Appeals court declines to say if local authorities can ban pot dispensaries
August 18, 2010
John Hoeffel, Los Angeles TimesA state appeals court Wednesday declined to decide whether California's medical marijuana laws prevent cities and counties from outlawing dispensaries, sending the closely watched dispute over Anaheim's 3-year-old ban back to the lower court for more hearings. Cities and dispensaries had been anxiously anticipating a major decision because the 4th District Court of Appeal in Santa Ana had asked for additional information and took an unusually long time to reach a ruling: a year rather than the usual three months.
"We thought this case would cause things to break heavily in one way or another," said Joe Elford, chief counsel for Americans for Safe Access, a medical marijuana advocacy group.
The appeals court, however, did reject Anaheim's contention that the federal Controlled Substances Act preempted the state's medical marijuana laws and thus made dispensaries illegal. Orange County Superior Court Judge David R. Chaffee had sided with the city on that issue.
Anthony Curiale, the attorney for the dispensary that filed suit, said cities and counties can no longer cite federal law to argue dispensaries are not allowed. "That's out the window," he said. "This opinion is very, very important from our point of view."
Several previous court decisions have reached similar conclusions. "As much as we want to put that argument out of its misery, we just can't shake it," Elford said.
Anaheim officials said the city's attorneys will meet next week with the City Council to consider the next step. The city could ask the state Supreme Court to review the decision.
Qualified Patients Assn., a dispensary run by Lance Mowdy, sued in 2007 to overturn Anaheim's ordinance making it a misdemeanor to operate a dispensary. Curiale declined to say whether the dispensary was still in business. Other dispensaries have opened in the city despite the ban.
"I'm not going to say that some don't exist that are bucking the law," said Moses W. Johnson IV, an assistant city attorney.
Far more cities and counties in California prohibit dispensaries than allow them. Americans for Safe Access says 133 cities have banned dispensaries and 99 have moratoriums, while nine counties have bans and 15 have moratoriums. Only 38 cities and nine counties allow dispensaries.
Although the three appellate judges declined to rule on the legality of bans, Curiale said, "They seem to imply that they're skeptical that the cities have the right to completely ban it."
The judges said "it seems odd" that the state Legislature would have intended to let cities and counties ban dispensaries. But they also said the issue "is by no means clear-cut or easily resolved on first impressions."
The judges acknowledged that they were "anxious" to decide "this important and interesting question" but said they had "precious few facts."