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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Justice Thomas Hollenhorst authored the court's unpublished opinion, in which Presiding Justice Manuel Ramirez concurred.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.