Pubdate: Tue, 28 Feb 2012
Source: Record Searchlight (Redding, CA)
Copyright: 2012 Record Searchlight
Author: Sean Longoria


Decision Likely to Be Appealed

Shasta County Superior Court Judge Stephen Baker said Monday he'll
issue a ruling within two weeks on Redding's request for a court order
to shut down some 10 medical marijuana dispensaries that haven't
complied with the city's recent ban on the businesses.

In the meantime, at least seven dispensaries will remain open and the
case is likely to be appealed by either side, an attorney for the
dispensaries said.

Baker heard arguments Monday on Redding's request for a preliminary
injunction - a court order for the dispensaries to comply with the

The City Council passed the ban in November, and it took effect in
December. That council decision prompted a pair of lawsuits filed on
behalf of some of the city's dispensaries.

At stake in the case is whether the dispensaries can remain open or
the city's ban will stand with court backing. Dispensary owners and
operators claim the ban will eliminate safe access for hundreds of
medical marijuana patients.

"This case is not about whether marijuana should be or should not be
legal," Baker said. "It's essentially a land-use case."

Redlands attorney James DeAguilera said he believes the operating
permits issued to 16 dispensaries in the city are still valid despite
the ban.

Redding issued permits for dispensaries for two years before enacting
the ban, which was based on an appellate court ruling that a
permitting system for dispensaries in Long Beach went far beyond
Proposition 215 and conflicted with federal law.

Redding's ban is now in question, because that appellate court ruling
has since been de-published as the California Supreme Court has
decided to hear the Long Beach case, DeAguilera said.

Lower-court decisions automatically are de-published when the Supreme
Court hears a case unless justices decide otherwise, according to the
office of the clerk for the Supreme Court.

"It's all very, very muddy water," said DeAguilera, who's representing
Cannabis Club, on Westside Road; California Patient Collective, on
Churn Creek Road; Nature's Nexus, on Hartnell Avenue; Planet Herb, on
Hilltop Drive; and Family Tree Care Center, on Bechelli Lane.

Permitting dispensaries may still be illegal under federal law - which
considers all marijuana illegal - even though the ruling in the Long
Beach case was de-published, Assistant City Attorney Barry De Walt

"We want to wait until the Supreme Court acts," De Walt

Neither Proposition 215 nor the Medical Marijuana Program - commonly
known as SB 420 - requires cities to permit dispensaries, De Walt said.

"There's no state obligation to the city to adopt ordinances to
facilitate" dispensaries, he said.

A new state law that went into effect Jan. 1 allows Redding to
regulate the location, operation and establishment of dispensaries,
giving the city purview on whether to allow the storefronts, De Walt

"There is clear authority for the city to do what it's done despite
(the Long Beach case) being de-published," he said.

Attorney Alec Henderson - who's representing Trusted Friends on Pine
Street and Herbs and Edibles on Lake Boulevard - disagreed. He said
nothing in state law allows cities to ban dispensaries.

"The basis of this was the fear instilled by the city attorney into
the City Council that they'd be arrested," Henderson said.

Redding still allows patients to collectively grow medical marijuana
in groups of nine or less, though Henderson said the city's limit is
both "arbitrary and capricious."

Baker said he'll issue a ruling by March 12 if not well before then.
DeAguilera said he'll appeal Baker's ruling should the judge rule in
favor of the city. He expects Redding will do the same if Baker rules
the other way.

De Walt has said the City Council would have to approve his office
filing an appeal on the city's behalf.
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