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STEVE ELLIOTT

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Court is expected to weigh in on whether municipalities can ban distribution, deny patients a legal medication

The California Supreme Court will hear oral arguments Tuesday morning at University of San Francisco in a closely watched case that addresses whether local governments can lawfully ban medical marijuana dispensaries or should instead be compelled to adopt ordinances regulating them. The case, City of Riverside v. Inland Empire Patients Health and Wellness Center, is one of at least six appellate court cases coming down on different sides of the issue.

Although multiple appellate rulings have overturned bans on local distribution, the Riverside court upheld that city’s ban, claiming that the wellness center violated municipal code and was a “nuisance per se.”

Joe Elford, Americans for Safe Access:  "Hundreds of thousands of California patients who are too sick or otherwise can't cultivate medical marijuana themselves rely on dispensaries for safe and legal access, a right they should not be denied"
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Joe Elford, Americans for Safe Access:
“Hundreds of thousands of California patients who are too sick or otherwise can’t cultivate medical marijuana themselves rely on dispensaries for safe and legal access, a right they should not be denied”

“Local dispensary bans thwart the will of the electorate and the State Legislature, and are therefore preempted by state law,” said Joe Elford, Chief Counsel with Americans for Safe Access (ASA), the country’s largest medical marijuana advocacy group. “Hundreds of thousands of California patients who are too sick or otherwise can’t cultivate medical marijuana themselves rely on dispensaries for safe and legal access, a right they should not be denied.”

The Riverside case, which is being argued by J. David Nick, is the lead case on this issue currently before the High Court. However, several other appellate decisions from southern California on the same issue were also granted review, including County of Los Angeles v. Alternative Medicinal Cannabis Collective, 420 Caregivers v. City of Los Angeles, City of Lake Forest v. Evergreen Holistic Collective, City of Temecula v. Cooperative Patients Services, Inc., and People v. G3 Holistic.

In most of these decisions, the court has sided with municipal governments in their effort to prevent regulated distribution, but two appellate rulings notably hold that local officials may not ban distribution and must develop regulations instead.

Specifically, the County of Los Angeles decision from July 2012 overturned a local ban on dispensaries, reversing the lower court’s preliminary injunction from the previous year. The appellate court in County of Los Angeles held that “medical marijuana collectives…are permitted by state law to perform a dispensary function,” and that “[Los Angeles] County’s total, per se nuisance ban against medical marijuana dispensaries directly contradicts the Legislature’s intent.”

The Court further concluded that, a “complete ban” on medical marijuana is “preempted” by state law and, therefore, void.

Last year, ASA filed an amicus ‘friend of the court’ brief in the Riverside case, arguing that the city’s ban ought to be overturned.

“While municipalities may pass reasonable regulations over the location and operation of medical marijuana collectives, they cannot ban them absolutely,” read ASA’s amicus brief. “These bans thwart the Legislature’s stated objectives of ensuring access to marijuana for the seriously ill persons who need it in a uniform manner throughout the state.”

While more than 50 localities in California have regulated the lawful operation of dispensaries, more than 170 cities have questionably banned their operation outright.

Despite some misconceptions, the Riverside case will likely not address the legality of medical marijuana sales and distribution, which has been fully litigated and established as a right under state law. The most recent decision in this regard came from People v. Jackson, a criminal case in which the legal sale of medical marijuana by a storefront dispensary was affirmed and a defense established for Jackson and other future defendants. The California Supreme Court refused to review or depublish the Jackson decision, which now stands as the law of the state.

According to the California Courts, Tuesday’s oral arguments are part of a special session, “the latest in a series of student outreach programs to improve public understanding of the state court system, [which] also commemorates the University of San Francisco (USF) School of Law Centennial Celebration.” The hearing will be broadcasted by livestream on The California Channel at http://www.calchannel.com.

What: California Supreme Court oral arguments on the legality of municipal bans against medical marijuana distribution
When: Tuesday, February 5, 10:15 am
Where: University of San Francisco, 2130 Fulton Street, McLaren Conference Center (Rooms 250–251)

 

For More Information

Appellate decision in the Riverside case [PDF]

http://AmericansForSafeAccess.org/downloads/Amicus_Riverside.pdf

Links to other appellate decisions on this issue

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