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 Author: Sandra Emerson RIVERSIDE DISPENSARY FOUNDER LANNY SWERDLOW PLAYING WAITING GAME The founder of the Riverside medical marijuana collective at the center of Tuesday's hearing before the State Supreme Court in San Francisco now can just wait to see if he can remain open. Lanny Swerdlow said he founded the Inland Empire Patients Wellness Center in order to provide patients access to medical marijuana, but Riverside officials have been attempting to close the center on the basis that dispensaries are prohibited under the city's zoning ordinance. Attorneys representing the dispensary and the city gave their oral arguments in front of the Supreme Court, whose decision will be binding on numerous other cases throughout California questioning the use of zoning to ban dispensaries. "Well it certainly not going to be a slam dunk," said Swerdlow, who is a registered nurse. "I was hoping to walk out of there feeling really good. I just don't know. I'll have to wait and see." The court will have 90 days to issue a ruling on the case. Medical marijuana patients were given the right to possess and cultivate marijuana for personal medical use after voters passed Proposition 215 - The Compassionate Use Act of 1996. However, cities have argued Proposition 215 does not prohibit them from creating ordinances to ban dispensaries. The use of marijuana - for medical or recreational purposes - is illegal under federal law. More than 175 cities and 20 counties in California have banned retail pot shops, according to the medical marijuana advocacy group Americans for Safe Access. J. David Nick, attorney representing the center, said if cities were allowed to ban dispensaries it would go against the intention of the state legislature and voters to give safe access to medical marijuana. "Land use has never given authority to municipalities to ban what state law makes lawful," said J. David Nick, attorney representing the Center. Jeffrey Dunn, attorney representing the city of Riverside, said otherwise. The Compassionate Use Act decriminalized the use of medical marijuana, but did not set up a distribution system such as storefront dispensaries, Dunn said. "Every form of regulation necessarily includes a prohibition," he said. Justices questioned both parties on their interpretations of zoning laws and medical marijuana laws that do not expressly state either way if cities are allowed to ban through zoning. When the state Supreme Court agreed to take the Riverside case, they also took a similar case out of Upland. The city of Upland has been fighting a medical marijuana cooperative that is now closed on teh basis that it is operating illegally under their zoning ordinance. The attorney representing the city of Upland, T. Peter Pierce with Richards, Watson & Gershon, attended Tuesday's hearing. It's always difficult to predict the outcome of an oral argument in the Supreme Court. My perception is that the Justices were more skeptical of the arguments advanced by the medical marijuana dispensary than they were of the argument that was advanced by the city of Riverside," he said. Although, Pierce said, it is not uncommon to come away from oral arguments feeling one way only for the court to decide another way. Pierce said Dunn made several persuasive arguments in favor of cities' ability to ban dispensaries through zoning. "I think Jeff did an excellent job of explaining to the court why the Compassionate Use Act and Medical Marijuana Program Act together operate to decriminalize the use of medical marijuana by patients, rather than affirm authorization of that use such that cities would be required to allow it," he said. Pierce said that he concludes that the court will not hear the Upland case, but will issue judgement based on the outcome of the Riverside case. Swerdlow said he could not tell by the questions asked by the justices during the hearing which way they would decide. "The questions the judges asked were on both sides of the spectrum, so I just don't know," he said. "They certainly asked some questions I had questions about." If the justices rule against the city's use of banning through zoning, then Swerdlow said he would have to work with the city to determine regulations for the operation of medical marijuana collectives. Also, the ban would make it more difficult for patients to obtain medical marijuana. "Then the only legal method that patients have of obtaining marijuana, except growing it on their own, is now out the window, which means that the majority of patients are back to dealing with criminals in order to get marijuana," he said. "That was not the intention of the legislature. Although it certainly was the intent of the city. They don't want collectives, but none of the cities offer any alternative ways for patients to obtain medical marijuana that are realistic." It will then be up to the state Legislature to draft legislation on the distribution of medical marijuana, he said. "The question is, it took the state legislature nine years to craft Senate Bill 420 (Medical Marijuana Program Act)," he said. "Are we going to have to wait another nine years for the legislature to craft another distribution system?" Paul Chabot, founder of Rancho Cucamonga-based Inland Valley Drug Free Community Coalition, said he "strongly" feels the court will rule to allow cities the right to ban dispensaries. "The justices say nothing in Proposition 215 or the state legislative action in 2003, neither one of those gave any guidance or mandatory rules that city's must allow for marijuana shops," said Chabot, a former Navy officer and White House Senior Advisor for law enforcement, justice and drug control. "We've always felt confident that the courts would rule in our favor. Hearing the justice comments today I think really solidified, not only our position but what we've been saying since day one. That cities have the right to ban these dispensaries, which many cities consider nuisances. Many cities are on the fence and waiting for the ruling before taking additional action. Once it comes down favorable on our side, I see many more cities joining the 200 plus in banning dispensaries. It's the big game changer." Wes Woods II contributed to this report - --- MAP posted-by: Jay Bergstrom