Pubdate: Wed, 06 Feb 2013
Source: Press-Enterprise (Riverside, CA)
Copyright: 2013 The Press-Enterprise Company
Contact: http://www.pe.com/localnews/opinion/letters_form.html
Website: http://www.pe.com/
Details: http://www.mapinc.org/media/830
Author: Jim Miller

Medical Marijuana

SUPREME COURT WEIGHS RIVERSIDE BAN

SAN FRANCISCO  The California Supreme Court took issue Tuesday with
critics of Riverside's ban on medical marijuana dispensaries, with
several justices openly skeptical of claims that local governments
lack authority to prohibit the storefront sale of pot.

Yet some justices also noted that the state's medical marijuana laws,
while never explicitly overriding local ordinances, nevertheless call
for consistent and uniform application throughout the state.

The Riverside case, coming more than 16 years after California voters
decriminalized marijuana for medical purposes, could finally settle a
thicket of conflicting court opinions about some local governments'
attempts to use zoning and land-use authority to prohibit the
storefront sale of medical marijuana.

A ruling in the city's favor would put the bans on solid legal
footing. A decision that rejects wholesale prohibitions on
dispensaries would force dozens of cities and counties across the
state to go back to the drawing board.

Any ruling, meanwhile, could spur state lawmakers to pass clarifying
legislation. A decision is due within 90 days.

Tuesday, justices repeatedly challenged J. David Nick, the attorney
for the Inland Empire Patients Health and Wellness Center, which
contends that the voter-approved 1996 Compassionate Use Act and the
2004 Medical Marijuana Program passed by the Legislature requires
local governments to regulate dispensaries, not ban them.

"The Legislature knows how to say, 'Thou shalt not ban dispensaries,'
" Justice Ming W. Chin told Nick.

Answered Nick, "If you were to allow bans, city by city, county by
county, that is the opposite of what the Legislature was trying to
accomplish."

Attorney Jeffrey V. Dunn, of Irvine, who represented Riverside, said
the medical marijuana laws only dealt with protecting people who use
medical marijuana from criminal prosecution.

The law has zero bearing, he said, on local officials' constitutional
powers to provide for the public health, safety and welfare and
approve zoning rules to those ends.

"If the Legislature had wanted to include a distribution system, it
would have said that. There is no state-sanctioned distribution
system" that would require local governments to allow dispensaries, he
said.

Justice Kathryn M. Werdegar said the law seems to suggest that it
applies at the local level when it talks of its uniform and consistent
application across California. Nick agreed: "To claim that the act is
just a defense against crimes is just not realistic," he said.

Riverside officials, though, said that language refers just to the
decriminalization of medical marijuana, not storefront
dispensaries.

As of the end of 2012, about 45 dispensaries in Riverside had shut
down after the city approved its ban in 2011. About a dozen
dispensaries remained open.

Inland governments that prohibit medical marijuana dispensaries
include Riverside and San Bernardino counties and the cities of
Riverside, San Bernardino, Hemet, Redlands, San Jacinto, Corona,
Norco, Murrieta, Temecula and Moreno Valley.

The Supreme Court's review of the case followed conflicting opinions
in lower courts.

In November 2011, the Fourth District Court of Appeal, Division Two,
agreed with Riverside's argument that state laws regulating medical
marijuana did not prevent the city from passing ordinances that banned
storefront dispensaries.

But an Orange County appellate court division later reached the
opposite conclusion and rejected the local dispensary bans.

Nick said Tuesday that local ordinances have to be consistent with the
state's medical marijuana laws. Officials can regulate the
dispensaries by restricting the number of permits or limiting them to
certain parts of town.

Local government's power over land use, he said, has never meant
"banning what state law allows."

Chief Justice Tani G. Cantil-Sakauye challenged Nick's contention that
cities and counties lack the right to prohibit marijuana dispensaries
because the state's medical marijuana law never expressly mentions
that.

Other justices seemed of similar mind. "You say it's inferred but it's
not explicit," Justice Goodwin Liu told Nick.

Dunn echoed that sentiment. The state law, he said, "does not
state...that we are prohibited from exercising our land use authority."

Afterward, Riverside City Attorney Greg Priamos said city officials
are optimistic that the court will uphold the November 2011 appeals
court ruling.

Lanny Swerdlow, the founder of the Inland Empire patients center, said
he is uncertain how the court will rule.

"It's certainly not a slam dunk," Swerdlow said after the hearing.
"The justices seem to be saying, yes, cities can ban, they have the
right to do so. On the other hand, they also kind of agreed that when
state law says something, you can't just summarily not do it."

Tuesday's hearing was a special session at the University of San
Francisco.

Julie Nice, a professor of constitutional law at the university, said
the Riverside case underscores the legal confusion about which level
of government - federal, state or local - has the upper hand when it
comes to regulating marijuana.

"The bottom line is the state Legislature is guilty of mixed signals
here," Nice said. "That's what's put local governments in this
situation." 
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