Uploaded: Wednesday, February 6, 2013, 12:31 PM
State high court appears inclined to allow cities to ban marijuana dispensaries
21 East Bay cities have medical marijuana bans
|California Supreme Court justices at a hearing in San Francisco Tuesday appeared likely to rule that cities in the state have the right to ban medical marijuana dispensaries within their borders. The decision may affect Danville, which passed such a ban in 2011.
"The Legislature knows how to say, 'Thou shalt not ban dispensaries,'" Justice Ming Chin told a lawyer for a dispensary in the city of Riverside.
"They did not say that," Chin said.
The Riverside dispensary, known as the Inland Empire Patient's Health and Wellness Center, is challenging a city zoning law that prohibits such facilities.
While the case concerns one dispensary, the court's eventual ruling will affect cities and patients' access to marijuana throughout the state. The Danville Town Council unanimously voted to adopt and extend its original 2009 medical marijuana ban in September 2011; the added section 32-94 of the Danville municipal Code bans medical marijuana dispensaries within Danville town limits.
The ban will prohibits dispensaries and forbids conditional land use permits, variances or licenses for distribution. Town officials cited reports that crime increases in cities with medical marijuana dispensaries and deemed the ban necessary to protect the public health and welfare of Danville residents.
"I have not heard from anyone in the community that we should open a dispensary," then-Vice Mayor Candace Andersen said. "Quite the contrary, I have heard great opposition in our local blogs."
More than 180 California cities and 20 counties currently ban dispensaries, according to Kris Hermes, a spokesman for the advocacy group Americans for Safe Access. Ten counties and 44 cities, including San Francisco, Oakland, Berkeley and Santa Rosa, have regulations allowing them.
The court's seven justices took the case under submission after hearing an hour of arguments at a special session held at the University of
San Francisco Law School to commemorate the school's 100th anniversary. The panel now has 90 days to rule.
The Inland Empire Center contends that two state laws that allow the use of medical marijuana and set guidelines for regulation mean that cities can regulate but not prohibit marijuana dispensaries.
"Land-use regulation does not give cities the power to ban what state law makes lawful," dispensary attorney J. David Nick argued to the court.
But Jeffrey Dunn, a lawyer for Riverside, argued that the state laws merely exempt certain patients and caregivers from prosecution and don't interfere with local governments' power to pass zoning measures to protect public health and safety.
Several of the justices appeared inclined to agree.
"The core of the case to me is really land use regulation and...the power invested in municipalities to regulate land use," said Chief
Justice Tani Cantil-Sakauye.
Justice Joyce Kennard suggested that cities' land-use authority is more fundamental than the state medical marijuana laws because the zoning authority derives from the state Constitution.
"It is a pre-existing power, an extension of the police power," she said.
The two state laws are the voter-approved Compassionate Use Act of
1996, which protects seriously ill patients who use marijuana with a doctor's permission from being prosecuted; and the Legislature's 2003 Medical Marijuana Program Act, which sets guidelines for implementing the earlier law.
Justice Goodwin Liu told Nick, "The language (of the laws) doesn't seem to get you very far.
"This is a kind of limited liability" from state prosecution, Liu said, but "it says nothing about immunity from local sanctions and prohibitions."
Justice Kathryn Werdegar commented, however, that the purpose of the laws is to make marijuana available as a medicine, and said, "If all counties ban it, that purpose is thwarted."
Danville is one of 21 East Bay cities with a medical marijuana prohibition; other Contra Costa cities include Antioch, Brentwood, Concord and Lafayette. Dublin and Livermore also have bans.
Jessica Lipsky contributed to this article
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Posted by [Removed due to disrespectful comment ], a resident of San Ramon, on Feb 7, 2013 at 10:09 am
Pot dispensaries bring crime and lowlifes. We don't need anyone buying their pot here in TriValley! The Dirkarino would appreciate it if the weasels politicians would keep this goat poop out of our neighborhoods at any cost.
The argument for legalization is strong, but the rules and laws need to be well organized before it is mainstreamed by the FEDS and Calif.. Washington and Colorado are struggling, because the laws on the books don't fit the situation.
The Feds will eventually have to deal with changing perceptions of the drug. The Dirka does not bang the gong, but understands the medical need for some and understands that others are exploiting loopholes. TV programs are devillainize the wacky tobaci, so itís just a matter of time before the FEDs leave it up to the States.
The problem will be once it's legal, people will grow it in their back yards next to their tomato plants. The next thing that will happen is that teenagers will hop fences and swipe the plants - - not good. Austrailia makes people grow it indoors.
The Dirka wants to invest in any company making breathalyzer technology for THC.
Dirka Dirka Bakala