Bob McPhail 1:30 p.m., Nov. 30
State Supreme Court grants cities the authority to ban Medical Marijuana dispensaries
Today's decision states that citywide zoning restrictions are not in violation of Compassionate Use Act
Call it a blow, a hit, a pot shot, regardless of which clever play on words you choose, all describe today's ruling from the California State Supreme Court that allows city officials to ban Medical Marijuana dispensaries from their city.
"The issue in this case is whether California‘s medical marijuana statutes preempt a local ban on facilities that distribute medical marijuana. We conclude they do not," reads the first line of the opinion filed at 10am on Monday morning.
We have consistently maintained that the [Compassionate Use Act] and the [Medical Marijuana Program] are but incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed. They merely declare that the conduct they describe cannot lead to arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the Health and Safety Code. Nothing in the [Compassionate Use Act] or the [Medical Marijuana Program] 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. We must therefore reject defendants‘ preemption argument, and must affirm the judgment of the Court of Appeal.
In their decision, the judges leaned heavily on the federal Controlled Substances Act that prohibits the distribution, manufacture, and possession of marijuana, be it for medical use or not.
The ruling comes nearly four years after the City of Riverside filed a nuisance action against the Inland Empire Patients Health and Wellness Center, Inc. for operating within city limits. The issue then landed in court, and then in the court of appeals. And although the appellant court agreed that federal laws against use and possession of marijuana do not preempt state law, they also ruled that zoning restrictions, such as those implemented by Riverside officials, are not attempting to trump state law and, in fact, do not.
The issue over zoning restrictions for Medical Marijuana dispensaries, of course, is also playing out in San Diego where just last week city councilmembers rejected a proposal from the mayor's office to improve access for patients. City councilmembers chose instead to revisit an earlier ordinance, one that was largely seen by activists and patients as a de facto ban.
City Attorney Jan Goldsmith issued the following statement shortly after the decision was announced:
“Today, the California Supreme Court has upheld the legal position taken by our office for nearly two years. Cities have the right to decide whether to allow marijuana dispensaries to operate within their borders. As I first said in September,2011, and have reiterated dozens of times, there are no marijuana dispensaries operating legally in San Diego because our zoning laws do not allow for them.
In 2011 and 2012, our office filed civil lawsuits against some 100 dispensaries. We won every one of them on the grounds that dispensaries are not allowed under San Diego’s existing zoning. This resulted in the closure of most dispensaries in our city.
This California Supreme Court decision demonstrates that our office’s interpretation of the law, which has been upheld by local Superior Court Judges, is sound.
If the City Council wants to allow dispensaries to locate in San Diego, they may do so. But, they are not required to do so.”
Go here to read the decision from the State Supreme Court:
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- Medical marijuana co-op manager's conviction overturned — Oct. 25, 2012
- Former Medical Marijuana Dispensary Manager Files Appeal — Nov. 23, 2011
- Mr. Castaneda Goes To Oaksterdam — July 22, 2009