Pubdate: Wed, 10 Oct 2012
Source: Metropolitan News-Enterprise (Los Angeles, CA)
Copyright: 2012 Metropolitan News Company
Contact: http://www.metnews.com/lettertoeditor.htm
Website: http://www.metnews.com/
Details: http://www.mapinc.org/media/3326
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PANEL UPHOLDS TEMECULA'S MEDICAL MARIJUANA BAN

The Fourth District Court of Appeal yesterday upheld Temecula's 
ordinance banning medical marijuana dispensaries from operating 
within the city.

The panel ruled, 2-1, that the city may use its zoning powers to 
absolutely ban the dispensing of the drug, and that such regulation 
is not preempted by Proposition 215, the statewide initiative 
permitting the use of marijuana upon a doctor's recommendation, or 
the Medical Marijuana Program Act that regulates the distribution of 
the drug for medical purposes.

Justice Thomas Hollenhorst authored the court's unpublished opinion, 
in which Presiding Justice Manuel Ramirez concurred. Justice Jeffrey 
King dissented, arguing that the absolute ban exceeds the city's powers.

The issue of how far cities may go in regulating medical marijuana 
has been a subject of debate ever since the initiative, also known as 
the Compassionate Use Act, was approved by voters in 1996.

The California Supreme Court has agreed to decide several cases on 
the subject. The lead cases have now been fully briefed but not set 
for oral argument, while others, including one from Los Angeles, are 
on hold until the lead cases are decided.

The City of Temecula sued to declare a clinic operated by Cooperative 
Patients Services, Inc. a public nuisance. It alleged in its 
complaint that the clinic's business license, which expired in 
January of last year, expressly prohibited it from dispensing 
marijuana from its premises, in accord with the ordinance.

Riverside Superior Court Judge Craig Riemer enjoined the defendants 
from dispensing marijuana and from operating without a permit.

Hollenhorst, in concluding that the trial judge was correct, explained:

"We reject the proposition that local governments, such as Temecula, 
are preempted by the CUA and MMPA from enacting zoning ordinances 
banning medical marijuana dispensaries. Temecula's zoning ordinance 
does not duplicate, contradict, or enter an area fully occupied by 
state law legalizing medical marijuana and medical marijuana dispensaries."

Rejecting the argument that the city's ban conflicts with a section 
of the MMPA that grants qualified medical marijuana patients and 
their caregivers immunity from "state criminal sanctions," 
Hollenhorst noted that there are no such sanctions in the public 
nuisance abatement law.

Nor, he wrote, is the ban preempted by a section of the MMPA which 
prohibits application of the nuisance law "solely on the basis" that 
the premises are being used to dispense medical marijuana. The 
section does not preclude a city from enforcing its zoning 
regulations and prosecuting violations of those rules through 
nuisance actions seeking injunctive relief, he said.

King argued in dissent:

"I would conclude that while a municipality may restrict and regulate 
the location and establishment of a medical marijuana dispensary, it 
may not totally ban or prohibit the dispensary's presence based 
solely on its status as a dispensary."

The case is City of Temecula v. Cooperative Patients Services, Inc., E053310.
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