High court sides with cities wishing to ban pot shops

May 06, 2013

Denny Walsh, Sacramento Bee

Local governments in California may ban the manufacture, distribution and sale of medical marijuana within their boundaries, even though state law allows those activities under certain circumstances, the California Supreme Court ruled Monday.

The high court declared that neither of the two state statutes governing medical marijuana prohibits a city or county from invoking a total ban.

Associate Justice Marvin R. Baxter, who authored the unanimous opinion, wrote that California's statutes are very limited and are careful to strike a delicate balance in a controversial area of federal and state relations.

California laws "remove state level criminal and civil (penalties) from specified medical marijuana activities," he wrote in the 42-page opinion, "but they do not establish a comprehensive state system of legalized medical marijuana, or grant a right of convenient access to marijuana for medicinal use … or mandate local accommodation of medical cooperatives, collectives or dispensaries."

The much-anticipated opinion stems from a Riverside zoning ordinance prohibiting the use of property in the city as a marijuana dispensary. The city categorizes storefront pot shops as public nuisances.

Under the ordinance, Riverside brought a nuisance action against the Inland Empire Patients Health and Wellness Center. A trial court issued a preliminary injunction barring the center from distributing marijuana. A court of appeal upheld the injunction, and all seven justices of the state's highest court sided Monday with the two lower courts.

Americans for Safe Access, a medical marijuana advocacy group, said 193 cities and 20 counties in California ban medical pot shops.

In a news release, the group's chief counsel, Joe Elford, said the Supreme Court's opinion "ignores the needs of thousands of patients across the state."

"Notably," Elford added, "the high court deferred to the … Legislature to establish a clearer regulatory system for the distribution of medical marijuana, which advocates and state officials are currently working on."

Two regulatory bills – SB 439 and AB 473 – are now pending in the Legislature.

At a news conference outside the Capitol, medical marijuana advocates said the mayors of four cities – San Francisco, San Diego, Oakland and Berkeley – sent letters to lawmakers Monday supporting passage of a law that would detail statewide regulations applicable to all stages of medical marijuana, from garden to patient.

The advocates also noted that Sacramento Mayor Kevin Johnson recently sent a letter to Senate President Pro Tem Darrell Steinberg, D-Sacramento, in support of the Senate bill.

The city of Sacramento does not have a ban on dispensaries, but employs land-use restrictions to control how and where they operate, according to City Attorney Jim Sanchez. Dispensaries generally can't locate within 600 feet of schools and other select locations, and they must have security measures in place to prevent burglaries and robberies, he said.

Monday's high court decision "provides additional legal authority for what we do," Sanchez said.

Assemblyman Tom Ammiano, D-San Francisco, sponsor of the Assembly bill, pointed out Monday that nothing in the Supreme Court's language prevents the Legislature from adopting an approach that addresses the power of local jurisdictions to invoke their own regulations.

"To me, that sounds like a call for the Legislature to act," Ammiano said. "I hope to move toward that different approach so we can ensure that patients have access to medical cannabis wherever they live. That's what the voters of California wanted when they passed the Compassionate Use Act" as a ballot initiative in 1996.

The medical marijuana dispensary that challenged Riverside's ordinance insisted that a blanket prohibition is in conflict with the Compassionate Use Act and the Medical Marijuana Program, which was added to the state's laws in 2003 in an attempt to clarify some of the ambiguities in the ballot measure. One of its specific purposes was to "enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects."

But, writing for the court, Baxter said the California Constitution gives cities and counties "broad authority to determine … appropriate uses of land."

Couple that constitutional edict with the fact that nothing in the two state statutes "expressly or impliedly limits (that) inherent authority," and there is no impediment to the Riverside ordinance or any other local law, even one that totally excludes growing and selling medical marijuana, the justices concluded.


Cities: Davis, Elk Grove, Folsom, Lincoln, Lodi, Nevada City, Rocklin, Roseville, Wheatland, Woodland and Yuba City.

Counties: Amador, Butte, El Dorado, Nevada, Placer, Sutter, Sacramento

Source: Americans for Safe Access

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