Tuesday Feb 05 2013
California Supreme Court hears pot shop ban caseBy: LISA LEFF, Associated Press
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 law that legalized marijuana use for health purposes nor companion legislation adopted by the Legislature in 2003 expressly stated that cities and counties must accommodate retail marijuana stores.
Justice Joyce Kennard noted that the California Constitution grants local governments authority to control local land use matters through zoning.
"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 preexisting 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 available for eligible residents statewide, a goal that dispensary bans thwart.
Nick said while the Legislature authorized local governments to set operating conditions for pot shops, "the word regulation does not in any way signal prohibition."
The Supreme Court's decision in the case will decide the fate of pot shop bans already adopted by about 200 cities and counties.
Many of the local bans were enacted after the number of retail medical marijuana outlets exploded in Southern California after the U.S. Department of Justice said in 2009 that prosecuting pot sales would be a low priority.
Along with the permissibility of local dispensary bans, the state court's seven justices are being asked to determine whether marijuana'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 arguments come in a case out of Riverside, where city lawmakers used their zoning powers to declare storefront pot shops as public nuisances and to ban them in 2010. The Inland Empire Patient's Health and Wellness Center, part of the boom 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 to distribute pot.
In a separate case in Long Beach, however, an appeals court said federal law pre-empts municipalities from allowing dispensaries.
The rush to adopt bans has lessened 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.