Can cities ban pot clinics?

February 03, 2013

Roxana Kopetman, Orange County Register

The state Supreme Court is poised to begin hearing arguments Tuesday on whether cities and counties can ban medical marijuana dispensaries – a ruling long awaited by both the municipalities that want to get rid of the clinics and the patients who say the medical cannabis is their life-saver.

Most Orange County cities prohibit the dispensaries. In recent years, hundreds have opened up across the county.

Some cities, like Dana Point, have chased the clinics out of town. A few, like Costa Mesa and Lake Forest, asked federal agents to step in and help shut them down.

Laguna Woods, a retirement community in South County, is unique in that it allows the dispensaries. But the city doesn't have any.

Meanwhile, in Santa Ana, where clinics have been banned since 2007 but some 70 are open, medical marijuana proponents recently presented signatures to place a measure on the ballot to let voters decide. And in Garden Grove, which has one of the county's largest concentrations of clinics, there's a ban but no enforcement.

"We're not enforcing our own laws because we don't want to have big lawsuits," said Garden Grove Mayor Bruce Broadwater. "We're sort of in limbo until that case goes before the Supreme Court."

That's happening Tuesday, when the court will consider the case of City of Riverside v. Inland Empire Patient's Health and Wellness Center Inc. A decision is expected this spring. Both sides are looking for guidance and an answer to the confusion caused by contradictory decisions from lower courts.

"There have been conflicting decisions from appellate courts. And there is no clear and complete and concise regulatory system from the Legislature. That's why this will be an important ruling," said Lake Forest attorney Matthew Pappas. He is the lead lawyer in a different case involving the city of Long Beach. That case was headed to the state's highest court but was pulled when Long Beach repealed its ordinance creating a lottery for dispensaries.

Pappas, who represents some 40 cases involving medical marijuana issues in California, said he expects the state Supreme Court will find "a balance between the need to ensure public health safety and welfare with the need of society to be concerned about and afford the medication needed to its seriously ill citizens."

Jeffrey Dunn, an Irvine-based attorney representing Riverside before the high court, said his case has nothing to do with the merits of medical marijuana. Simply put, he said, federal law bans marijuana. And he expects the court will rule in his favor.

"California cannot authorize what federal law prohibits. That's the crux of the argument," Dunn said.

In 1996, California voters approved the Compassionate Use Act. It allowed patients with a valid doctor's recommendation to possess and cultivate marijuana for personal use and asked the state and the federal government to create a safe and affordable system. In 2003, the California Legislature approved a program that included providing medical marijuana users with identification cards.

Opponents contend that it is not difficult to acquire a doctor's note for medical pot and complain that the dispensaries attract recreational drug users and increase crime. Supporters argue that the bans hurt the people who need the medication the most.

"I take it for pain," said Marla James, director of the Orange County chapter of Americans for Safe Access, a national organization promoting safe and legal access to marijuana for therapeutic use and research.

James has battled flesh-eating bacteria. She's a lost a leg to diabetes. And she suffers from rheumatoid arthritis. Medical marijuana offers her relief from pain without the side effects of traditional strong drugs, she said.

Like others on both sides of the issue, James said she welcomes a higher court ruling. "It's so confusing right now," she said.

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