Pubdate: Tue, 07 May 2013
Source: Los Angeles Times (CA)
Copyright: 2013 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Authors: Maura Dolan, Kate Linthicum and Joe Mozingo

JUSTICES BACK BAN ON POT DISPENSARIES

The State Supreme Court Unanimously Rules That Local Cities Can 
Rezone Cannabis Shops Out of Existence.

SAN FRANCISCO - The California Supreme Court gave local governments 
the power Monday to zone medical marijuana dispensaries out of 
existence, a decision that upholds bans in about 200 cities but does 
little to solve Los Angeles' years-long struggle to regulate hundreds 
of storefront pot outlets.

The unanimous decision provided clarity for cities and counties that 
want to rid themselves of the dispensaries, which sprouted up 
statewide after a 1996 voter-approved measure that sought to 
authorize medical marijuana but lacked specifics in how it would be regulated.

Now, attorneys on both sides of the issue say, many cities will be 
inclined to ban the pot outlets rather than allow a limited number 
and regulate them - a practice that has spawned expensive litigation 
up and down California.

"Only cities as liberal as Los Angeles will attempt to regulate," 
said Los Angeles Special Assistant City Atty. Jane Usher. "Unless you 
are a city that enjoys being in the litigation business, I think bans 
will become the order of the day."

The ruling by Justice Marvin R. Baxter underscored the state's lack 
of regulation of medical marijuana. Several lawyers described the 
decision as a call for the Legislature to step in and resolve the confusion.

The decision came in a test of a dispensary ban by the city of 
Riverside, which has shut down 56 cannabis operators since 2009.

With lower courts previously divided over the legality of the bans, 
some operators refused to obey them, including about a dozen in 
Riverside, said Riverside City Atty. Gregory Priamos.

Opponents of the ban said it was preempted by state law, which allows 
patients access to cannabis. But the court said such zoning 
ordinances were legal because neither the Legislature nor the voters 
had clearly barred them.

The ruling will make it easier for cities to persuade courts to 
sanction defiant dispensaries by issuing injunctions and fining and 
jailing operators who refuse to comply with them. Priamos said 
Riverside intended to make dispensary operators and property owners 
pay the city's legal costs in such cases.

But Priamos said cities would continue to enforce their bans and put 
pressure on operators.

"This battle is by no means over," he said. Dispensaries "pop up overnight."

Medical cannabis advocates lamented that patients in some parts of 
the state - the Central Valley and the northern reaches of California 
- - might now have to drive long distances to obtain marijuana legally. 
But they also said that most communities that wanted to ban 
dispensaries already have done so.

Although the ruling did not specifically state that retail sales of 
medical marijuana were legal - an issue that has vexed lower courts - 
the decision appeared to accept the existence of dispensaries.

"While several California cities and counties allow medical marijuana 
facilities, it may not be reasonable to expect every community to do 
so," Baxter wrote.

In Long Beach, dispensary owners saw a possible silver lining in the 
ruling. The port city had been trying to regulate and permit a 
limited number of dispensaries for years. Officials held a lottery 
for the permits and pot shops each paid about $15,000 in fees.

Eighteen dispensaries were still working to comply with ever-changing 
rules, when a state appeals court decided the city could not regulate 
dispensaries because they violated federal law. The city changed 
course and banned them in August.

"It's been a roller-coaster," said Greg Lefian, 37, who closed his 
Chronic Pain Releaf in August. He and his partners had invested more 
than $400,000, mostly in building costs to comply with a city rule 
that all marijuana sold had to be grown in-house.

Now that the state's top court had made it clear that cities may 
regulate, he hopes that Long Beach will return to its original 
approach and he can reopen, he said.

But he's not betting on it. He and the other dispensaries - banded 
together as the Long Beach Collective Assn. - have gathered 43,000 
signatures to put a measure on the city ballot that would call for 
permitting, regulating and taxing a limited number of dispensaries.

Assemblyman Tom Ammiano (D-San Francisco) said he hoped the ruling 
would spur legislators to action.

He is sponsoring a bill to create a new agency to regulate medical marijuana.

The agency would set standards, require testing of marijuana, issue 
permits to dispensaries and impose a fee on marijuana growing and 
sales by July 1, 2014, to help pay for enforcement. The bill has 
passed its first committee test.

Another bill, by Senate President Pro Tem Darrell Steinberg 
(D-Sacramento), would protect cooperatives or other operators that 
meet security standards set by the state attorney general from being 
prosecuted for marijuana possession or sales. That bill awaits action 
on the Senate floor.

In two weeks, Los Angeles voters will face three competing 
initiatives that would allow different numbers of dispensaries to remain open.

The city's attempts to regulate have spawned more than 60 lawsuits.

An attorney for one of the measures warned that if none of them 
passed May 21, the City Council might revive its previous efforts to 
ban dispensaries.

"The City Council may be emboldened by the Supreme Court ruling and 
may seek to prohibit medical marijuana dispensaries altogether as 
they did just a few months back," said Bradley Hertz, who represents 
the backers of Proposition D.

One L.A. councilman who has been critical of dispensaries did not 
rule that out.

"This court ruling tells us that if chaos ensues once again ... we as 
a city have the authority to outright ban medical marijuana 
dispensaries," said Councilman Jose Huizar, who represents northeast L.A.

Last year, the council voted to ban the city's estimated 700 medical pot shops.

It later repealed the ban after a group of dispensary supporters 
collected enough signatures to put a measure on the ballot to 
overturn it. There is now no law regulating pot shops on the books.

Alex Kreit, a professor at Thomas Jefferson School of Law in San 
Diego and an expert on medical marijuana, said Monday's decision 
failed to answer several questions still troubling lower courts. How 
large can a dispensary be? Must the pot be grown on site? What makes 
a dispensary nonprofit?

"It just confirms that localities have all the leeway in the world on 
this issue," Kreit said.
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MAP posted-by: Jay Bergstrom