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The following article was posted on February 6th, 2013, in the New Times - Volume 27, Issue 28 [ Submit a Story ]
The following articles were printed from New Times [newtimesslo.com] - Volume 27, Issue 28

Dispensary bans under review

BY PATRICK M. KLEMZ

The California Supreme Court heard oral arguments Feb. 5 in the first in a series of upcoming cases challenging medical marijuana dispensary bans by local governments around the state. Five San Luis Obispo County cities use their zoning code to forbid the establishment of brick-and-mortar dispensaries. On Oct. 9, 2012, Arroyo Grande joined Atascadero in also banning mobile medical marijuana dispensaries.

The current case involves the city of Riverside, which obtained a trial court injunction forcing Inland Empire Patients Health and Wellness Center to close its doors while litigation over the ban pushes forward. Inland Empire argues that an outright zoning ban on dispensaries implicitly conflicts with the various acts that legalize medical marijuana in California.

Dispensary attorney J. David Nick faced piercing scrutiny from a few skeptical justices, who struggled to see why the court should read a prohibition on local bans into state law.

“The Legislature knows how to say, ‘Thou shalt not ban dispensaries,’” Associate Justice Ming Chin remarked during oral argument. “They didn’t say that.”

Inland Empire’s appeal hangs on a provision in the 1996 Compassionate Use Act that immunizes medical marijuana caregivers and patients from state prosecution. Nick vigorously tried to convince the court that allowing cities to ban dispensaries completely would undermine the intent of legislators who wrote the bill and voters who approved it. The dispensary must overcome a presumption of validity shielding local zoning ordinances, a power granted to cities by the state constitution.

“We’re here because that presumption has been washed away [by the Compassionate Use Act],” Nick said.

In response, Riverside attorney Jeff Dunn pointed out that state medical marijuana laws expressly allow cities to regulate the “location” and “establishment” of dispensaries. He argued that the court should interpret this power to regulate to include the power to prohibit.

“What we see is efforts to take the immunities from state criminal prosecution and expand them in ways that the voters did not intend,” Dunn said.

Later this year, the court will hear the appeal of another dispensary closed by a state court after the judge opted to enforce a different municipal dispensary ban. Legal analysts regard the Riverside case as the less important of the two appeals because it deals with a preliminary injunction. For that reason, the judgment in the case won’t directly affect dispensary bans other than Riverside’s.

However, the judicial procedure for reviewing an injunction requires the court to analyze the likelihood of success of the party requesting relief. The outcome of the Riverside case may indicate where the justices intend to rule when the time comes to decide on the legality of the bans.

The Supreme Court will likely issue a ruling on the Riverside injunction in the next few months.