Court Won’t Rule On Medical Marijuana Dispensary Bans


Graphic: HighDef Forum

​A California appeals court declined Wednesday to decide whether the state’s medical marijuana laws prevent cities and counties from outlawing dispensaries, sending a highly anticipated, closely watched dispute over Anaheim’s three-year-old ban back to a lower court for more hearings.

The ruling by the 4th District Court of Appeal did not provide much-needed clarity regarding the argument on pot dispensaries in the state. According to California’s medical marijuana law, passed by the voters in 1996, marijuana can be used if a person has a recommendation from a physician.
Cities and dispensaries had been anticipating a major decision because the court had asked both sides for more information and took an unusually long time to reach a decision — a full year, rather than the typical three months, reports John Hoeffel at the Los Angeles Times.

Photo: ASA
Joe Elford, ASA: “…the court’s ruling delays a decision that will affect thousands of patients who remain without access to their medication because of hostile jurisdictions”

​”Having taken as long as they did to decide the case, I was hoping we’d get a more definitive result,” said Joe Elford, chief counsel for Americans for Safe Access (ASA), a patient advocacy group.
“As anxious as we, the parties, and amici curiae are to reach this important and interesting question of state preemption, this case in its present posture is not the occasion to do so,” the court wrote.
The ruling states that because Proposition 215 and the Medical Marijuana Program Act (MMPA) “do not mandate conduct that federal law prohibits, nor pose an obstacle to federal enforcement of federal law, the enactments’ decriminalization provisions are not preempted by federal law.”
In a statement favorable to the plaintiff, the court questions how “a city may criminalize as a misdemeanor a particular use of property the state expressly has exempted from ‘criminal liability,'” as it does in the MMPA.
“While we understand the difficult nature of deciding this issue, the court’s ruling delays a decision that will affect thousands of patients who remain without access to their medication because of hostile jurisdictions,” Elford said. “The silver lining to this decision is that this court has reinstated the lawsuit and is providing the plaintiffs the opportunity to prove that dispensary bans are illegal under state law.”
Qualified Patients Association, a dispensary run by Lance Mowdy, sued Anaheim in 2007 to overturn the city’s ordinance making it a misdemeanor to operate a medical marijuana dispensary in the city.
The dispensary had been in operation for five months prior to the July 2007 ban.
An appeal was filed in March 2008 after the Orange County Superior Court ruled that Anaheim could prohibit dispensaries from operating within its city limits.
The Anaheim case has drawn a lot of attention as more and more local governments have been forced to confront the issue of access to medical marijuana. Despite guidelines issued in August 2008 by California Attorney General Jerry Brown recognizing the legality of storefront dispensaries, multiple statewide law enforcement associations filed briefs in support of Anaheim’s ban, as did nearly three dozen cities.
While nearly four dozen California localities — including some of the most populous cities, such as Los Angeles, Long Beach, Oakland and San Francisco — have successfully implemented ordinances regulating medical marijuana dispensaries, more than 130 cities have imposed bans like Anaheim’s, according to ASA.
“We will continue to fight for the right of patients to access medical marijuana through local dispensaries, which is provided for by the Medical Marijuana Act, previous case law and guidelines issued by the California Attorney General,” Elford said. “Whether or not the Anaheim case is brought before this court again, this issue will eventually be reheard and we are confident of the eventual outcome.”