Appellate court issues a ruling on dispensary ban |

Appellate court issues a ruling on dispensary ban

ANAHEIM, Calif. (AP) – A California appellate court on Wednesday remanded a case back to an Orange County judge to consider whether cities can ban medical marijuana dispensaries.

The long-awaited ruling by the 4th District Court of Appeal did little to clear the haze over the ongoing dispute regarding pot shops that have flourished across the state since a 1996 law was passed that allows marijuana use with a doctor’s recommendation.

The panel said the lower court hadn’t addressed if local laws could trump the state’s provisions.

“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 case stems from a 2007 lawsuit in which a patients’ group, Qualified Patients Association, challenged Anaheim’s decision to prohibit dispensaries, arguing it conflicts with state law and violates the civil rights of disabled people.

Anaheim officials argued they have the right to regulate what businesses should be permitted in their city.

“The City applauds the Court of Appeal in ruling that the City’s ordinance does not violate the Unruh (Civil Rights) Act. We are, however, disappointed in that part of the Court of Appeal’s decision on the Federal preemption issue,” the city said in a statement.

The city attorney’s office will take up the case with the City Council in closed session on Aug. 24 and will seek further direction from the council at that time, the statement said.

More than 120 cities and counties in California have barred pot clinics. Federal law still forbids marijuana possession.

South Lake Tahoe City Attorney Patrick Enright said he was disappointed the panel did not address how a city can regulate medical marijuana dispensaries in relation to the state’s medical marijuana laws.

Wednesday’s decision won’t effect the regulation of medical marijuana cultivation in the city, but will likely be part of the discussion as the city moves forward with a proposed ban on medical marijuana dispensaries, Enright said.

But, it could be a year or more before the lower court provides an opinion on how a city can regulate dispensaries in light of California medical marijuana provisions, Enright said.

The lower court did side with the city of Anaheim in its September 2007 ruling, saying federal law preempts state law. But the appeals court disagreed with that assessment, determining that local officials should uphold state law.

“This was a major argument cities have been making,” said Tony Curiale, an attorney who represents the patients’ group in the lawsuit. “Cities are now going to have to use state grounds for banning distribution of medical marijuana and can no longer use federal preemption arguments.”

Alex Kreit, a law professor at the Thomas Jefferson School of Law in San Diego, said the lower court will have to decide the legal merits of locals trying to prohibit dispensaries and it will take some more time to reach a decision.

The appellate court’s opinion “leaves things just as unclear as they were yesterday,” Kreit said.

– Tahoe Daily Tribune reporter Adam Jensen contributed to this story.j

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