Pubdate: Tue, 22 May 2012
Source: San Francisco Chronicle (CA)
Copyright: 2012 Hearst Communications Inc.
Contact: http://www.sfgate.com/chronicle/submissions/#1
Website: http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko

COURT UPHOLDS CITY'S RIGHT TO BAN POT DISPENSARIES

A city's ban on marijuana dispensaries doesn't violate federal 
disability law even though it may interfere with medical care for the 
disabled, a federal appeals court ruled Monday.

The Ninth U.S. Circuit Court of Appeals in San Francisco said it 
sympathized with a group of severely ill individuals who sought to 
preserve their "basic human dignity" by using pot to relieve their 
pain. But the court said the federal government's ban on marijuana 
contains no exemption for the disabled.

In fact, the court said in a 2-1 ruling, the Americans with 
Disabilities Act, the 1990 law that prohibits discrimination against 
the disabled, does not consider a user of illegal drugs to be disabled.

The case involves the Orange County communities of Irvine, which 
outlawed marijuana shops with a 2005 ordinance, and Lake Forest, 
which went to court to shut down its dispensaries in 2009. The 
California Supreme Court has agreed, in a separate case, to decide 
whether the state's medical marijuana laws allow cities and counties 
to ban dispensaries within their borders.

The case Monday involved disabled residents who had recommendations 
from their doctors to use marijuana to ease severe pain and claimed 
that the cities' bans on suppliers were discriminatory. The Obama 
administration joined in seeking dismissal of the suit.

The plaintiffs cited language in the ADA that allows someone who 
takes illegal drugs for a disabling ailment to be considered 
disabled, and therefore protected against discrimination, under 
specific circumstances: The drug must be "taken under supervision by 
a licensed health care professional," or it must be obtained for 
other uses authorized by the narcotics law or other federal laws.

The court said the law could be read to cover patients who used 
marijuana with their doctor's approval. But that interpretation would 
undermine federal narcotics laws that clearly prohibit all uses of 
marijuana, the court majority said.

Although the government's views on medical marijuana "may be 
evolving," said Judge Raymond Fisher in the majority opinion, "for 
now, Congress has determined that, for purposes of federal law, 
marijuana is unacceptable for medical use."

Judge Marsha Berzon dissented, saying the text and history of the ADA 
show an intent to allow doctor-approved use of marijuana. Even so, 
she said, a city's ban on pot dispensaries probably doesn't amount to 
illegal discrimination.
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