Pubdate: Wed, 06 Feb 2013
Source: San Francisco Chronicle (CA)
Copyright: 2013 Hearst Communications Inc.
Contact: http://www.sfgate.com/chronicle/submissions/#1
Website: http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko

LIMITS ON POT LIKELY TO STAND

Justices Seem To Side With Cities On Dispensary Bans

The California Supreme Court left little doubt Tuesday that it would
uphold the authority of local governments, including more than two
dozen in the Bay Area, to ban medical marijuana dispensaries within
their borders.

At a one-hour hearing at the University of San Francisco, a lawyer for
a pot supplier in Riverside - one of about 200 cities and counties in
the state that have outlawed dispensaries - argued that such
ordinances conflict with state laws that allow medical use of marijuana.

Local government authority to regulate land use has never extended to
"totally banning activity which is lawful under state law," attorney
J. David Nick told the court. He said a dispensary ban frustrates the
goal of a 1996 medical marijuana initiative and 2003 legislation "to
make this available throughout the state."

But Justice Goodwin Liu said the state laws appeared to be designed to
protect medical marijuana patients from criminal prosecution without
restricting local authority to decide whether to probit dispensaries
within city or county borders. Justice Carol Corrigan said the
marijuana laws do not limit local governments' powers, under zoning
laws, "to control what happens in their own community."

When Nick insisted that the 2003 law authorizing medical marijuana
dispensaries implicitly barred citywide prohibitions, Justice Marvin
Baxter asked, "If the Legislature wanted to prevent localities from
banning dispensaries, why didn't it say so expressly?"

The only sign of disagreement came from Justice Kathryn Mickle
Werdegar, who said the 1996 initiative - formally titled the
Compassionate Use Act - and the follow-up 2003 legislation were
intended to "make this substance available, compassionately."

Riverside's lawyer Joseph Dunn noted that the 2003 law authorized
local governments to "regulate" pot dispensaries, and said the term
should be interpreted to include prohibition. Werdegar called his
definition "debatable."

A ruling is due within 90 days.

The dispute arises from the 1996 initiative, the first in any state to
legalize medical marijuana, and its failure to spell out how the drug
should be distributed. The 2003 legislation authorized patients to
form cooperatives or collectives to grow marijuana, but did not define
the limits of local regulation.

The federal government has fought the medical marijuana law since
voters approved it. Federal prosecutors under the Obama administration
have shut down hundreds of dispensaries by threatening to confiscate
their landlords' property.

In the Bay Area, San Francisco, Oakland and San Jose, among others,
authorize and regulate marijuana dispensaries.

Among the cities that ban them, according to the medical marijuana
advocacy group Americans for Safe Access, are Alameda, Colma, Concord,
El Cerrito, Emeryville, Fremont, Hayward, Los Gatos, Millbrae, Newark,
Pittsburg, Redwood City, San Bruno, San Rafael, South San Francisco,
Sunnyvale and Union City.

The case is Riverside vs. Inland Empire Patients Health and Wellness
Center, S198638. 
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