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  • Donna Bader
  • Attorney at Law
  • Certified Specialist in Appellate Law
  • 668 North Coast Hwy, Ste. 1355
  • Laguna Beach, CA  92651
  • Tel.: (949) 494-7455
  • Fax: (949) 494-1017
  • Donna@DonnaBader.Com

 

 

Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017

Donna@DonnaBader.com

 

 

 

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Saturday
Nov122011

A new decision that will banish medical marijuana dispensaries and collectives

The Court of Appeal in the Fourth Appellate District, Division Two in Riverside just filed its opinion in City of Riverside v. Inland Empire Patient's Health and Wellness Center, Case No. E052400.  Inland Empire appealed from the trial court's finding that its dispensary constituted a public nuisance per se and ithe court's issuance of a preliminary injunction enjoining Inland Empire from operating in Riverside.  You can find the opinion here: http://www.courtinfo.ca.gov/opinions/documents/E052400.PDF.

Inland Empire claimed Riverside's ordinance was preempted by state law, and in particular, the Compassionate Use Act of 1996 and the Medical Marijuana Program Act (MMPA).  The court disagreed and affirmed the lower court's judgment.

According to Riverside's zoning codes, medical marijuana dispensaries are prohibited.  Riverside's zoning code also state that any use that is prohibited by state and/or federal law is prohibited, and any violation of its code is deemed a public nuisance and subject to abatement.

In a 27-page opinion, the appellate court found that the CUA and MMPA, which it narrowly construed to constitute a limited criminal defense, did not touch on land use issues or prohibit a city from banning dispensaries.  It stated, "[N]othing in the CUA or MMP sugggests that cities are required to accommodate the use of medical marijuana and MMD, by allowing MMD's within every city.  Nothing stated in the CUA and MMP precludes cities from enacting zoning ordinances banning MMD's within their jurisdiction.  Furthermore, those who wish to use medical marijuana are not precluded from obtaining it by means other than at an MMD in Riverside."  (Opn., pgs. 22-23.)

While the CUA and MMPA does envision local government regulations, it does not explicitly allow banning collectives or dispensaries.  The court disagreed, fiding that a ban is a "lawful method of limiting the use of property by regulating and restricting the location and establishment of MMD's in the city . . . A ban or prohibition is simply a type or means of restriction or regulation."  (Opn., pg. 25.)

Given this Court's decision, one might expect to see the cities and counties enacting absolute bans to collectives and dispensaries.  It might be one way for them to eliminate the costs of litigation incurred in fighting the establishment of such groups.  Coupled with the recent actions by the federal authorities in seizing bank accounts and properties, one might easily conclude the forces of the federal and local governments - not necessarily the State - are aligned against group activities involving medical marijuana. 

The story is not yet over as it is anticipated that Inland Empire will seek review from the California Supreme Court.  There are other cases involving the same issue filed in other districts, and if one district were to conclude MMDs cannot be banned, then the matter will eventually have to be resolved by the California Supreme Court or the State legislature. 

It also means that qualifying patients will have to struggle to find any dispensary that is open to them, even if it involves a lot of travel.  Growing in the home may also be an option, but given that the immediate source of medical marijuana may be cut off, anyone who starts growing now will have weeks and months to wait before harvesting a crop.  As more and more people learn of the medicinal effects of marijuana, it will be impossible to put the geni back into the bottle, and we can expect to see a surge in the purchase of illegal drugs. 

Whether we will also see an increase to fend off the drop in sales for prescription painkillers remains to be seen.  By mandating cholesterol tests for kids as young as 11, perhaps the big pharmaceutical companies can make up the gap in prescribing statins to adolescents, confident in the knowledge that if they can give statins to children at 11, they may have a steady stream of income in this area for the next 60 years of that child's life.