Medical pot advocacy group threatens lawsuits over dispensary bans

August 31, 2010

Joshua Melvin, San Mateo County Times

A medical marijuana advocacy group sent letters Wednesday to about 140 California cities and counties that have banned pot dispensaries, including several in the Bay Area, and urged them to change their stance or face lawsuits. The letter from Americans for Safe Access says a recent court ruling clears the way for cities to regulate medical marijuana dispensaries without fear of going against federal law. It goes on to say cities that have such banned pot clubs should now set up rules that allow them.

"Otherwise, we will explore our legal options," the letter says.

On the Peninsula, city councils in Millbrae, Colma and Los Altos have passed bans on medical marijuana dispensaries. And in Santa Clara County, the cities of Gilroy and Morgan Hill disallow pot clubs. A lengthy list of cities in the East Bay, including Alameda, Concord and Hayward, have also established bans, according to the group.

Joe Elford, an attorney who penned the letter for Americans for Safe Access, said the group hasn't decided which city or cities could face a lawsuit. He added that the group hopes to work with the jurisdictions after they receive the letter and then make a decision in the next four to six weeks on whom to sue if necessary. "Hopefully, some of them (the cities) will come up with regulations," he added.

Cities such as San Mateo and San Carlos, as well as the unincorporated area of San Mateo County, have regulations on pot collectives.

Under the rules, the medical marijuana collectives are allowed but sales of marijuana are not. San Mateo is the only one of the three jurisdictions that has approved a collective. Most other cities in the county, including San Bruno, South San Francisco and Redwood City, have set up temporary bans.

The court decision that provoked the letter came Aug. 18 from California's 4th District Court of Appeal and was over a lawsuit filed by a pot club contesting the city of Anaheim's ban. Elford said the justices ruled that local jurisdictions allowing dispensaries don't conflict with federal law. However, the justices declined to say whether cities can ban pot clubs and ordered the issue sent back to a lower court for more hearings.

Martin J. Mayer, attorney for the California Police Chiefs Association and other law enforcement groups, said the ruling doesn't mean much. Judges, including those on the California Supreme Court, have already ruled that federal laws don't pre-empt California's medical pot law, he said.

Mayer took a similarly dim view of the threat of a lawsuit, saying it's a case of "roll over and do what we want or we'll sue you." But he added that he looks forward to the battle, adding, "We are a litigious society, which is better than shooting it out at high noon." Colma City Attorney Roger Peters said he couldn't comment on the letter because he hadn't seen it. But he said the city's ban is not anti-medical marijuana, but rather takes aim at secondary effects from collectives, such as traffic and crime. "It's not a philosophical statement on the use of marijuana," he said. "It's a land use issue."

Millbrae City Attorney Joan Cassman and Millbrae Mayor Paul Seto declined to comment.

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