California Cities Cannot Ban Marijuana Dispensaries, Appeals Court Rules
In a somewhat strange and unexpected ruling issued yesterday, the California Court of Appeals ruled that California cities cannot ban medical marijuana dispensaries so long as they cultivate cannabis at the same location. The 48-page ruling came in the case of the City of Lake Forest vs. Evergreen Holistic Collective, one of several collectives the city shut down for violating its ban on pot clubs. Because state law allows for marijuana collectives to cultivate and distribute cannabis to members, the court stated, "a local government cannot ban as a nuisance exactly [original emphasis] what the Legislature contemplated would occur at cooperative and collective medical marijuana cultivation sites."
One of the lawyers attached to the case is Matthew Pappas, whose separate lawsuit against the city of Long Beach resulted in a ruling last year that struck down large portions of the city's controversial ordinance requiring collectives to apply for expensive permits that also required them to grow onsite, and which many observers, including the city itself, has interpreted to mean that California cities cannot regulate marijuana clubs at all.
In a letter to Kendra Carney, a deputy city attorney for Long Beach, that he provided to the Weekly, Pappas argued that the Lake Forest ruling further strikes down Long Beach's ordinance--city code 5.89--which it has used to prosecute all but a select group of 18 dispensaries that not won the city's lottery and came up with tens and hundreds of thousands of dollars in additional fees and construction costs to comply with the city's permitting process. (None of those 18 clubs have received operating permits so far).
Pappas urged Carney to immediately halt all actions against marijuana clubs in the city.
"The poor behavior by the City in regard to the patients is not sustainable," he wrote. "5.89 is now going to be stricken. It is totally inappropriate to continue the attacks on the patients."
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You'd think medical marijuana advocates would be jumping for joy at the news that cities can't ban dispensaries that are following state law. But in a statement issued in response to the ruling, Dale Gieringer of the California chapter of the National Organization to Reform Marijuana Laws, or CANORML, argued that it's just the latest schizophrenic court decision that points to the desperate need for legalization. Specifically, Gieringer highlighted the fact that the ruling seems to require the impossible by forcing (presumably at the risk of prosecution) that clubs cultivate marijuana at the same address where they dispense it.
"In practice, of course, hardly any dispensaries cultivate on site due to the obvious security concerns," Gieringer argued. "Nonetheless, the court concluded that [state law] authorizes only 'grow-site dispensaries.' It will be interesting to see how this plays out. This not unfavorable yet cockamamie ruling cries out for a legislative fix."
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