California high court justices grill lawyer defending medical pot dispensaries

Published: Wednesday, Feb. 6, 2013 - 12:00 am | Page 3A
Last Modified: Wednesday, Feb. 6, 2013 - 8:50 am

SAN FRANCISCO – California's highest court Tuesday took on the issue of whether cities and counties can ban medical marijuana dispensaries, and the pointed legal arguments that ensued seemed to put the state's nebulous marijuana laws on trial.

In a case with huge implications for California's billion-dollar medical marijuana industry, the state Supreme Court heard a challenge by a dispensary operator seeking to overturn a city of Riverside ban on medical marijuana stores.

State appellate courts have issued conflicting rulings on whether the 200 California cities and counties that prohibit medical marijuana outlets can legally ban the dispensaries or be forced to accept them under the state's medical marijuana laws.

J. David Nick, attorney for the Inland Empire Health and Wellness Center, a dispensary ordered closed as a "public nuisance" under Riverside zoning laws, argued that legal protections afforded medical marijuana patients mean local governments have to accommodate the stores that provide the marijuana.

Nick said provisions of Senate Bill 420 – a 2003 bill given the numeric nickname for pot – effectively legalized dispensaries and prohibited local bans. The bill said people with diagnosed illnesses have legal protection "to cooperatively or collectively cultivate marijuana for medical purposes."

"The local authorities do not have the authority … to ban what the state Legislature made lawful," he said.

Nick faced blistering questions and commentary from the Supreme Court justices.

Several justices noted the lack of specifics in SB 420, which was supposed to provide a legal framework for carrying out the voter-approved Proposition 215 ballot initiative that legalized medical marijuana use in 1996.

"The Legislature knows how to say, 'Thou shalt not ban dispensaries,' " said Associate Justice Ming W. Chin. "They didn't say that."

"The language (in the bill) doesn't even seem to get you very far," said Associate Justice Goodwin Liu.

The Riverside case is the first of three the California Supreme Court has accepted on appeals from medical marijuana advocates challenging state appellate court rulings upholding dispensary bans in Riverside, Upland in San Bernardino County, and the Orange County city of Dana Point.

Intensifying the legal debate, four other appellate court rulings overturned criminal convictions of dispensary operators in Los Angeles and San Diego, and bans on dispensaries in Los Angeles County and the Orange County city of Lake Forest.

The state Supreme Court is expected to rule in the Riverside case this spring.

Americans for Safe Access, a medical marijuana advocacy group, filed court papers arguing that California cities and counties can't arbitrarily bar dispensaries as nuisances without any proof that "they are injurious to the public."

"It seems obvious that the city of Riverside has banned medical marijuana dispensaries … because it does not like them," wrote attorney Joe Elford.

Arguing on behalf of the Riverside ban, attorney Jeffrey V. Dunn told justices that the state constitution protects the rights of local governments to regulate business activity and that there is nothing in Proposition 215 or SB 420 that upends those rights.

Dunn said California never spelled out rules for how medical marijuana was to be distributed. He suggested that the vague legislative language on collective cultivation doesn't cover the hundreds of marijuana stores that sprouted in the state.

"If the Legislature wanted to include distribution it would have said so," Dunn said. "There is no state-sanctioned distribution system."

Proposition 215 called on "federal and state governments to implement a plan for safe and affordable distribution of marijuana." But Dunn argued in court Tuesday, "That has not happened."

Medical marijuana advocates have pushed for new legislation to regulate California's cannabis industry in the wake of an ongoing federal crackdown that has prompted closure of numerous dispensaries, including 100 in Sacramento County.

A bill to create a state commission and policing agency to set rules for distribution died in the state Senate last year, and is expected to be raised again this month.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Peter Hecht



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