California Supreme Court hears pot shop ban case
February 5, 2013
SAN FRANCISCO – Members of California’s highest court expressed skepticism Tuesday over claims that the state’s medical marijuana laws prohibit local governments from banning storefront pot shops.
During oral arguments in a challenge to the city of Riverside’s ban on medical marijuana dispensaries, several justices of the California Supreme Court said they were bothered by the fact that neither a 1996 voter-approved initiative that legalized marijuana use for health purposes, nor companion laws the Legislature adopted in 2003 expressly state that cities and counties must accommodate retail marijuana stores.
Justice Joyce Kennard said that just because the laws allow eligible residents to use marijuana without fear of criminal prosecution, they did not necessarily take priority over the authority the California Constitution grants local governments to control local land use and zoning decisions.
“The relevant issue before the court is to note the city’s regulatory authority over land use … and that power does not derive from the medical marijuana program. It’s a pre-existing power,” Kennard said.
But J. David Nick, a lawyer representing a dispensary Riverside officials have sought to close, told the court that lawmakers clearly intended to make marijuana easily and uniformly available for eligible residents statewide, a goal that dispensary bans thwart.
“The word ‘regulation’ does not, in any way, signal prohibition,” Nick said.
The Supreme Court has 90 days to issue its decision in the case, which will decide the fate of pot shop bans already adopted by about 200 cities and counties. Additional jurisdictions put on hold their consideration of either operating rules for pot shops or outright dispensary bans pending the court’s ruling.
Many of the local bans were enacted after the number of retail medical marijuana outlets boomed in Southern California following a memo from the U.S. Justice Department, stating that prosecuting pot sales would be a low priority.
The rush to adopt bans has abated over the last 18 months, since the four federal prosecutors in California launched a coordinated crackdown on dispensaries by threatening to seize the properties of landlords that leased space to them. Hundreds of pot shops have since been evicted or closed voluntarily.
Although some medical marijuana advocates had hoped the state court’s seven justices also would determine whether pot’s federal status as an illegal drug prohibits local governments from explicitly authorizing its distribution at all, as about 50 California counties and cities have, the court Tuesday deliberately shied away from any discussion of federal versus state law.
Among the judges, only Justice Kathryn Werdegar seemed bothered by the effect that allowing local bans would have on the ability of California residents to obtain medical marijuana.
Werdegar pointed to two sections of the law passed by the Legislature to argue that banning marijuana distribution was implicitly disallowed. One states that the Legislature wanted the medical marijuana laws to be applied uniformly throughout the state, while the other states that eligible medical marijuana users can band together to cultivate pot as a collective.
“The Legislature is allowing the cities and counties to regulate in this area,” said Jeffrey Dunn, the lawyer representing Riverside.
“That’s assuming we agree with your definition of ‘regulate,’ which is debatable,” Werdegar shot back.
The arguments came in a case where Riverside city lawmakers used their zoning powers to declare storefront pot shops as public nuisances and ban them in 2010. The Inland Empire Patient’s Health and Wellness Center, part of the explosion of retail medical marijuana outlets, sued to stop the city from shutting it down.
A mid-level appeals court sided with the city, but other courts have come to opposite conclusions. Last summer, a trial judge ruled that Riverside County could not close medical marijuana dispensaries in unincorporated areas because the move did not give the shops any room to operate legally under state law.
An appeals court in Southern California also struck down Los Angeles County’s 2-year-old ban on dispensaries, ruling that state law allows cooperatives and collectives to grow, store and distribute pot.
In a separate case in Long Beach, however, an appeals court said federal law pre-empts municipalities from allowing dispensaries.