Health & Human Services

California Supreme Court: Cities Can Ban Pot Dispensaries

The California Supreme Court gave local governments the power Monday to zone medical marijuana dispensaries out of existence, a decision that upholds bans in about 200 cities but does little to solve Los Angeles' struggle to regulate hundreds of storefront pot outlets.
by | May 7, 2013
 

By Maura Dolan, Kate Linthicum and Joe Mozingo

The California Supreme Court gave local governments the power Monday to zone medical marijuana dispensaries out of existence, a decision that upholds bans in about 200 cities but does little to solve Los Angeles' years-long struggle to regulate hundreds of storefront pot outlets.

The unanimous decision provided clarity for cities and counties that want to rid themselves of the dispensaries, which sprouted up statewide after a 1996 voter-approved measure that sought to authorize medical marijuana but lacked specifics in how it would be regulated.

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Now, attorneys on both sides of the issue say, many cities will be inclined to ban the pot outlets rather than allow a limited number and regulate them -- a practice that has spawned expensive litigation up and down California.

"Only cities as liberal as Los Angeles will attempt to regulate," said Los Angeles Special Assistant City Atty. Jane Usher. "Unless you are a city that enjoys being in the litigation business, I think bans will become the order of the day."

The ruling by Justice Marvin R. Baxter underscored the state's lack of regulation of medical marijuana. Several lawyers described the decision as a call for the Legislature to step in and resolve the confusion.

The decision came in a test of a dispensary ban by the city of Riverside, which has shut down 56 cannabis operators since 2009.

With lower courts previously divided over the legality of the bans, some operators refused to obey them, including about a dozen in Riverside, said Riverside City Atty. Gregory Priamos.

Opponents of the ban said it was preempted by state law, which allows patients access to cannabis. But the court said such zoning ordinances were legal because neither the Legislature nor the voters had clearly barred them.

The ruling will make it easier for cities to persuade courts to sanction defiant dispensaries by issuing injunctions and fining and jailing operators who refuse to comply with them. Priamos said Riverside intended to make dispensary operators and property owners pay the city's legal costs in such cases.

But Priamos said cities would continue to enforce their bans and put pressure on operators.

"This battle is by no means over," he said. Dispensaries "pop up overnight."

Medical cannabis advocates lamented that patients in some parts of the state -- the Central Valley and the northern reaches of California -- might now have to drive long distances to obtain marijuana legally. But they also said that most communities that wanted to ban dispensaries already have done so.

Although the ruling did not specifically state that retail sales of medical marijuana were legal -- an issue that has vexed lower courts -- the decision appeared to accept the existence of dispensaries.

"While several California cities and counties allow medical marijuana facilities, it may not be reasonable to expect every community to do so," Baxter wrote.

In Long Beach, dispensary owners saw a possible silver lining in the ruling. The port city had been trying to regulate and permit a limited number of dispensaries for years. Officials held a lottery for the permits and pot shops each paid about $15,000 in fees.

Eighteen dispensaries were still working to comply with ever-changing rules, when a state appeals court decided the city could not regulate dispensaries because they violated federal law. The city changed course and banned them in August.

"It's been a roller-coaster," said Greg Lefian, 37, who closed his Chronic Pain Releaf in August. He and his partners had invested more than $400,000, mostly in building costs to comply with a city rule that all marijuana sold had to be grown in-house.

Now that the state's top court had made it clear that cities may regulate, he hopes that Long Beach will return to its original approach and he can reopen, he said.

But he's not betting on it. He and the other dispensaries -- banded together as the Long Beach Collective Assn. -- have gathered 43,000 signatures to put a measure on the city ballot that would call for permitting, regulating and taxing a limited number of dispensaries.

Assemblyman Tom Ammiano (D-San Francisco) said he hoped the ruling would spur legislators to action. He is sponsoring a bill to create a new agency to regulate medical marijuana.

The agency would set standards, require testing of marijuana, issue permits to dispensaries and impose a fee on marijuana growing and sales by July 1, 2014, to help pay for enforcement. The bill has passed its first committee test.

Another bill, by Senate President Pro Tem Darrell Steinberg (D-Sacramento), would protect cooperatives or other operators that meet security standards set by the state attorney general from being prosecuted for marijuana possession or sales. That bill awaits action on the Senate floor.

In two weeks, Los Angeles voters will face three competing initiatives that would allow different numbers of dispensaries to remain open. The city's attempts to regulate have spawned more than 60 lawsuits.

An attorney for one of the measures warned that if none of them passed May 21, the City Council might revive its previous efforts to ban dispensaries.

"The City Council may be emboldened by the Supreme Court ruling and may seek to prohibit medical marijuana dispensaries all together as they did just a few months back," said Bradley Hertz, who represents the backers of Proposition D.

One L.A. councilman who has been critical of dispensaries did not rule that out.

"This court ruling tells us that if chaos ensues once again ... we as a city have the authority to outright ban medical marijuana dispensaries," said Councilman Jose Huizar, who represents northeast L.A.

Last year, the council voted to ban the city's estimated 700 medical pot shops. It later repealed the ban after a group of dispensary supporters collected enough signatures to put a measure on the ballot to overturn it. There is now no law regulating pot shops on the books.

Alex Kreit, a professor at Thomas Jefferson School of Law in San Diego and an expert on medical marijuana, said Monday's decision failed to answer several questions still troubling lower courts. How large can a dispensary be? Must the pot be grown on site? What makes a dispensary nonprofit?

"It just confirms that localities have all the leeway in the world on this issue," Kreit said.

(c)2013 Los Angeles Times

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