California's medical pot wars spark up again

February 03, 2013

Howard Mintz, San Jose Mercury News

California's experiment with medical marijuana has sparked a hazy version of the old Not-in-My-Backyard syndrome.

From Hollister to Antioch, from Scotts Valley to Petaluma, from Seaside to Moraga, city after city has banned medical marijuana dispensaries, sending a message that even the sickest of patients must go elsewhere for that state-permitted dose of prescribed medical weed.

But on Tuesday, this fear-and-loathing approach to outlawing medical pot providers will face an unprecedented test in the California Supreme Court. The seven justices are to hear arguments on whether local governments can ban the dispensaries in view of the state's 1996 voter-approved law legalizing pot for medical use.

The case involves the Inland Empire Patients Health and Wellness Center, which more than two years ago sued to block Riverside's dispensary ban, arguing that cities and counties cannot bar activities legal in California. A state appeals court sided with Riverside, and now the Supreme Court, faced with similar legal tangles across the state, has jumped into the fray.

The stakes are high in California's ongoing struggle pitting medical marijuana advocates against cities worried about problems associated with some of the dispensaries, such as lax control over the distribution of a drug that remains illegal under federal law.

"The Riverside case is a fascinating example of our 'laboratories of democracy' in action," said Julie Nice, a law professor at the University of San Francisco, where the Supreme Court will hear the arguments. "It illustrates the difficulties created when each level of government ... stakes out a different regulatory position on a controversial subject."

The Bay Area, like the rest of California, is divided on the issue. San Francisco, San Jose, Oakland and Richmond have allowed certain numbers of dispensaries, even taxing their revenues, while large swaths of the region are dispensary-free zones.

Overall, there are at least 180 local government bans on medical marijuana dispensaries in California, about three dozen of them in the Bay Area, according to the marijuana advocacy group Americans for Safe Access. And that does not include moratoriums and regulations such as zoning limits, which medical marijuana supporters agree can be enforced.

Antioch and Pittsburg just recently approved bans, and Palo Alto voters in November rejected a ballot measure that would have allowed up to three dispensaries in the city. As a result, Peninsula residents for the most part have to travel to San Jose or San Francisco for medical cannabis.

Riverside, backed by groups such as the League of California Cities, argues that local governments have strong rights to regulate land uses in their boundaries, particularly an unusual land use such as a medical pot dispensary.

"Cities and counties may decide that a particular land use activity or business is not appropriate for a particular community, even though that activity is not illegal under state law," said Stephen McEwen, a lawyer for the cities.

Riverside banned dispensaries under its nuisance laws. Other cities have taken different approaches; Hercules five years ago approved a de facto ban with an ordinance forbidding any land use barred by either state or federal law.

Yet Hercules has not enforced its ban against the Hercules Health Center, which has operated in a business park in the East Bay city for several years. Patients such as Terri Holloway, a local resident, say the center provides a safe environment close to home to get medical weed, which she uses after suffering multiple heart attacks and a stroke.

Medical marijuana advocates say the bans undermine the intent of the state law, which they argue was meant to provide uniform access to medical cannabis across the state for certain patients, such as those fighting cancer or AIDS.

Instead, the bans result in a patchwork that critics say forces seriously ill people to jump in a car to get to dispensaries, or seek the drug on the black market. "The ones who need it the most are the ones who are affected the most," said Douglas Chiopek, who heads San Jose's Medmar Healing Center.

David Nick, who is representing the Riverside dispensary, flatly predicts he'll win in the Supreme Court because cities "cannot ban what a state law makes lawful."

But legal experts say the Supreme Court may be reluctant to strip cities of the right to enact the bans, likening the situation to states that permit counties to be "wet" or "dry" in allowing alcohol sales.

"It is really unusual for a locality to try to outright ban something that is legal under state law," said Alex Kreit, a Thomas Jefferson School of Law professor who advised San Diego on its medical pot regulations. "But I still think it's going to be an uphill battle for the medical marijuana argument in this case."

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