Pubdate: Tue, 07 May 2013
Source: Record Searchlight (Redding, CA)
Copyright: 2013 Record Searchlight
Authors: Jenny Espino, Sean Longoria


California cities and counties can ban pot shops, the state's highest 
court ruled today in a unanimous opinion likely to further diminish 
California's once-robust medical marijuana industry.

The California Supreme Court said neither the state's voter-approved 
law legalizing medical marijuana nor a companion measure adopted by 
the Legislature prevent local governments from using their land use 
and zoning powers to prohibit storefront dispensaries.

The court's ruling in Riverside v. Inland Empire Patient's Health and 
Wellness Center Inc., came as good news to attorneys for the cities 
of Redding and Anderson, who've both grappled with lawsuits prompted 
by proposed bans on dispensaries within their limits.

Redding's assistant city attorney, Barry DeWalt said the ruling 
should result in a settlement with the dispensaries and closure of 
the remaining storefronts.

"The significance of the Inland Empire case for the city of Redding 
is that it is now made clear that if a city can enact a total ban, 
the city of Redding's regulation of the size of a dispensary is quite 
clearly lawful," DeWalt wrote in an email, echoing the court's 
opinion that medical marijuana laws do not pre-empt city bans.

Anderson earlier this year settled a lawsuit brought nearly two years 
ago by the city's sole collective, the Green Heart. Its owners sued 
in September 2011 after Anderson leaders barred dispensaries, 
claiming the city's zoning ban on collectives violated the U.S. 
Constitution, though a Shasta County judge issued a court order for 
the dispensary to shut down early in 2012 before the case was settled.

The agreement prohibits its owners from operating a dispensary at 
their former location just off Highway 273 between North and South 
streets, said Ann Siprelle, city attorney and partner at Best Best 
and Krieger, L.L.P., Attorneys at Law in Sacramento.

Siprelle in a voicemail message called the Supreme Court's decision 
"great news for cities."

But medical marijuana advocates say the ruling only weakens 
Proposition 215, the 1996 measure giving patients access to medical 
cannabis, and may drive marijuana underground.

"How can we vote something in and then have it overturned?" said Cass 
Criner, who operates the Family Tree Care Center collective in 
Redding. "The bottom line is if we get the doors shut, it's not going 
to stop the use of marijuana in California. ... All you (the court) 
did was made the price of weed go up."

The court's decision says that while state laws allow for the 
possession of medical marijuana, those same laws don't pre-empt local 
ordinances covering land use, planning and business licensing.

"While some counties and cities might consider themselves well-suited 
to accommodating medical marijuana dispensaries, conditions in other 
communities might lead to the reasonable decision that such 
facilities within their borders, even if carefully sited, well 
managed, and closely monitored, would present unacceptable local 
risks and burdens," Justice Marvin Baxter wrote for the seven-member court.

The advocacy group Americans for Safe Access estimates another 200 
jurisdictions statewide have similar prohibitions on retail pot 
sales. Many were enacted after the number of retail medical marijuana 
outlets boomed in Southern California after a 2009 memo from the U.S. 
Justice Department said prosecuting pot sales would be a low priority.

However, the rush to outlaw pot shops has slowed in the 21 months 
since the four federal prosecutors in California launched a 
coordinated crackdown on dispensaries by threatening to seize the 
property of landlords who lease space to the shops. Hundreds of 
dispensary operators have since been evicted or closed voluntarily.

Marijuana advocates have argued that allowing local governments to 
bar dispensaries thwarts the intent of the state's medical marijuana 
law - the nation's first - to make the drug accessible to residents 
with doctor's recommendations to use it.

DeWalt said, however, the city's ban poses no conflict with the 
intent of the law.

The ordinance allows for patients qualified under state law to meet 
in groups of nine or less to cultivate and distribute cannabis among 
themselves, he said.

At one time there were 17 dispensaries that challenged Redding's 
ordinance. That number has dropped to seven, and the case remains in 
the discovery process, DeWalt said.

Riverside city lawmakers used their zoning authority to declare 
storefront pot shops as public nuisances and ban the operations in 
2010. The Inland Empire Patient's Health and Wellness Center, part of 
the explosion of retail medical marijuana outlets, sued to stop the 
city from shutting it down.

A number of counties and cities were awaiting the Supreme Court 
ruling before moving forward with bans of their own.

A mid-level appeals court previously sided with the city of 
Riverside, but other courts have come to opposite conclusions. Last 
summer, a trial judge ruled that Riverside County could not close 
medical marijuana dispensaries in unincorporated areas because the 
move did not give the shops any room to operate legally under state law.

Meanwhile, an appeals court in Southern California struck down Los 
Angeles County's two-year-old ban on dispensaries, ruling state law 
allows cooperatives and collectives to grow, store and distribute pot.

The Supreme Court's decision might not be the last word on the issue, 
however. Pending legislation would establish a new statewide system 
for regulating and licensing the medical marijuana industry and 
clarify the role of dispensaries in it.

Activists also are in the early stages of planning a ballot 
initiative that would legalize the recreational use of marijuana and 
regulate it like alcohol, as voters in Washington and Colorado did last year.

Criner said he will consult with his attorneys about what the ruling 
from the state's top court may mean for his store's future. Whatever 
that is, he said he will follow the law.

"I want to know what my options are," he said.

This story contains material from the Associated Press.
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MAP posted-by: Jay Bergstrom