Pubdate: Wed, 06 Feb 2013
Source: Sacramento Bee (CA)
Copyright: 2013 The Sacramento Bee
Author: Peter Hecht


SAN FRANCISCO  California's highest court Tuesday took on the issue of
whether cities and counties can ban medical marijuana dispensaries,
and the pointed legal arguments that ensued seemed to put the state's
nebulous marijuana laws on trial.

In a case with huge implications for California's billion-dollar
medical marijuana industry, the state Supreme Court heard a challenge
by a dispensary operator seeking to overturn a city of Riverside ban
on medical marijuana stores.

State appellate courts have issued conflicting rulings on whether the
200 California cities and counties that prohibit medical marijuana
outlets can legally ban the dispensaries or be forced to accept them
under the state's medical marijuana laws.

J. David Nick, attorney for the Inland Empire Health and Wellness
Center, a dispensary ordered closed as a "public nuisance" under
Riverside zoning laws, argued that legal protections afforded medical
marijuana patients mean local governments have to accommodate the
stores that provide the marijuana.

Nick said provisions of Senate Bill 420  a 2003 bill given the numeric
nickname for pot  effectively legalized dispensaries and prohibited
local bans. The bill said people with diagnosed illnesses have legal
protection "to cooperatively or collectively cultivate marijuana for
medical purposes."

"The local authorities do not have the authority ... to ban what the
state Legislature made lawful," he said.

Nick faced blistering questions and commentary from the Supreme Court

Several justices noted the lack of specifics in SB 420, which was
supposed to provide a legal framework for carrying out the
voter-approved Proposition 215 ballot initiative that legalized
medical marijuana use in 1996.

"The Legislature knows how to say, 'Thou shalt not ban dispensaries,'
" said Associate Justice Ming W. Chin. "They didn't say that."

"The language (in the bill) doesn't even seem to get you very far,"
said Associate Justice Goodwin Liu.

The Riverside case is the first of three the California Supreme Court
has accepted on appeals from medical marijuana advocates challenging
state appellate court rulings upholding dispensary bans in Riverside,
Upland in San Bernardino County, and the Orange County city of Dana

Intensifying the legal debate, four other appellate court rulings
overturned criminal convictions of dispensary operators in Los Angeles
and San Diego, and bans on dispensaries in Los Angeles County and the
Orange County city of Lake Forest.

The state Supreme Court is expected to rule in the Riverside case this

Americans for Safe Access, a medical marijuana advocacy group, filed
court papers arguing that California cities and counties can't
arbitrarily bar dispensaries as nuisances without any proof that "they
are injurious to the public."

"It seems obvious that the city of Riverside has banned medical
marijuana dispensaries ... because it does not like them," wrote
attorney Joe Elford.

Arguing on behalf of the Riverside ban, attorney Jeffrey V. Dunn told
justices that the state constitution protects the rights of local
governments to regulate business activity and that there is nothing in
Proposition 215 or SB 420 that upends those rights.

Dunn said California never spelled out rules for how medical marijuana
was to be distributed. He suggested that the vague legislative
language on collective cultivation doesn't cover the hundreds of
marijuana stores that sprouted in the state.

"If the Legislature wanted to include distribution it would have said
so," Dunn said. "There is no state-sanctioned distribution system."

Proposition 215 called on "federal and state governments to implement
a plan for safe and affordable distribution of marijuana." But Dunn
argued in court Tuesday, "That has not happened."

Medical marijuana advocates have pushed for new legislation to
regulate California's cannabis industry in the wake of an ongoing
federal crackdown that has prompted closure of numerous dispensaries,
including 100 in Sacramento County.

A bill to create a state commission and policing agency to set rules
for distribution died in the state Senate last year, and is expected
to be raised again this month. 
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MAP posted-by: Jo-D