Important 4th Circuit Decision Out of Anaheim Expected in 90 Days!

Court hears arguments over medical-marijuana ban

Patients want appeals court to revive lawsuit that challenged Anaheim's
ban on pot dispensaries.

By RACHANEE SRISAVASDI
The Orange County Register

Wednesday, September 23, 2009

SANTA ANA – Several medical marijuana patients attended a state
appeals court hearing Wednesday that could determine the legality of
city ordinances that have banned medical marijuana dispensaries.

The 4th District Court of Appeal heard arguments in the case of
Qualified Patients Association – a group of such patients – vs.
the City of Anaheim, which approved an ordinance in July 2007 that
forbids the outlets and makes operators subject to criminal prosecution.
The patients group wants the appeals court to resurrect their lawsuit,
which was dismissed by a lower court judge.

"Our alternative is to get (marijuana) from a gang member or cartels,''
said Marla Jones of Huntington Beach, who said she uses marijuana to
relieve pain from flesh-eating bacteria. "That's what cities are pushing
us to do."

"It's really sad that cities are encouraging the black market,'' added
her husband, David, who said he uses medical marijuana for leg pain.

The couple cannot buy medical marijuana in their hometown of Huntington
Beach – which is one of several Orange County cities to ban
dispensaries.

At issue is a conflict between federal, state and local laws. Federal
law deems all marijuana use criminal, but the state allows its use for
medicinal purposes.

In 1996, California voters approved Proposition 215, also known as the
Compassionate Use Act, which decriminalized the use of marijuana for
medicinal purposes. The state legislature in 2003 established the
Medical Marijuana Program (MMP), which allows cards to be issued to
qualified patients and their caregivers.

But since then, cities have passed ordinances forbidding such
dispensaries – like the city of Anaheim.

"It's essentially a criminal ordinance that criminalizes legal
conduct,'' said Anthony Curiale, an attorney for the medical marijuana
patients, of Anaheim's ordinance.

Joe Elford, an attorney for Americans for Safe Access, a national
medical-marijuana advocacy organization, told the three-judge panel that
hundreds of cities are waiting for the court's decision in this case to
determine the legality of banning such dispensaries.

Several cities in Orange County have filed briefs in support of Anaheim,
including Costa Mesa, Cypress, Fullerton, Garden Grove, Newport Beach,
Orange, Placentia, Tustin and Westminster, according to the group.

"There is a lot of uncertainty here in the state … and we seek
guidance,'' Elford said.

But, one of the justices, William F. Rylaarsdam, noted that the appeals
court is limited to ruling on the question before it – whether a
Superior Court judge should have granted a motion by Anaheim to throw
out the lawsuit.

"I'm a little uncomfortable to be in the guidance business,'' Rylaarsdam
said.

As for the city of Anaheim, it wants the appeals court to uphold the
lower court's ruling that dismissed the patients' lawsuit.

Assistant City Attorney Moses Johnson criticized the state program that
set up the dispensaries "a bad state law" and said he believes the law
does not pre-empt the city's ordinance.

He also told the panel the Anaheim City Council decided to ban
dispensaries partly because they were allowing recreational drug use.

"We're only banning dispensaries. We didn't ban all medical marijuana
use,'' he added.

But, Justice Richard M. Aronson pointed out the ordinance – which
defines dispensaries as any location that dispenses medical marijuana to
three people or more – could apply to a family.

"It seems to criminalize the actions of a parent,'' who may give
marijuana to his cancer-ridden child, he said.

Johnson replied the judges had the option of striking the criminal
penalty clause from the city's ordinance.

A ruling is expected within 90 days.

Contact the writer: 714-834-3773 or rsrisavasdi@ ocregister. com

http://www.ocregist er.com/articles/ marijuana- medical-court- 2578591-city- \
dispensaries



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