Concord sued on medical marijuana ban

October 05, 2005

Ryan Huff, Contra Costa Times

A local patient advocacy group filed suit Thursday against the city of Concord, alleging that its recent ban on medical marijuana facilities is unconstitutional and violates state law.

The Oakland-based Americans for Safe Access wants the ban thrown out, saying that -- despite a recent U.S. Supreme Court ruling against marijuana use -- voter-approved Proposition 215 allows such dispensaries.

"We intend to call upon the California courts to implement the will of the people by overturning this ban," ASA attorney Joe Elford said at a news conference at the Moscone Center, where the League of California Cities is holding its annual conference.

This suit marks the latest move in an ongoing legal quandary on how to interpret June's Supreme Court ruling. The court determined people can be prosecuted on federal charges for growing and smoking marijuana, even when that activity is considered legal under state law.

Shortly after the ruling, state Attorney General Bill Lockyer affirmed that medical marijuana use is legal and could not be prosecuted under California law.

However, Concord City Attorney Craig Labadie said that the Supreme Court-backed federal law prohibiting marijuana use trumps Prop. 215 under the Constitution's Supremacy Clause.

Last month, the Concord City Council passed a ban on medical marijuana facilities, meaning Central Contra Costa County's only dispensary must close before the end of the year. That downtown club, MariCare on Colfax Street, is not part of the suit.

"We would make two lines of argument," Labadie said. "The type of facility actually operating in Concord does not fit the state law definition of a cooperative or collective. And state law is pre-empted by federal law."

As part of its offensive on cities that ban medical marijuana, ASA also filed similar suits Thursday against the cities of Pasadena and Susanville, in Lassen County. The group also sued Fresno earlier this year. These cities are among a dozen in California with medical marijuana bans.

Stephen DeAngelo, who in April unsuccessfully tried to get a permit for a dispensary in Concord, is the local suit's other plaintiff. He wanted to establish a full-service club where he could offer patients medical marijuana, acupuncture, massages and yoga classes.

But now he fears such city bans will force patients to get their marijuana from the black market.

"You'll have seriously ill people going into dark alleys and dealing with criminals to get their medicine," said DeAngelo, who grows his own marijuana.

Concord police see it differently. In a city staff report, police officials said that dispensaries could hold large amounts of marijuana and cash, making them "magnets for crime."

Concord plans to start enforcing the ban Dec. 26.

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