California Court: Cities Can Ban Pot Shops

California's highest court says local governments have legal authority to ban storefront pot shops within their borders.

Monday, May 6, 2013  |  Updated 6:38 PM PDT
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California cities and counties can ban pot shops, the state's highest court ruled Monday in a unanimous opinion likely to further diminish California's once-robust medical marijuana industry.

California cities and counties can ban pot shops, the state's highest court ruled Monday in a unanimous opinion likely to further diminish California's once-robust medical marijuana industry.

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The California Supreme Court ruled unanimously today that cities and counties have the right to ban medical marijuana dispensaries within their borders, despite the existence of a state law that protects patients who use the drug.

The court said the scope of the voter-approved Compassionate Use Act of 1996, or Proposition 215, and a related 2003 state law is "limited and circumscribed" and does not prevent local governments from prohibiting marijuana dispensaries. Currently, 193 California cities -- including more than 40 in the greater Bay Area -- ban medical marijuana dispensaries, according to statistics compiled by Americans for Safe Access, an Oakland-based marijuana advocacy group.

Twenty counties, including Contra Costa, prohibit dispensaries within unincorporated county land.

The court issued its ruling in a case in which a Riverside dispensary, the Inland Empire Patient's Health and Wellness Center, was challenging a city zoning law prohibiting such facilities. Proposition 215 and the state's Medical Marijuana Program law of 2003 protect seriously ill patients who have a doctor's recommendation from being prosecuted under state law for using the drug for medical purposes.

Lawyers for the Riverside business unsuccessfully argued that local bans on dispensaries should not be allowed because they conflicted with the two state laws.

The court, in a decision written by Justice Marvin Baxter, said the state measures are merely "incremental steps toward freer access to medical marijuana" and do not require local governments to allow dispensaries.

Baxter wrote that nothing in either law limits the authority of a city or county "to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders."

Bay Area cities that prohibit marijuana dispensaries include Antioch, Benicia, Calistoga, Concord, Corte Madera, Dublin, El Cerrito, Fremont, Hayward, Livermore, Milpitas, Morgan Hill, Newark, Petaluma, Redwood City, San Rafael, Sunnyvale, Union City and Vacaville, among others. Americans for Safe Access Chief Counsel Joseph Elford said, "This ruling maintains the status quo," since it upholds existing bans.

At the same time, Elford said, the decision "seemingly allows localities to choose to regulate marijuana dispensaries" and thus permit them to exist. "We urge localities to choose to regulate dispensaries," he said.

Forty-four California cities currently have regulations that allow dispensaries, including Oakland, Martinez, San Jose, San Francisco and Santa Rosa, according to Americans for Safe Access.

Ten counties, including Alameda, San Mateo, Santa Clara, Santa Cruz and Sonoma, have such laws.

The state high court justices' questions during arguments in the case in San Francisco in February had indicated that the court was likely to uphold the local bans.

The two California medical marijuana laws protect patients from being prosecuted under state drug laws, but federal laws criminalizing marijuana use make no exception for state laws. In addition to prosecuting marijuana growers in criminal cases, U.S. attorneys in California began a law enforcement effort in 2011 to use civil forfeiture lawsuits to crack down on dispensaries they consider to be large-scale commercial enterprises.

The lawsuits are filed against dispensary landlords, including a pending case against the landlord of the Harborside Health Center in Oakland, the state's largest medical marijuana dispensary.

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