Setback for medical marijuana as California court upholds local ban (+video)

Some 200 California cities and towns ban medical marijuana dispensaries, creating regions where patients cannot purchase the drug legally. Advocates want the state to regulate the business.

By , Staff writer

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    Medical marijuana patient Kevin Brown smelled marijuana available at The Apothecarium Medical Cannabis Dispensary in San Francisco in December 2011. California cities and counties can ban medical marijuana dispensaries, the state's highest court ruled Monday in a unanimous opinion. The California Supreme Court said neither the state's voter-approved law legalizing medical marijuana nor a companion measure adopted by the Legislature prevent local governments from using their land use and zoning powers to prohibit storefront dispensaries.
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California’s Supreme Court ruled unanimously Monday that individual cities and towns can ban the medical marijuana dispensaries that have sprouted around the state, dealing a blow to advocates of broader legal access to the drug and invigorating calls for the Legislature to speed measures regulating the business.

Because of the scores of jurisdictions across the state that have already banned the dispensaries, the ruling by the seven justices essentially leaves in place large contiguous tracts of territory where patients with a doctor’s prescription cannot purchase the drug legally.

Some medical marijuana advocates said the ruling made it likely that more cities and towns, angry that the regulatory burden falls on them and not the state, also would enact bans.

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In the case before the court, a ban on such dispensaries was imposed by the city of Riverside in 2010. The plaintiff, the Inland Empire Patient's Health and Wellness Center, which was objecting to being shut down, sued the city on the grounds that the ban contravened the state law's objective of "ensuring access to marijuana for the seriously ill who need it in a uniform manner throughout the State."

But in upholding Riverside’s ban, Supreme Court Justice Marvin Baxter wrote: "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.”

According to Americans for Safe Access, a Washington, D.C., organization that advocates making medical marijuana available to patients, an estimated 200 jurisdictions in California already have such bans on dispensaries, of which more than 1,000 were established in the wake of the 1996 Proposition 215 that made California the first state to legalize medical marijuana.

Kris Hermes, a spokesman for Americans for Safe Access, says the challenge for California lawmakers already examining legislation to regulate the business is to ensure a “more equitable spread of availability of these dispensaries to people so there are not huge pockets without access.” Currently, he adds, “the entire Central Valley” has no such legal dispensary.

"While the California Supreme Court ruling ignores the needs of thousands of patients across the state, it simply maintains the status quo," said Joe Elford, chief counsel with Americans for Safe Access, which filed an amicus “friend of the court” brief in the Riverside case. "Notably, the High Court deferred to the State Legislature to establish a clearer regulatory system for the distribution of medical marijuana, which advocates and state officials are currently working on."

Another call for statewide regulation of medical marijuana came from the Drug Policy Alliance, which called such regulation “the only way to protect patients.”

“While there are more than 50 localities within California that have adopted ordinances that comprehensively and successfully regulate medical marijuana and provide meaningful patient access,” the Drug Policy Alliance said, “many others have enacted bans over frustration and hostility at the burden of medical marijuana regulation falling at the local level. It is likely that the court’s decision today, absent action by the state Legislature, will lead to more localities enacting bans.”

Karen O’Keefe, director of state policies for the Marijuana Policy Project, called the ruling “disappointing to those of us who simply want to have access to improve the quality of our lives. Now, we have the option of going to the criminal market or depend on our own green thumbs.”

But Ms. O’Keefe and other marijuana advocates are emphasizing a portion of the Monday ruling in which the justices said “nothing prevents future efforts by the Legislature, or by the People, to adopt a different approach.”

“We want to seize on the silver lining here in that there is an opportunity for the Legislature to get rid of the dysfunctional patchwork system that exists around medical marijuana in California and adopt clear regulations that will equitably provide access to the hundreds of thousands here that want medical marijuana,” Mr. Hermes, the Americans for Safe Access spokesman, says.

National marijuana organizations say the ruling has no implication for other states, but simply pushes California to do what Prop. 215 was supposed to do in the first place.

“This ruling once again emphasizes the need for state lawmakers to fulfill the mandate of Proposition 215, which calls for the state government ‘to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana,’ ” says Paul Armentano, deputy director for the National Organization for the Reform of Marijuana Laws.

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