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Tuesday, July 3, 2012

California Appeals Court Strikes Down Medical Marijuana Dispensary Bans

Posted By on Tue, Jul 3, 2012 at 4:07 PM

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Medical marijuana dispensaries are protected under California state law, and cities and counties have no right to ban cannabis collectives outright, according to a state Court of Appeals ruling released Monday.

The decision invalidates a ban on dispensaries in Los Angeles County, which was enacted in 2010. The decision may also strike down bans enacted in the Bay Area, in places like Danville, Daly City, and San Leandro.

L.A. County may appeal the decision to the state Supreme Court, an attorney said today. In the meantime, cannabis users' advocacy group Americans for Safe Access hailed the court's recognition of dispensaries as legal as a "landmark" ruling.

As we previously reported, Los Angeles city and county officials waited until "hundreds" of dispensaries had opened for business before deciding how to control or regulate the situation.

The county's solution was to ban dispensaries outright, a decision made in December 2010. In spring 2011, county counsel sued Alternative Medicinal Cannabis Collective, which had been operating in defiance of the ban in an unincorporated area of the county near Covina.

County attorneys argued that state medical marijuana law, including 1996's Proposition 215, did not prohibit counties or cities from enacting blanket bans on dispensaries. The attorneys also alleged that the dispensary was operating in violation of state law, though did not specify how.

In throwing out the ban, the Appeals Court noted that L.A. County's ban was "premised entirely on the conclusion that [it] was not preempted by state law," a conclusion the court roundly destroyed. The state Legislature "expressly authorized" dispensaries "as a lawful means to obtain medical marijuana under California law," the court wrote.

"[T]he repeated use of the term 'dispensary' throughout [Health and Safety Code section 11362.768] and the reference in subdivision (e) to a 'storefront or mobile retail outlet' make it abundantly clear that the medical marijuana collectives authorized by section 11362.775 are permitted by state law to perform a dispensary function," the Court wrote.

As for the question of whose law is the real law, the court cited several instances in case law where state law trumps local.

It's worth noting that county attorneys sought to shut down the dispensary in civil court, not criminal, on the basis that it constituted a nuisance. The court also ruled that state medical marijuana law prohibits such "nuisance" shutdowns in the absence of other factors, such as crime or, you know, an actual nuisance other than legal weed.

L.A. County hasn't yet decided how to proceed, according to Prinicipal Deputy County Counsel Sari J. Steel, one of the attorneys who argued the case before the Court of Appeals.

"We respectfully disagree with the court's ruling, but we're still reviewing the opinion," she said Tuesday, saying that the option is open to appeal to the Supreme Court.

Steel refused to comment further, saying, "I've been receiving a lot of calls."

The ban affected parts of Los Angeles County not incorporated into cities. Cities in Los Angeles County -- like Los Angeles proper -- are also considering banning dispensaries. These considerations may be abandoned.

The case could also impact other medical marijuana-related court cases currently under review, such as Pack v. City of Long Beach. That case is currently before the state Supreme Court.

"The court of appeal could not have been clearer in expressing that medical marijuana dispensaries are legal under state law, and that municipalities have no right to ban them," said attorney Joe Elford, Americans for Safe Access's top lawyer. "This landmark decision should have a considerable impact on how the California Supreme Court rules in the various dispensary cases it's currently reviewing."

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About The Author

Chris Roberts

Bio:
Chris Roberts has spent most of his adult life working in San Francisco news media, which is to say he's still a teenager in Middle American years. He has covered marijuana, drug policy, and politics for SF Weekly since 2009.

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