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MEDICAL MARIJUANA: Court rulings leave both sides uncertain of clinic bans

16 Apr

Advocates and opponents of California’s medical marijuana clinics are in a legal no-man’s land after a flurry of appellate court decisions that contradict each other on whether local governments can ban the dispensaries.

The decisions also conflict on how the clinics can supply themselves with marijuana.

“We have had a potpourri of various court rulings, and they’re all conflicting,” said Lanny Swerdlow, a registered nurse and board member of a Riverside-based Inland Empire Patient’s Health and Wellness Center.

“We have had one 4th District Court branch say cities can ban; we have had another 4th District Court branch saying ‘no,’ cities can’t ban; We’ve had the 2nd District court say you are allowed to transport, whereas the 4th District Court said you can’t transport – it’s just a total disaster,” he said.

The whipsaw of court rulings leave more than 200 cities that have instituted bans of medical marijuana clinics — as well as the clinic operators and patients who use them — uncertain of where they will land when the law gets settled.

The battle is over whether local governments can preempt the state laws governing medical marijuana clinics – the state’s 1996 Compassionate Use Act (Prop. 215) or the state Legislature’s Medical Marijuana Program.

Clinic advocates say local governments disregard state law by banning the clinics; attorneys for the counties and cities say they are within their right to use zoning laws to ban the dispensaries.

The courts’ north-and-south pole rulings are likely because of a lack of clarity in the laws, said Stanford Law School professor Robert Weisberg.

“Clearly the problem here is that there is some language in the medical marijuana laws that some people think is a little ambiguous,” he said. “That might invite municipalities to use local zoning laws that restrict or forbid the clinics, and there seems to be some ambiguities about that.”

The Riverside decision cites, “Where, as here, there is no clear indication of preemptive intent from the Legislature, we presume Riverside’s zoning regulations…are not preempted by state law,” Associate Justice Carol Codrington wrote.

A ruling regarding the City of Long Beach took another turn. The coastal city decided it would allow dispensaries, but wanted to regulate them with its own ordinances. A court decided that the city could not make such rules because under federal law, marijuana is illegal.

The latest twist in the dispensary legal saga came Feb. 29, when the 4th District Court of Appeal based in Santa Ana ruled that the City of Lake Forest in Orange County could not ban medical marijuana dispensaries.

That came after a series of rulings that favored cities and counties exerting greater local control over the clinics, topped by a decision by the 4th District Court in Riverside’s November ruling that local governments could ban the dispensaries outright, said John Higginbotham, an attorney with the Riverside-based law firm of Best Best & Krieger. The law firm has represented several cities in the legal fight to ban the clinics.

“The Lake Forest decision was kind of a surprise to many people,” Higginbotham said. “It’s hard to reconcile all those previous cases with that.”

The Riverside decision was vacated when the state Supreme Court in January took it and three other medical marijuana cases to eventually rule on the already tumultuous legal structure of California’s medical marijuana laws.

Attorneys for Lake Forest have petitioned to the state high court to take their case as well; but for now the published decision, which says local governments cannot ban the clinics, is the only effective one in the state.

And that left a new tear in the legal fabric for the more than 200 local governments that now have laws banning medical marijuana dispensaries, an estimate from the Coalition for a Drug-Free California, a group that opposes the clinics.

In March, a Shasta County Superior Court judge denied the City of Redding’s bid for a court order to shut down dispensaries in that city. The judge cited the Lake Forest case.

Redlands attorney James De Aguilera, who represents several clinics, says he has started sending legal challenges called demurrers on behalf of his clients to cities that banned the dispensaries. The demurrers cite the Lake Forest case, and say that ruling leaves the cities trying to ban clinics without jurisdiction to do so.

De Aguilera said he has filed on behalf of two clinics in Upland and one in Jurupa Valley.

“There is going to be a lot of activity,” he said. “Lake Forest is the law of the land right now.” De Aguilera added that he expects the Supreme Court will take the Lake Forest case and vacate it as well. But until then, he said, “The city clerk has a duty to issue business licenses. If they law changes again, we’ll already have our business licenses. That is our plan.”

And there’s another twist: the Lake Forest decision, while saying cities and counties could not ban dispensaries, also ruled that each dispensary must grow all their marijuana on location. Dispensary advocates said that part of the ruling guarantees to shut down most operations.

“That would put 98 percent of the collectives out of business,” Swerdlow said.

But Higginbotham of BB&K said it would only end small outlets and allow dispensary operators with big money to open storefronts attached to warehouse-sized operations, to comply with the court ruling.

But it’s not a settled issue. A few days before the Lake Forest decision, a Los Angeles appellate court ruled in a criminal case that it was not illegal for a man to bring a pound of marijuana from one medical marijuana establishment to another, in this case from Humboldt County to Los Angeles.

How that sets with the civil ruling saying dispensaries have to home-grow all their supply is unclear, like much of the rulings regarding medical marijuana.

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