Banning Pot Clubs
February 12, 2013
David Downs, East Bay Express
The California Supreme Court appears ready to uphold the right of cities and counties to ban medical cannabis dispensaries. And while experts say the decision likely will result in few changes in much of the East Bay, the ramifications for the rest of California could be profound — even if the court decides to defy expectations and strike down bans on pot clubs.
At least twenty East Bay cities currently have bans in place, including Emeryville, Dublin, Fremont, Hayward, Livermore, Newark, Pleasanton, Antioch, Brentwood, Concord, Danville, Hercules, Lafayette, Moraga, Oakley, Pinole, Pittsburg, and San Pablo. If the high court rules in favor of bans, "the status quo would pretty much remain" for those cities, said cannabis attorney Lauren Vazquez. Likewise, the court's decision likely won't affect pot clubs in the approximately fifty California cities that currently tax and regulate them, including Oakland, Berkeley, Richmond, and San Francisco.
But the case City of Riverside v. Inland Empire Patient's Health and Wellness Center could have significant impacts for communities like Vallejo, Union City, and Humboldt County that currently neither regulate nor ban dispensaries. Upholding the legality of bans could push some cities off the fence, Vazquez said. "Ones that maybe haven't thought about it, once they get the authority would just do it as matter of procedure," she said of banning dispensaries.
The case "could push them one way or the other," said Joe Elford, chief counsel for Americans for Safe Access, referring to cities and counties. "I suspect it's probably more likely to push them in the wrong direction."
The biggest shock wave in the Bay Area may be felt in San Jose, where voters overturned strict dispensary regulations that constituted a de facto ban. Today, more than one hundred San Jose clubs operate and pay taxes in a sort of legal limbo. In the past, San Jose's City Attorney's Office has argued that all sales at dispensaries are illegal, Elford said. And the office still wants to ban clubs once and for all, said San Jose dispensary operator Dave Hodges. "I've been telling people, 'it's apocalyptic,'" Hodges said. "In less than ninety days, cities may have the ability to outright ban all storefront dispensaries.
"It would undoubtedly give the cities the upper hand in the war against cannabis clubs," Hodges continued. "If this had been the law when I started four years ago, San Jose would have zero cannabis clubs today."
The high court's decision stems from a lawsuit filed by the dispensary Inland Empire Patients Health and Wellness Center, which opened in Riverside in 2009, and then took the city to court over its ban. After two legal losses, the club appealed to the state Supreme Court. Many observers of last week's legal arguments in front of the high court believe that the justices will uphold dispensary bans, because current state law does not prohibit them. A decision is expected within ninety days.
Elford said he hopes that if the court rules that bans are permissible, the justices will at least emphasize that bans are not required. "If they rule in favor of Riverside, I'm very hopeful they'll do so in a way that makes two things clear: Federal law doesn't require localities to ban it, and that state law does allow for these dispensaries," he said.
But a blanket ruling against medical marijuana dispensaries could prompt many communities to enact bans in the coming months. Currently, there are about 180 such bans in the state. "Tens of thousands of patients will be left out in the cold with nowhere to turn to get the medicine they need except the black market — and that's bad public policy," Elford said. "It can be fixed by these localities if they want to. They don't have to pass bans."
The state legislature also is waiting for the verdict; proposed medical marijuana industry regulations are currently pending in Sacramento. And if the high court upholds the right of cities to ban dispensaries, it could prompt a push in the legislature to overturn the court's decision and prohibit bans altogether.
But if that doesn't happen, the issue of bans could revert back to the local level. If, indeed, local zoning trumps all, city councils would no longer be able to hide behind the federal prohibition against marijuana when denying dispensary permits. "Localities [would be] making a choice, if they do ban dispensaries, it's because they don't like dispensaries," Elford said.
Such irrational intolerance also could motivate patients in cities that have banned dispensaries to elect leaders sympathetic to their cause and pass local laws they desire, said Vallejo resident and NORML deputy director Paul Armentano. "This is going to become a local political issue," he said. "Constituents will have a responsibility to debate and lobby their local officials in favor of upholding or removing bans."
There is, however, at least one medical cannabis industry that could benefit if the high court upholds bans — delivery services. "That would probably be the immediate ramification of this ruling: that there would be a prevalence or expansion of the number of delivery services to service patients in these areas," Armentano said.
And if the court strikes down the legality of bans? It would likely lead to a proliferation of new dispensaries opening across the state, particularly in communities that had banned them. "Every city in California would have to allow at least one dispensary to open in their city — as long as someone was willing to open one up," Vazquez said.