports the sale of marijuana for medical purposes. It does not support its sale for recreational purposes. The only way for LA to move in the direction of “better” MMJ rules – maybe not perfect ones – is for the state legislature to clear up the gross ambiguities in the state’s MMJ laws and expressly permit the sale of MMJ for the purpose of medical treatment only. That would give the locals and the courts some clarity.

Unfortunately, Mike Feuer and his Sacramento buddies failed miserably when it came to providng leadership on this matter. If you think they actually did a good job, ask state Atty. Gen. Kamala Harris what she thinks. Be ready for an earful.

John Schwada - director of communcations, Trutanich for City Atty. 2013.

muzzylu

Medical marijuana should be available to all counties and cities in California! Marijuana works very well for pain management. Unless someone has tried cannabis for pain, they should not venture the opinion that it doesn't work for medical purposes. Pain management with cannabis requires the right dosage. Using marijuana edibles is the right way to maintain pain reduction. This book has great recipes for edible marijuana that are easy, small and cheap to make: MARIJUANA - Guide to Buying, Growing, Harvesting, and Making Medical Marijuana Oil and Delicious Candies to Treat Pain and Ailments by Mary Bendis, Second Edition. Only 2.99. Learn to make marijuana oil, delicious Cannabis Chocolates, and tasty Dragon Teeth Mints.