Pubdate: Tue, 05 Feb 2013
Source: San Jose Mercury News (CA)
Copyright: 2013 San Jose Mercury News
Contact:  http://www.mercurynews.com/
Details: http://www.mapinc.org/media/390
Author: Howard Mintz

POT BATTLES REIGNITING

High Court Of California To Take Up Provider Bans

California's experiment with medical marijuana has sparked a hazy
version of the old Not-in- My- Backyard syndrome.

 From Hollister to Antioch, from Scotts Valley to Petaluma, from
Seaside to Moraga, city after city has banned medical marijuana
dispensaries, sending a message that even the sickest of patients must
go elsewhere for that state-permitted dose of prescribed medical weed.

But on Tuesday, this fear- and loathing approach to outlawing medical
pot providers will face an unprecedented test in the California
Supreme Court. The seven justices are to hear arguments on whether
local governments can ban the dispensaries in view of the state's 1996
voter- approved law legalizing pot for medical use.

The case involves the Inland Empire Patients Health and Wellness
Center, which more than two years ago sued to block Riverside's
dispensary ban, arguing that cities and counties cannot bar activities
legal in California. A state appeals court sided with Riverside, and
now the Supreme Court, faced with similar legal tangles across the
state, has jumped into the fray.

The stakes are high in California's ongoing struggle pitting medical
marijuana advocates against cities worried about problems associated
with some of the dispensaries, such as lax control over the
distribution of a drug that remains illegal under federal law.

"The Riverside case is a fascinating example of our ' laboratories of
democracy' in action," said Julie Nice, a law professor at the
University of San Francisco, where the Supreme Court will hear the
arguments. "It illustrates the difficulties created when each level of
government ... stakes out a different regulatory position on a
controversial subject."

The Bay Area, like the rest of California, is divided on the issue.
San Francisco, San Jose, Oakland and Richmond have allowed certain
numbers of dispensaries, even taxing their revenues, while large
swaths of the region are dispensary-free zones.

Overall, there are at least 180 local government bans on medical
marijuana dispensaries in California, about three dozen of them in the
Bay Area, according to the marijuana advocacy group Americans for Safe
Access. And that does not include moratoriums and regulations such as
zoning limits, which medical marijuana supporters agree can be enforced.

Antioch and Pittsburg just recently approved bans, and Palo Alto
voters in November rejected a ballot measure that would have allowed
up to three dispensaries in the city. As a result, Peninsula residents
for the most part have to travel to San Jose or San Francisco for
medical cannabis.

Riverside, backed by groups such as the League of California Cities,
argues that local governments have strong rights to regulate land uses
in their boundaries, particularly an unusual land use such as a
medical pot dispensary.

"Cities and counties may decide that a particular land use activity or
business is not appropriate for a particular community, even though
that activity is not illegal under state law," said Stephen McEwen, a
lawyer for the cities.

Riverside banned dispensaries under its nuisance laws. Other cities
have taken different approaches; Hercules five years ago approved a de
facto ban with an ordinance forbidding any land use barred by either
state or federal law.

Yet Hercules has not enforced its ban against the Hercules Health
Center, which has operated in a business park in the East Bay city for
several years. Patients such as Terri Holloway, a Hercules resident,
say the center provides a safe environment close to home to get
medical weed, which she uses after having multiple heart attacks and a
stroke.

Medical marijuana advocates say the bans undermine the intent of the
state law, which they argue was meant to provide uniform access to
medical cannabis across the state for certain patients, such as those
fighting cancer or AIDS.

Instead, the bans result in a patchwork that critics say forces
seriously ill people to jump in a car to get to dispensaries, or seek
the drug on the black market. "The ones who need it the most are the
ones who are affected the most," said Douglas Chiopek, who heads San
Jose's MedMar Healing Center.

David Nick, who is representing the Riverside dispensary, flatly
predicts he'll win in the Supreme Court because cities "cannot ban
what a state law makes lawful."

But legal experts say the Supreme Court may be reluctant to strip
cities of the right to enact the bans, likening the situation to
states that permit counties to be "wet" or "dry" in allowing alcohol
sales.

"It is really unusual for a locality to try to outright ban something
that is legal under state law," said Alex Kreit, a Thomas Jefferson
School of Law professor who advised San Diego on its medical pot
regulations. "But I still think it's going to be an uphill battle for
the medical marijuana argument in this case." 
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