|Photo: Laurie Avocado|
Are California cities legally allowed to ban medical marijuana dispensaries? We may soon find out.
Legal briefs were filed Tuesday by patient advocates Americans for Safe Access (ASA) and California State Senator Mark Leno (D-San Francisco) in an appellate court case that is expected to decide whether local governments can ban storefront distribution of medical marijuana.
Although more than 40 localities have adopted ordinances regulating medical marijuana dispensing collectives, or dispensaries, more than 120 cities have permanently banned such businesses.
The case Qualified Patients Association v. City of Anaheim was supposed to be decided in December by California’s Fourth Appellate District Court, but further briefing was requested.
The court is now seeking clarification on whether the Legislature meant to prevent local governments from using nuisance statutes to outlaw storefront medical marijuana distribution.
|Photo: Bev Sykes|
|State Sen. Mark Leno: “To permit [dispensary bans]would undermine the expressly stated intent of the legislation”|
”The clear intent of the [Medical Marijuana Program Act] in providing an exemption under the nuisance law was to preempt local ordinances and enforcement efforts based on nuisance law of any kind,” said the support (amicus) brief filed by Senator Leno in his personal capacity.
“To permit otherwise would undermine the expressly stated intent of the legislation,” Sen. Leno’s brief said.
As an Assembly member at the time, Leno was one of the principal co-authors of SB 420, the Medical Marijuana Program Act of 2003, which enlarged and clarified California’s original medical marijuana law, passed by voter initiative in 1996.
ASA concurred with Leno’s assertion and wrote in its own support brief that state law was drafted to stop local efforts to ban medical marijuana collectives.
|Joe Elford, ASA: “Local governments cannot simply ban an activity that has been deemed lawful by the state”|
”The City of Anaheim cannot hide behind federal law,” said ASA Chief Counsel Joe Elford.
“Local governments cannot simply ban an activity that has been deemed lawful by the state,” Elford said.
ASA previously filed a brief in the Anaheim case, which argued that under state law local officials have an obligation to allow for the operation of lawful dispensaries. Oral arguments concurred in September.
The plaintiff, Qualified Patients Association (QPA), filed a lawsuit after Anaheim adopted a ban on dispensaries in July 2007.
QPA had been in operation for about five months prior to the ban. An appeal was filed in March 2008 after Orange County Superior Court ruled that Anaheim could prohibit medical marijuana dispensaries from operating within its city limits.
The Anaheim case has drawn a lot of attention as more and more local governments confront the issue of access to medical marijuana.
Multiple statewide law enforcement associations filed briefs in support of Anaheim, as have nearly three dozen cities, including several in Orange County: Costa Mesa, Cypress, Fullerton, Garden Grove, Newport Beach, Orange, Placentia, Tustin and Westminster.
Shortly after the appeal was filed, California Attorney General Jerry Brown issued guidelines (PDF) in August 2008 recognizing the legality of storefront dispensaries as long as they comply with certain operational requirements.
For instance, dispensaries must operate as collectives or cooperatives, on a not-for-profit basis, sell only to member patients and primary caregivers, and pay sales taxes to the state of California.
The Anaheim case is the first lawsuit of its kind to reach the appellate courts in California and may shape the issue of access to medical marijuana for patients across the state.
|Kris Hermes, ASA: “The whole point… was to study the effect of restrictions like these”|
”Dispensaries serve a critical function for our most seriously ill and should be encouraged, not banned,” said ASA Media Liaison Kris Hermes.
“Thousands of patients in California cannot cultivate their own medical marijuana and rely on local dispensaries for safer access than the illicit market,” Hermes said.
An increasing number of medical marijuana states are adopting laws to deal with the issue of safe access and distribution, including New Mexico, Rhode Island, Maine and, most recently, New Jersey.
A decision by the Fourth Appellate District Court in the Anaheim case is expected within the next couple of months.