Wednesday, September 30, 2009
Claremont Appeal Held; Cities Can Ban Medical Marijuana Dispensaries
REGION: State appeals court upholds LA city's dispensary ban
Decision could have widespread significance, attorney says
EDWARD SIFUENTES - esifuentes@nctimes. com
Posted: Monday, September 28, 2009 5:30 pm
In a legal blow to medical marijuana advocates, a state court ruled last
week that local governments can ban medical marijuana dispensaries from
setting up shop in their jurisdictions.
The state's Second District Court of Appeal said in its decision that
the city of Claremont in Los Angeles County could ban dispensaries
without violating the state's medical marijuana laws. Those laws include
the 1996 Compassionate Use Act, which legalized marijuana for medical
use, and the 2004 Medical Marijuana Program Act, which lets people
cultivate marijuana collectively.
That is because neither law "compels the establishment of local
regulations to accommodate medical marijuana dispensaries, " according to
the court's ruling.
The Sept. 22 opinion could have wide-ranging implications for cities and
counties statewide, including San Diego County and other cities in the
region that are drafting new ordinances to regulate medical marijuana
dispensaries, said an attorney involved in the case.
"What this court said is that if you are arguing that a city cannot ban
a dispensary, that argument is no longer valid," said Jeffrey Dunn, a
San Diego attorney who represented the city of Claremont in the case.
Several cases are moving though the state's court system addressing
various legal questions on what cities and counties can and can't do to
San Diego County officials and medical marijuana activists said they are
especially watching a case involving the city of Anaheim in Orange
Some medical marijuana activists say they believe the county is closely
following the Anaheim case because the supervisors here want to
permanently ban medical marijuana dispensaries, not regulate them.
Supervisor Pam Slater-Price has said she would be willing to ban
dispensaries in the county. Other supervisors have declined to say
whether they would support such a ban, but the majority of the board has
been outspoken opponents of the state's medical marijuana laws.
In 2006, the supervisors filed a lawsuit to overturn the state's 1996
medical marijuana law. The supervisors unsuccessfully challenged the law
all the way to the U.S. Supreme Court, which declined to hear an appeal
Earlier this month, the supervisors extended a temporary ban on
dispensaries through August 2010. Some medical marijuana foes called for
an outright ban on the establishments, which they contend promote teen
drug use and attract crime into neighborhoods.
The Anaheim case, which was heard last week by the Fourth District Court
of Appeal, has attracted widespread attention among medical marijuana
activists and local governments. If the court upholds the ban, it may
encourage other cities and counties to ban dispensaries, medical
marijuana activists say.
A ruling is expected in the Anaheim case within 90 days.
Joe Elford, an attorney with the medical marijuana advocacy group
Americans for Safe Access, said the two cases are different. That's
because the Anaheim law not only bans dispensaries, but makes it a crime
to operate them.
"Unlike the Anaheim case, the Claremont case does not involve criminal
penalties ... so I don't think it will impact the Anaheim case," Elford
The Second Court of Appeals also did not analyze in detail whether the
Claremont law pre-empts the state's medical marijuana program, Elford
said. Pre-emption is a legal term meaning that when laws conflict, the
law from the higher jurisdiction supersedes the lower one.
Dunn said he agreed that the criminal aspect of the Anaheim law makes it
different from the Claremont case. But he said he disagreed that the
court did not significantly consider the question of pre-emption.
The opinion thoroughly analyzed state preemption law and determined that
cities and counties can retain their power to regulate and, if
necessary, restrict dispensaries in their jurisdiction, Dunn said.
Call staff writer Edward Sifuentes at 760-740-3511.
http://www.nctimes. com/news/ local/sdcounty/ article_82a043af -1c2c-5226- 84\