City attorney admits there is 'an issue' with city's marijuana dispensary ban ordinance

April 04, 2012

Marty Bachman, Palo Verde Valley Times

Blythe City Attorney Christian Bettenhausen told the city council there was "an issue" with the city's medical marijuana dispensary ordinance ban but suggested they "do nothing" to change it. Blythe banned dispensaries in January of 2010, after Police Chief Steve Smith made a presentation to the council in which he claimed less than 3 percent of California patients with medical marijuana recommendations from their doctors actually had cancer, AIDS, glaucoma or other illnesses that, in his opinion, warranted the use of medical marijuana. After the presentation, the council voted 5-0 to implement the ordinance.

At the March 13 Blythe City Council meeting, Carl 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 and told the council their ordinance was illegal.

Bettenhausen said there was a conflict of court decisions and a difference of opinion in various California courts.

"It's something else that is going to need to be resolved by the Supreme Court," he told the council. "There are four cases pending before the California Supreme Court, which are essentially asking the California Supreme Court to weigh in on this issue on trying to resolve some of these conflicts between the different appellate courts... and this one throws another monkey in there."

Bettenhausen said that the city has a conflict at this point but they were not improper in terms of their current ordinance.

"My recommendation at this point, along with what I've seen all the other cities doing, is really nothing," he told the council. "Because we need to get this thing figured out, we need the California Supreme Court to weigh in on what's legal."

In response to Dunbar, who had stated at the previous meeting that the feds were only raiding illegal dispensaries, Bettenhausen said that the federal government had made their position quite clear in that, in their view, all dispensaries were illegal.

"They have been taking a lot of proactive enforcement actions over the past six months," he said.

He said that he hoped the Supreme Court would review the Lake Forest decision along with the other four decisions they were currently reviewing, which would vacate the Lake Forest decision.

"It would not be prudent at this time to take action until we get further word from the Supreme Court," he told the council.

Councilman Mike Evans asked if the city was abiding by state law now and Bettenhauesen responded that there is a conflict of court decisions at this time.

"I would say yes and we need to be mindful of where the law may go from here," he said.

"We may need to make changes. One possibility would be to adopt a moratorium until we get some further word from the Supreme Court on this or we take no action because I would say there is still conflict with federal law and therefore it's a difficult situation. Maybe we can have more discussion in closed session related to pending litigation."

According to Kris Hermes, communications specialist for American for Safe Access, the largest organization devoted to protecting the rights of medical marijuana patients, doing nothing and imposing a moratorium are both within the city's discretionary authority.

"As stated earlier, a ban is not legal," he said. "Therefore, at minimum, the city must repeal its ban. Also, a moratorium is supposed to be a means for the city to assess the impact of dispensary regulations, not as a way to stall the decision-making process while the State Supreme Court mulls over these issues. There are still patients in the city of Blythe who are being forced into the illicit market as a result of unwillingness by the city council to properly address the issue."

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