Appellate court voids Long Beach marijuana dispensary law
October 05, 2011
John Hoeffel, Los Angeles Times
In a decision that could upend the way California cities regulate medical marijuana, a state Court of Appeal has ruled that Long Beach's ordinance regulating dispensaries violates federal law.
The city held a lottery, issued permits to the winners and charged fees, which the three-judge panel said put it in the position of authorizing the distribution of marijuana in direct conflict with the federal Controlled Substances Act, which makes the possession and sale of the drug illegal. Marijuana use remains illegal under California law except for medical purposes.
The ruling, which was filed Tuesday, could require Long Beach and other cities, including Los Angeles, to rewrite their medical marijuana ordinances, a process that has been fraught with delay and chaos. Many cities that have long allowed dispensaries, such as San Francisco and Oakland, have permit-based ordinances that let officials decide who can sell the drug. Then they charge high fees and closely regulate them.
The decision by the 2nd District Court of Appeal in Los Angeles throws into doubt the legality of this approach.
"It creates a fair amount of uncertainty," said Joe Elford, the chief counsel for Americans for Safe Access, a medical marijuana advocacy organization. "Obviously, it's not a decision we're happy about."
But Elford noted that the decision makes it clear that cities can still restrict dispensaries, such as placing limits on their location.
"It kind of creates a very fine line in terms of what's allowed and what isn't," he said. "I'm very optimistic that this case is not going to sound the death knell for regulation of dispensaries."
In Los Angeles, Jane Usher, a special assistant city attorney, said the decision would prevent the city from following through on its plan to use a lottery to choose 100 dispensaries.
"Anything that a city tries to do that advances or authorizes a collective is federally preempted," said Usher, who said she would meet with the City Council to discuss the ruling. "Our provisions, which are registration and not a permit, are a step away from what Long Beach did, but it's a small step away."
The lawsuit was brought by members of a Long Beach collective that was ordered to shut down. They appealed after a Superior Court judge denied a preliminary injunction.
Robert E. Shannon, the Long Beach city attorney, said it would be up to his City Council to decide whether to appeal the decision to the state Supreme Court or redraft the ordinance.
"This clearly falls into the category for the medical marijuana advocates of 'be careful what you ask for,' " he said, noting that the decision could interfere with the ability of cities to protect public safety. "The most logical thing to do is to ban that which we cannot regulate and permit."
Some medical marijuana advocates said the decision conflicts with others issued by another state appellate court that concluded that federal law did not preempt medical marijuana laws. They suggested that the state Supreme Court would have to step in to resolve the issue.