Pubdate: Wed, 06 Feb 2013
Source: San Gabriel Valley Tribune (CA)
Copyright: 2013 San Gabriel Valley Tribune
Contact: http://www.sgvtribune.com/writealetter
Website: http://www.sgvtribune.com/
Details: http://www.mapinc.org/media/3725
Authors: Eric Bradley, Rick Orlov and Sandra Emerso

MEDICAL MARIJUANA LAWS STILL HAZY 16 YEARS AFTER LEGALIZATION

California cities have tried regulating medical marijuana. Some have 
attempted to profit from it. And many, faced with a proliferation of 
storefront collectives they cannot control, have turned to banning it entirely.

On Tuesday, members of California's highest court expressed 
skepticism over claims that the state's medical marijuana laws 
prohibit local governments from banning storefront pot shops.

During oral arguments in a challenge to the city of Riverside's ban 
on medical marijuana dispensaries, several justices of the California 
Supreme Court said they were bothered by the fact that neither a 1996 
voter-approved initiative that legalized marijuana use for health 
purposes nor companion laws the Legislature adopted in 2003 expressly 
state that cities and counties must accommodate retail marijuana stores.

Justice Joyce Kennard said that just because the laws allow eligible 
residents to use marijuana without fear of criminal prosecution, they 
did not necessarily take priority over the authority the California 
Constitution grants local governments to control local land use and 
zoning decisions.

"The relevant issue before the court is to note the city's regulatory 
authority over land use ... and that power does not derive from the 
medical marijuana program. It's a pre-existing power," Kennard said.

But J. David Nick, a lawyer representing a dispensary Riverside 
officials have sought to close, told the court that lawmakers clearly 
intended to make marijuana easily and uniformly available for 
eligible residents statewide, a goal that dispensary bans thwart.

"The word 'regulation' does not, in any way, signal prohibition," Nick said.

The Supreme Court has 90 days to issue its decision in the case, 
which will decide the fate of pot shop bans already adopted by about 
200 cities and counties. Additional jurisdictions put on hold their 
consideration of either operating rules for pot shops or outright 
dispensary bans pending the court's ruling.

State of confusion

While they await an outcome, public officials and medical cannabis 
advocates can agree on one thing: California's medical marijuana law 
is almost as ambiguous now as when voters passed it as Proposition 215 in 1996.

Dale Gieringer, the director of California NORML, a nonprofit 
dedicated to establishing the right for adults to use cannabis 
legally, called the current medical marijuana law "chaotic and vague."

"The real issue is the circumstances in which it's legal to 
distribute and sell cannabis in California are not spelled out 
clearly," Gieringer said.

The confusion has led more than 175 cities and 20 counties in 
California to ban retail pot shops, according to the medical 
marijuana advocacy group Americans for Safe Access.

Most bans use zoning codes to bar marijuana collectives from operating.

Unlike federal law, state law does not always pre-empt local 
ordinances, and cities are granted the right of home rule to govern 
areas such as zoning, said Loyola Law School professor Karl Manheim.

But he said zoning-based marijuana bans might have a difficult time 
withstanding scrutiny from Supreme Court justices because Proposition 
215 and Senate Bill 420, passed in 2003, clearly permit medical 
marijuana, even if the laws do not exactly outline the process.

"For them to say you can't have it anywhere in town, that seems to be 
an effort to nullify state law," Manheim said.

Unless the case considers the federal prohibition on marijuana, 
California law intends that sick persons have access to marijuana, so 
the question becomes whether cities are acting against the intent of 
the state's medical cannabis statutes.

"I think a strong argument can be made that it does frustrate that 
purpose," he said.

A Los Angeles County ban on all dispensaries in unincorporated areas 
was struck down last July for that reason, with an appeals court 
saying the state's medical marijuana laws authorize cooperatives and 
collectives to grow, store and distribute cannabis, contrary to the 
the ban passed in 2010.

"The phrase 'regulate the location, operation, or establishment' does 
not mean ban, prohibit, forbid, or prevent all medical marijuana 
collectives and cooperatives from operating within the entire 
jurisdiction 'solely on the basis' that they engage in medical 
marijuana activities," Judge Robert Mallano wrote.

Many of the local bans were enacted after the number of retail 
medical marijuana outlets boomed in Southern California following a 
memo from the U.S. Justice Department, stating that prosecuting pot 
sales would be a low priority.

The rush to adopt bans has abated over the last 18 months, since the 
four federal prosecutors in California launched a coordinated 
crackdown on dispensaries by threatening to seize the properties of 
landlords that leased space to them. Hundreds of pot shops have since 
been evicted or closed voluntarily.

Although some medical marijuana advocates had hoped the state court's 
seven justices also would determine whether pot's federal status as 
an illegal drug prohibits local governments from explicitly 
authorizing its distribution at all, as about 50 California counties 
and cities have, the court Tuesday deliberately shied away from any 
discussion of federal versus state law.

Seeking control

The experiences of Los Angeles County's second-largest city, Long 
Beach, show the challenges faced by cities that try to establish 
cannabis access for medically authorized patients.

Long Beach banned medical marijuana collectives of more than three 
people in February last year only after trying and failing to control 
how many collectives could be operated within its borders.

The Long Beach City Council passed an ordinance in 2010 that required 
collectives to participate in a lottery for a limited number of 
permits and pay a nonrefundable application fee. The city also 
imposed an annual permit fee starting at $10,000 that increased 
depending on the size of the marijuana-growing collective.

"The political sense in the council was they didn't want to ban it, 
but they did want to regulate," said City Attorney Robert Shannon, 
who drafted the law.

The ordinance was short-lived. Two medical marijuana patients sued 
the city, arguing that the permit process forced participants to 
violate federal law prohibiting the sale and distribution of 
marijuana. Appellate judges agreed and struck down the regulations in 
October 2011, leading the city to adopt an all-out ban.

Though Long Beach's ban doesn't prohibit medical marijuana entirely, 
advocates say the small collectives now allowed are not realistic for 
sick patients who are unable to invest the capital and labor required 
to grow cannabis. Officials with the city said they are closely 
watching the Riverside case to determine the extent of their power to 
control the medical marijuana industry.

The city of Los Angeles has also struggled to adopt its own 
regulations that would guarantee access to medical marijuana while 
protecting neighborhoods from the problems that may come along with pot shops.

The uncertainty associated with current interpretations of the law 
has left Los Angeles without any regulations and as many as 800 to 
1,000 marijuana dispensaries operating in the city.

The unchecked growth of pot shops became such a problem that the Los 
Angeles City Council tried to impose an outright ban on all the 
dispensaries. But medical marijuana supporters quickly collected 
enough signatures for a referendum to overturn the ban, so the 
council members rescinded it.

Now, voters in Los Angeles face three measures on the May 21 ballot, 
all proposing different schemes for regulating medical marijuana 
dispensaries - two drafted by advocates and one a compromise pushed 
by a councilman.

Councilman Paul Koretz, who worked on the compromise proposal, spoke 
for many politicians across the state when he said it has been 
difficult for lawmakers to develop a policy amid conflicting court rulings.

"It certainly has been frustrating to local officials and all 
policymakers, not to know what the options are, but what's most 
frustrating is that communities and patients have been left 
unprotected as the courts have failed to act or give clarity," Koretz said.

The Associated Press contributed to this report.

[sidebar]

By the numbers

$35 billion Estimated value of the U.S. annual marijuana harvest

$13.8 billion California's share of that total

$50,000-$100,000 Cost of equipment needed for a full-size grow house

2.2 million Amount, in pounds, of U.S. marijuana production in 1981

22 million Amount, in pounds, of U.S. marijuana production in 2006

100 Estimated number of grow houses busted in 2007 in San Bernardino, 
Riverside, Los Angeles and Orange counties

1,675,681 Marijuana plants eradicated statewide by Campaign Against 
Marijuana Planting in 2006

1,000 Plants a typical grow house can hold

500 Total amount of pot, in pounds, that those plants can produce per harvest

3-6 Average number of times an indoor marijuana plant potentially can 
be harvested each year

$4.5-$10 million Amount in sales that a single grow house can 
generate in a year

Marijuana's Fiery History

The City of Riverside v. Inland Empire Patient s Health and Wellness 
Center begins this week at the University of San Francisco School of 
Law over the city s legal authority to ban the dispensaries, which 
was upheld by an appeals court last year.

Federal appeals court on Jan. 22 rejected a petition from groups such 
as Americans for Safe Access to reclassify marijuana from current 
federal status as a dangerous drug with no accepted medical use

In November, Colorado and Washington legalize marijuana for recreational use

G3 Holistic president Aaron Sandusky found guilty Oct. 12 in federal 
court in Los Angeles of operating medical marijuana dispensaries in 
Upland, Colton and Moreno Valley. He was sentenced to 10 years in prison.

The city of Long Beach votes to ban medical marijuana in August after 
a federal appeal court in 2011 ruled that Long Beach couldn t 
regulate medical marijuana dispensaries, as many other cities have 
attempted to do. Justices said the rules violated federal law. Long 
Beach then appealed to the state Supreme Court for clarification on 
its powers to regulate medical marijuana, but later banned 
collectives of more than three people.

City of Oakland files a federal lawsuit in San Francisco in October 
that seeks to prevent the U.S. Department of Justice from using its 
property seizure powers to get Harborside Health Center (a marijuana 
dispensary) evicted.

The Los Angeles City Council had voted to ban dispensaries but 
reverses its decision two months later after medical marijuana 
advocates collected enough signatures to put a referendum on the 
ballot to overturn the prohibition.

An appeals court in July strikes down Los Angeles County s ban on all 
dispensaries in unincorporated areas. Justices said that the state s 
medical marijuana laws authorize cooperatives and collectives to 
grow, store and distribute cannabis, contrary to the county s ban 
passed in 2010.

San Bernardino County approves ordinance that bans medical-marijuana 
dispensaries in unincorporated areas and limits cultivation of 
marijuana by valid patients to indoors only; Delaware legislature 
passed medical cannabis legislation; Connecticut legislature passed 
cannabis decriminalization legislation.

In California, voters defeat (53 percent to 47 percent) an initiative 
for cannabis legalization; Arizona voters approve medical cannabis 
initiative for the third time since 1996; District of Columbia City 
Council passes medical marijuana legislation; New Jersey legislature 
passes medical cannabis legislation.

Michigan voters approve medical cannabis initiative.

New Mexico legislature passes medical cannabis legislation.

Rhode Island legislature passes medical cannabis legislation.

The California state Assembly passes SB 420, requiring ID cards for 
medical marijuana users; Montana voters approve a medical cannabis 
initiative; Vermont s legislature passes medical cannabis legislation.

Nevada and Colorado voters approve medical cannabis initiatives. 
Hawaii legislature passes medical cannabis legislation.

Maine voters approve a medical cannabis initiative.

Alaska, Oregon, Washington and Arizona pass medical cannabis laws and 
patient protections. A legislative effort in Oregon is successfully 
made to place a cannabis re-criminalization initiative on the ballot, 
which fails, as Oregonians prove they really like their so-called 
cannabis de-crim laws.

California passes Proposition 215, the medical marijuana law and 
first in the nation. Since then 17 other states and the district of 
Columbia have followed.

San Francisco becomes first city to pass ordinance with 79 percent 
support in favor of medical patients having access to cannabis

Up in Smoke, featuring Cheech Marin and Tommy Chong, is released and 
prominently features marijuana use.

President Richard Nixon appoints commission to study marijuana. 
Commission said marijuana should be regulated and decriminalized and 
Nixon rejected the findings.

National Organization for the Reform of Marijuana Laws (NORML) 
founded in Washington, D.C.; in the same year the Controlled 
Substances Act becomes law and sets up scheduling system for illicit 
and licit substances, classifying cannabis as a schedule I controlled 
substance.

Congress bans marijuana with the Marihuana Tax Act of 1937.

Congress passes the Pure Food and Drug Act, requiring labeling of 
ingredients, and states begin regulating opiates and other medicines, 
including cannabis.

Sources: Associated Press, NORML
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MAP posted-by: Jay Bergstrom