Court hears arguments over medical-marijuana ban

September 22, 2009

Rachanee Srisavasdi, Orange County Register

SANTA ANA – Several medical marijuana patients attended a state appeals court hearing Wednesday that could determine the legality of city ordinances that have banned medical marijuana dispensaries.

The 4th District Court of Appeal heard arguments in the case of Qualified Patients Association – a group of such patients – vs. the City of Anaheim, which approved an ordinance in July 2007 that forbids the outlets and makes operators subject to criminal prosecution. The patients group wants the appeals court to resurrect their lawsuit, which was dismissed by a lower court judge.

"Our alternative is to get (marijuana) from a gang member or cartels,'' said Marla Jones of Huntington Beach, who said she uses marijuana to relieve pain from flesh-eating bacteria. "That's what cities are pushing us to do."

"It's really sad that cities are encouraging the black market,'' added her husband, David, who said he uses medical marijuana for leg pain.

The couple cannot buy medical marijuana in their hometown of Huntington Beach – which is one of several Orange County cities to ban dispensaries.

At issue is a conflict between federal, state and local laws. Federal law deems all marijuana use criminal, but the state allows its use for medicinal purposes.

In 1996, California voters approved Proposition 215, also known as the Compassionate Use Act, which decriminalized the use of marijuana for medicinal purposes. The state legislature in 2003 established the Medical Marijuana Program (MMP), which allows cards to be issued to qualified patients and their caregivers.

But since then, cities have passed ordinances forbidding such dispensaries – like the city of Anaheim.

"It's essentially a criminal ordinance that criminalizes legal conduct,'' said Anthony Curiale, an attorney for the medical marijuana patients, of Anaheim's ordinance.

Joe Elford, an attorney for Americans for Safe Access, a national medical-marijuana advocacy organization, told the three-judge panel that hundreds of cities are waiting for the court's decision in this case to determine the legality of banning such dispensaries.

Several cities in Orange County have filed briefs in support of Anaheim, including Costa Mesa, Cypress, Fullerton, Garden Grove, Newport Beach, Orange, Placentia, Tustin and Westminster, according to the group.

"There is a lot of uncertainty here in the state … and we seek guidance,'' Elford said.

But, one of the justices, William F. Rylaarsdam, noted that the appeals court is limited to ruling on the question before it – whether a Superior Court judge should have granted a motion by Anaheim to throw out the lawsuit.

"I'm a little uncomfortable to be in the guidance business,'' Rylaarsdam said.

As for the city of Anaheim, it wants the appeals court to uphold the lower court's ruling that dismissed the patients' lawsuit.

Assistant City Attorney Moses Johnson criticized the state program that set up the dispensaries "a bad state law" and said he believes the law does not pre-empt the city's ordinance.

He also told the panel the Anaheim City Council decided to ban dispensaries partly because they were allowing recreational drug use.

"We're only banning dispensaries. We didn't ban all medical marijuana use,'' he added.

But, Justice Richard M. Aronson pointed out the ordinance – which defines dispensaries as any location that dispenses medical marijuana to three people or more – could apply to a family.

"It seems to criminalize the actions of a parent,'' who may give marijuana to his cancer-ridden child, he said.

Johnson replied the judges had the option of striking the criminal penalty clause from the city's ordinance.

A ruling is expected within 90 days.

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