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Politics & Government

State Supreme Court Sides with Cities, Counties on Marijuana Bans

Municipalities with bans or regulatory ordinances including Weho now have a California Supreme Court ruling to back them up.

The California Supreme Court on Monday determined local jurisdictions can ban medical marijuana dispensaries.

The high court’s 7-0 decision followed months of anticipation stemming from a case in which a medical marijuana facility argued that under state law, the city of Riverside had no right to shut it down.

Since 2005 West Hollywood has enacted laws regulating dispensaries.

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"The ruling is not surprising," West Hollywood Councilman John Heilman said. "It affirms the basic authority that cities have over land use within their community. The ruling makes it very unlikely that anyone could successfully challenge West Hollywood's ordinance which allows medical marijuana dispensaries subject to various limitations."

A .pdf file of West Hollywood's 2011 ordinance regulating dispensaries is posted above.

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In , the dispensary based its defense on two state statutes:

  • The voter-approved Compassionate Use Act of 1996 (CUA), which allows possession and cultivation of marijuana for personal medical purposes with the written or oral recommendation of a physician.
  • In 2004, California lawmakers adopted the Medical Marijuana Program (MMP), designed to streamline the 1996 law and allow patients to band together to cultivate and distribute cannabis for medical purposes.

The court recognized the CUA and the MMP in its opinion Monday, but ruled the statutes don’t dictate whether local jurisdictions can ban pot facilities.

“Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders,” the justices found.

In exercising their land use powers Riverside and all other local jurisdictions are allowed, under zoning ordinances, to prohibit pot facilities if lawmakers consider them a public nuisance, the court ruled.

"The California Constitution recognizes the authority of cities and counties to make and enforce ... ‘all local, police, sanitary, and other ordinances and regulations not in conflict with general laws," the court wrote. "This inherent local police power includes broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction’s borders, and preemption by state law is not lightly presumed."

Marijuana is illegal under the federal Controlled Substances Act (CSA). In its ruling, the court elaborated on the federal-versus-state issue.

“The CUA and the MMP have no effect on the federal enforceability of the CSA in California," according to the court. "The CSA’s prohibitions on the possession, distribution, or manufacture of marijuana remain fully enforceable in this jurisdiction.”

Joe Elford, chief counsel with Americans for Safe Access, the country's leading medical marijuana advocacy group which filed an amicus brief in the Riverside case, was critical of the justices' opinion.

"While the California Supreme Court ruling ignores the needs of thousands of patients across the state, it simply maintains the status quo," he said."Notably, the high court deferred to the state legislature to establish a clearer regulatory system for the distribution of medical marijuana, which advocates and state officials are currently working on."

Cannabis advocates are urging state legislators to pass pending medical marijuana regulatory bills, including:

  • SB 439, introduced by California Senate President Pro-Tem Darrell Steinberg (D-Sacramento) and Senator Mark Leno (D-San Francisco)
  • AB 473, introduced by Assemblyman Tom Ammiano (D-San Francisco)

"The ball is in the legislature's court to establish statewide regulations that both meet the needs of patients and keep communities safe,” said Don Duncan, California policy director for Americans for Safe Access. "Patients should not be pushed into dark alleys in order to obtain a medicine that has been deemed legal by the voters of California."

Los Angeles city officials also weighed in on the court's decision.

Councilman Paul Koretz and colleague Bill Rosendahl, a medical marijuana user who recently announced that his cancer was in remission, support city-sponsored Proposition D on the May 21 ballot. It would impose a roughly 5 percent tax on the sale of pot and limit the number of dispensaries citywide to about 135.

Officials have estimated that at times there were as many 1,000 pot shops operating in Los Angeles over the past few years.

Koretz said Proposition D serves a dual purpose of regulating dispensaries so that they do not become a "public nuisance," while providing "adequate access" to those who need marijuana.

Koretz, a former West Hollywood councilman, added it was clear to him that Californians wanted people to have access to medical marijuana.

Rosendahl denounced the supreme court ruling, saying it could make it more difficult for people suffering from serious medical conditions to get marijuana for pain relief.

"I wouldn't be alive right now if it wasn't for medical marijuana," he said. "I will not let no judge kill me or other people."

Eastside Councilman Jose Huizar, who said many of his constituents have complained about pot shops, voted against putting Proposition D on the ballot. He said Monday's ruling validated the city's "gentle ban" on dispensaries enacted last year.

"This court ruling tells us that if chaos ensues once again and there is rampant abuse of whatever ordinance voters approve on May 21, we as a city have the authority to outright ban medical marijuana dispensaries," Huizar said.

Two other petition-driven measures on the ballot could also affect medical marijuana dispensaries in Los Angeles if approved:

  • Proposition F calls for a tax on dispensaries but does not set limits on the number of shops.
  • Proposition E is similar to Proposition D, without some of the regulatory provisions of the latter.

Los Angeles City Attorney Carmen Trutanich said the state supreme court decision "affirmed that local governments have the authority and obligation to protect public safety and regulate land uses, including the distribution of safe and readily accessible medical marijuana to patients and their caregivers."

"A city's decision whether to ban, regulate or limit the number of medical marijuana collectives must be made in an open, public and transparent manner, so that the needs and concerns of all in the community are heard," he said.

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