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California Supreme Court ruling upholds local pot shop bans

Mayor says decision protects character of Auburn
By: Jon Schultz, Journal Staff Writer
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A California Supreme Court decision Monday allows city and county governments to ban medical marijuana dispensaries, upholding the City of Auburn’s ordinance and nearly 200 others like it statewide.

Auburn became one of the first local municipalities to ban dispensaries in 2005, and it recently spent $75,000 defending the prohibition in a case against one that had opened up in the city under a business license approved as a “florist; variety shop.”

On Feb. 7, a 3rd District Appellate Court ruling upheld the trial court’s decision that granted the city a preliminary injunction to shut down Blooms & Blossoms, saying it violated the city’s business license ordinance.

It didn’t broach the issue of whether local governments could prohibit dispensaries, leaving Auburn and a host of other municipalities anxiously awaiting Monday’s ruling on the City of Riverside case, which challenged its ban enacted in 2010.

The high court’s 7-0 decision pleased Auburn Mayor Kevin Hanley, who worked with former Police Chief Nick Willick to develop the city’s ordinance in 2005.

“This court’s decision will help us maintain kind of a family-friendly place for residents and tourists to gather in Old Town, Downtown, businesses at the airport and all our other business districts,” Hanley said.

Richard Miller, former Blooms & Blossoms owner, could have sought to reopen his dispensary had the Supreme Court ruled the other way.

Miller said Monday that he is “100 percent” out of the dispensary business. He has lost “everything,” including his Auburn home, but vows to keep fighting for patients’ rights, he said.

“Between the feds and the state not organizing and not regulating, they’re essentially tying our hands,” said Miller, president of Heath Education and Legal Patients Rights and the Sacramento County chapter of Americans for Safe Access. “They’re sending the patients back out on the streets, where no taxes are being paid and people are getting medicine that could … cause them harm, because they’re not being tested.

“I think it was a very bad decision, and the only thing we can do to rectify this is to get legislation forward.”

Proposition 215, the Compassionate Use Act of 1996, permitted the use of marijuana for medicinal services in California, but Miller said it resulted in the proliferation of dispensaries without adequately protecting patients’ rights.

Two bills are pending in the California Legislature that seek to establish a new statewide system for regulating and licensing the medical marijuana industry, and to clarify the role of dispensaries in it, according to the Associated Press.

Hanley views Prop 215 as “flawed,” in that its definition of who can use medical marijuana is too loosely crafted, resulting in some people obtaining prescriptions simply because they want to use it recreationally, he said.

“I think a lot of people, including myself, would have carefully considered a proposition that would have more carefully authorized use of medical marijuana for serious medical conditions like treatment for nausea for someone undergoing chemotherapy,” he said. “We have to react to the way it was drafted, not how we hope it would be drafted, and that’s why 180 cities banned dispensaries.”

Having a dispensary open in a business district would negatively effect nearby establishments and discourage people from the area, Hanley said.

“The City of Auburn, I think we were ahead of the situation where we saw kind of the dead zone, or the blighted problem early on, and said let’s do a ban rather than try to regulate,” he said.

Ken Brock, Miller’s attorney, said he was surprised by the decision. It “bothered” him because he felt an important issue was not addressed.

“They just kind of ignore the plain language of the statute itself … specifically referencing the right of municipalities to ‘restrict and regulate.’ So the question is, is the restriction and regulation the same as a prohibition or ban? I think the answer is no,” Brock said. “But the Supreme Court sidestepped that issue all together.”

Auburn City Attorney Michael Colantuono said the ruling reinforces California’s “strong policy” of designating land use authority to local control.

“California is a hugely diverse place,” Colantuono said. “What does Modoc County have in common with urban Los Angeles so that they should have common rules for use of land?”

Justice Marvin Baxter’s written opinion reflected that sentiment.

“While some counties and cities might consider themselves well-suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens,” Baxter wrote on behalf of the seven-member court, according to the Associated Press.

 

Jon Schultz can be reached at jons@goldcountrymedia.com. Follow him on Twitter @Jon_AJNews