Inland Empire Medical Marijuana News

Medical pot war shifts to battle over dispensaries

10:00 PM PDT on Sunday, October 18, 2009

By DUANE W. GANG
The Press-Enterprise

Inland cities are embracing a recent court decision that they believe
gives them authority to ban medical marijuana dispensaries -- often
storefront operations where the drug is sold to patients with a doctor's
recommendation.

Officials across the region have struggled to decide whether to allow
the businesses.

In the last month alone, at least three cities -- San Bernardino,
Yucaipa and Loma Linda -- have approved bans or moratoriums and more are
set do so in the coming weeks. Calimesa is set to debate the issue
today.

A state appellate court decision, stemming from a Claremont case,
published late last month concludes that California's medical marijuana
law does not supersede the authority of a local city or county to use
zoning laws to regulate dispensaries.

"The key thing about this case is it is up to the city and counties,"
said Jeffrey Dunn, the attorney who represented the city of Claremont in
the case.

"Cities now have this guidance," he said.

Voters approved the Compassionate Use Act in 1996 allowing medical
marijuana. Patients can obtain identification cards that prove they have
a valid recommendation and help them avoid criminal prosecution. Federal
drug laws prohibit the possession and use of marijuana, and users could
still face charges.

Debate has grown across the state on whether to allow dispensaries,
collectives and co-ops that provide patients with the drug. A 2003 state
law allows collective cultivation for medical marijuana but not for a
profit.

Medical marijuana advocates argue that patients need easy access to the
drug to help treat pain and other chronic illnesses such as glaucoma and
cancer.

But local officials have feared that dispensaries could pose a nuisance,
increase crime and raise other public safety concerns.

Authorities in Los Angeles, for instance, have announced a crackdown on
dispensaries they say are illegally operating, selling marijuana for a
profit and to healthy residents.

Guidance given

The Claremont case stemmed from a dispensary opening without proper city
permits.

The city imposed a moratorium while officials studied whether to allow
dispensaries. The city's laws did not specifically allow a dispensary
and the owner, Darrell Kruse, argued the state's medical marijuana law
requires cities to allow the businesses.

The Second District Court of Appeal in Los Angeles concluded that cities
can ban dispensaries through zoning laws. The court published its
Claremont decision late last month. The case was closely watched by
local governments.

Dunn, of the Riverside-based law firm Best, Best & Krieger, said the
decision already is being cited by other courts.

It was of particular interest to the city of Riverside, which sent a
letter to the court in September specifically asking that it publish the
opinion. A published opinion can be cited as precedent by courts
throughout the state.

On Friday, a medical marijuana collective had planned to open in
Riverside. The collective planned to grow marijuana and distribute it to
the group's members.

Organizers postponed the opening, fearing its members would face arrest
or the collective would be shut down by local authorities.

Lanny Swerdlow, an activist and registered nurse, is heading the
collective.

He said organizers believed Riverside police, in connection with the
district attorney's office and the city, would arrest members on
suspicion of possessing marijuana for sale or close the collective
through a city municipal code that prohibits medical marijuana
dispensaries.

Riverside police declined to comment and referred calls to City Attorney
Greg Priamos. Priamos did not return repeated telephone calls Thursday
and Friday. Officials with the district attorney's office referred to a
10-page document on the office's Web site calling cooperatives illegal.

Swerdlow said he hopes to work with local authorities and open the
collective Friday.

Calimesa Mayor Jim Hyatt said last week the recent Claremont court case
makes for an easier decision. Council members will have the legal
authority should they decide to vote for a moratorium today.

"We have to address this issue," said Hyatt, who is surveying other
Riverside County cities with dispensaries to see if problems have
arisen. "We will listen to all the sides."

Loma Linda extended the city's moratorium until at least next year to
give officials time to craft a law. City Attorney Richard Holdaway said
the court cases help put him at ease with whatever decision the City
Council ultimately makes.

Loma Linda does not have any dispensaries, but has had people express
interest in establishing them in the city, Holdaway said.

Medical marijuana advocates expect the Claremont case to be appealed to
the state Supreme Court.

Ryan Michaels is director of the Inland Empire Patients Group's
Bloomington co-op where patients can receive medical marijuana.

Michaels said the court's decisions were political. Moratoriums are
stalling tactics by local officials who do not want to address the
issue, he said. "A lot of cities aren't sure how to deal with this, and
that is understandable, " he said.

But Michaels said he is worried about cities not moving quickly to
decide whether to allow the businesses.

Claremont fight

In the Claremont case, Kruse argued the dispensary could have been
categorized in a number of city zones that allow uses such as cigar and
smoke shops, food/drug and kindred products, health and herbal stores,
pharmacies, counseling and even philanthropic organizations.

Writing for the court, Justice Victoria Chavez said the state's medical
marijuana initiative does not pre-empt local land-use laws.

"The CUA (Compassionate Use Act) does not authorize the operation of a
medical marijuana dispensary, nor does it prohibit local governments
from regulating such dispensaries, " she wrote. "Rather, the CUA
expressly states that it does not supersede laws that protect individual
and public safety."

The court further ruled that Claremont could legally impose a moratorium
until it could complete studies on the issue.

Dunn said he did not argue the validity of the state's medical marijuana
program, which conflicts with federal drug laws. San Bernardino and San
Diego counties challenged the state measure on those grounds but lost.
The U.S. Supreme Court earlier this year declined to hear the counties'
appeal.

"We are not going to get into that argument. As cities and counties, we
have the ability to zone and decide where businesses can be located,"
Dunn said. "Unless we provide for them in our zoning, they are not an
allowed use."

Staff writer Leslie Parrilla contributed to this report.

Reach Duane W. Gang at 951-368-9547 or dgang@PE.com

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