Legality of city's medical marijuana dispensary ban questioned

March 22, 2012

Marty Bachman, Palo Verde Valley Times

Blythe's ordinance banning medical marijuana dispensaries is illegal according to local resident Carl Dunbar, who spoke out on the issue at the March 13 Blythe City Council meeting. Dunbar cited a recent court decision, Lake Forest v. Evergreen Holistic Collective (Fourth Appellate District Division 3, #043909), where the court ruled specifically that cities cannot issue blanket nuisance bans against medical marijuana collectives, provided the collectives cultivate on-site. After Dunbar spoke, Councilman Mike Evans asked City Attorney Christian Bettenhausen if it was true that the city's ordinance was out of compliance. Bettenhausen said he had not heard of any court decisions that would require the city to change its ordinance and was content with the way it was written.

Dunbar offered to provide him with the court decisions but Bettenhausen never took him up on the offer.

Bettenhausen said that according to federal law, marijuana is a banned substance and that federal law trumped the state's laws, justifying the city's ban. He then spoke about recent federal raids of dispensaries in California to further his point that the city made the correct decision to ban dispensaries.

Dunbar said that the feds had made it very clear that their aim is to shut down illegal operations.

"What I'm talking about is state laws and legal operations," Dunbar said. "If it is a state law then people have the right to petition under that law. Saying that the feds don't like it is wrong."

Since the meeting, the Times discovered that Americans for Safe Access (ASA) attorney, Joseph D. Elford, of Oakland, sent a letter to Bettenhausen and other city attorneys across the state earlier this month, that had a contrary opinion to Bettenhausen's position. Elford's letter stated that the court held "that local governments may not impose a per se ban on medical marijuana dispensaries without contradicting state laws."

Elford described Americans for Safe Access as being the largest organization devoted to protecting the rights of medical marijuana patients.

Kris Hermes, ASA's communications specialist, said the organization felt very strongly that ordinances such as Blythe's were in violation of state laws.

"Lake Forest is very clear, cities can't ban these activities," Hermes said in an email to the Times.

Hermes also said that in another appellate court ruling, Qualified Patients Association vs. the City of Anaheim, the California Court of Appeals ruled that Anaheim could not use federal laws as grounds to ban medical marijuana dispensaries.

Blythe's ordinance reads: "The city council finds that federal and state laws prohibiting the possession, sale and distribution of marijuana preclude the opening of medical marijuana dispensaries in the city of Blythe, and in order to serve public health, safety, and welfare of the residents and businesses within the city, the declared purpose of this chapter is to prohibit medical marijuana dispensaries..."

Blythe banned dispensaries at the direction of Police Chief Steve Smith, who just over two years ago made a presentation to the Blythe City Council asking for the ban.

Dale Gieringer, Ph.D., director of the California chapter of the National Organization to Reform Marijuana Laws (NORML), agreed with ASA's position on the law and said in an email to the Times that the city would have to accommodate cultivation collectives somehow, but could regulate them, e.g. with zoning.

"The Lake Forest ruling conflicts with a prior ruling by the Fourth District Court of Appeals, Riverside v. Inland Empire Patient's Health and Wellness Center, but that ruling is now suspended because the California Supreme Court decided to review it," Gieringer wrote. "Therefore, of the two decisions, only Lake Forest is citable as current law."

After the meeting, Evans said he wasn't concerned about Bettenhausen's allocution on dispensaries being raided by the federal government.

"That's between the owner of the dispensary and the feds," Evans said. "My concern, as a city councilman, is that our ordinances are in compliance with state law and that we're not hit with a costly lawsuit because we failed to obey the court's rulings."

He added that it was a disgrace there were so many roadblocks being thrown in the path of getting medicine to people who were sick.

"It's a real shame," he said. "If this can help relieve someone's pain or if it can help someone who has cancer to be able to eat, I don't understand why we're against that."

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