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California Supreme Court Speaks Out
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Posted by

Michael M. Levin, Esq.

on

May 7, 2013 - 1:05 pm

green-crossImage EnlargerCities Can Regulate or Ban Marijuana Dispensaries

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.”

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Posted by

Paula Jo

on

May 10, 2013 - 11:58 am

I live in the Los Angeles area and in the community that I live, in the 5 mile stretch of our main thoroughfare, we have, at last count, 16 medical marijuana dispensaries (“MMD”), many of which opened after the 2010 zoning regulation. Most of these dispensaries have ignored the laws in California and the City of Los Angeles (upheld in County of Los Angeles v. Hill). The Court of Appeal confirmed that cities can use local zoning authorities against MMDs that opened without proper county or city permits. Los Angeles MMDs may operate in a C-1 zone but are prohibited from opening within a 1,000 foot radius of schools, playgrounds, libraries, parks, childcare facilities, youth facilities and places of religious worship. Also see Health and Safety Code Sec. 11362.768.

On the upcoming May ballot there are several initiatives to help the City of Los Angeles regulate MMDs.

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Posted by

Erick

on

May 10, 2013 - 4:39 pm

I don’t smoke because it makes me forget things

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Posted by

BPL

on

May 13, 2013 - 11:37 am

Interesting article.  It begs a question for me:  Is the most local level of legislation the deciding factor, or the highest?  On the federal level the MMDs are illegal and federal authorities have raided several here in Los Angeles.  I have heard MMD advocates make it an issue of states’ rights, but what happens when something is then banned on a local level that is legal on the state level but illegal on the federal level?  There are other laws like this too, where the federal-state-local legislation is all completely incongruent.  How is a law abiding citizen supposed to know which legislation to rely on?  Or does this just create a legal gray area to be pushed by those on either side of the issue?  If the local legislators have the final say then why push the MMD issue on the state level at all? 

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Posted by

Max

on

May 13, 2013 - 5:41 pm

Definitely a good thing.  There are far too many dispensaries in the LA metro region and there isn’t nearly enough regulation.

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Posted by

Michael M. Levin, Esq.

on

May 14, 2013 - 8:51 pm

BPL said
Interesting article.  It begs a question for me:  Is the most local level of legislation the deciding factor, or the highest?  On the federal level the MMDs are illegal and federal authorities have raided several here in Los Angeles.  I have heard MMD advocates make it an issue of states’ rights, but what happens when something is then banned on a local level that is legal on the state level but illegal on the federal level?  There are other laws like this too, where the federal-state-local legislation is all completely incongruent.  How is a law abiding citizen supposed to know which legislation to rely on?  Or does this just create a legal gray area to be pushed by those on either side of the issue?  If the local legislators have the final say then why push the MMD issue on the state level at all? 

The City of Riverside v. Inland Empire Patients Health and Welfare Center, Inc. case we are talking about doesn’t make the distinction you raise.  The California Supreme Court narrowed the issue down to whether a local municipality’s inherent right to control land use, i.e., zoning laws, somehow usurped the State’s superior legislative powers.  They decided that it didn’t, because state law said nothing about limiting local zoning powers.

If a city or county were to try to pass a law criminalizing medical marijuana, it would conflict with state law and would be struck down.  However, this decision establishes that municipalities have the right to decide where (if at all) within their borders medical marijuana dispensaries may be located.  This is similar to the way that state law sets minimum standards for alcoholic beverage sales, but specifically allows municipalities to enact more stringent regulations.  See Business and Professions Code sec. 25612.5(b).

As far as the conflict with federal law, that didn’t really enter into the picture as far as this ruling.  California has chosen to legalize something under state law which is illegal under federal law.  That simply means that police and sheriffs in California (who enforce California law) have no power to prosecute people for medical marijuana activities.  However, the DEA and FBI can still do so under federal law.

As a law abiding citizen, know this: if the city or county you’re in permits it, there can be marijuana dispensaries.  They would be legal under both local and state law.  If the city or county you’re in bans dispensaries, then it is illegal for them to operate in that city or county.  However, it has no effect on medical marijuana patients’ right to possess medical cannabis under state law.  Either way, dispensaries are illegal under federal law.

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