Jacob Bell
New Member
Walnut Creek, CA--Lawyers know better than to succumb to the pun that legal issues surrounding medical marijuana are "hazy."
But those arguing about the right of cities to ban medical marijuana dispensaries - for or against, can certainly draw mixed messages from recent decisions by the state appellate court and statements from the U.S. Attorney General's office.
After a year in which the status quo remained relatively undisturbed - local cities shutting down dispensaries while courts avoided saying definitively whether that violated provisions in state law allowing medical marijuana; federal authorities saying they wouldn't interfere despite a federal ban on the substance - those positions show signs of possible change.
What may change remains unclear, and those on either side have different predictions.
The 4th District Court of Appeal has issued a series of stays on preliminary injunctions against cooperatives that lower courts had ordered shut because of local bans. That allows them to reopen until the court decides whether such bans are constitutional.
Roger Jon Diamond, who represents G3 Holistic in its efforts to remain open in Upland, said he thinks he also represents the front line in the legal battle between cities and dispensaries.
The court ruled June 20 that G3's Upland location, which closed in November, could reopen. It began distributing medical marijuana on Sunday.
"This case has been fully briefed, and this is therefore what I understand is the lead case," Diamond said. "It's a very good test case because there's no dispute in the record that my client was operating in conformity with the state requirements."
If no such evidence is introduced and Diamond handles his case correctly, he thinks it could be the first to force courts to answer a question they've avoided answering head-on.
The Appeal Court said as much in nearly identical stays issued in Upland and the next day to two dispensaries in Colton.
"The issue raised in this case, now pending on appeal before this court, is whether a local public entity, such as a city, may effectively prohibit medical marijuana dispensaries within its boundaries when such dispensaries are permitted by state law and have onto been shown, as a matter of evidence, to constitute a nuisance in fact," the opinion said. "At this time, no published case has dealt with this issue."
Several earlier decisions by the 4th District Court of Appeal have touched on the issue, giving each side hope.
Many were waiting for the outcome in Qualified Patients v. Anaheim, decided in 2010.
Because of the way the case was filed, though, the court ruled only that federal laws against marijuana were not sufficient reason for cities or counties to ban dispensaries.
The case also distanced itself from two previous decisions cities had used to bolster their hopes, noting that dispensaries in Corona and Claremont - unlike the one in Anaheim, and also unlike those in Upland and Colton - were opened under during a temporary moratorium against dispensaries, rather than a ban, and that they "ignored or circumvented established procedures for obtaining a business license."
Diamond said those distinctions make all the difference.
"I conceded, for strategic reasons, that a moratorium may be valid to give a city time to think through issues," Diamond said.
And he said he supports some zoning rights for cities, just not the power to completely prohibit something that voters and legislators agreed to allow.
"What would stop all cities from getting together and saying we're banning it? Therefore, medical marijuana would be effectively banned," he said.
But it's undemocratic - and at odds with earlier court decisions - to deprive local representatives of the power to deny land usages for operations they oppose, said attorney John D. Higginbotham of Best Best & Krieger.
Higginbotham represents Colton in its efforts to close two two medical marijuana distributors who opened in violation of a city ban, and his firm won cases allowing Claremont and Corona to shut down dispensaries.
"It is a common mistake on the part of marijuana advocates and their supporters to erroneously claim the cases were only about moratoriums - they were not," he said by email. "Both cases were decided on the constitutionally protected land use authority both cities exercised to regulate marijuana dispensaries."
In the Corona case, the court said California law provides "limited criminal immunities under a narrow set of circumstances" for medical marijuana users, but does allow cities to "regulate."
"Nothing in the text or history of (California law) precludes the city's adoption of a temporary moratorium on issuing permits and licenses to medical marijuana dispensaries, or the city's enforcement of licensing and zoning requirements applicable to such dispensaries," the court said in that case.
Whether that extends to a complete ban is something both sides expect the court to decide.
It's unclear when such a decision would be made, as trial dates have not been set.
News Hawk- Jacob Ebel 420 MAGAZINE
Source: contracostatimes.com
Author: Ryan Hagen
Contact: Contact Us
Copyright: Bay Area News Group
Website: Can Pot Bans Stand?
But those arguing about the right of cities to ban medical marijuana dispensaries - for or against, can certainly draw mixed messages from recent decisions by the state appellate court and statements from the U.S. Attorney General's office.
After a year in which the status quo remained relatively undisturbed - local cities shutting down dispensaries while courts avoided saying definitively whether that violated provisions in state law allowing medical marijuana; federal authorities saying they wouldn't interfere despite a federal ban on the substance - those positions show signs of possible change.
What may change remains unclear, and those on either side have different predictions.
The 4th District Court of Appeal has issued a series of stays on preliminary injunctions against cooperatives that lower courts had ordered shut because of local bans. That allows them to reopen until the court decides whether such bans are constitutional.
Roger Jon Diamond, who represents G3 Holistic in its efforts to remain open in Upland, said he thinks he also represents the front line in the legal battle between cities and dispensaries.
The court ruled June 20 that G3's Upland location, which closed in November, could reopen. It began distributing medical marijuana on Sunday.
"This case has been fully briefed, and this is therefore what I understand is the lead case," Diamond said. "It's a very good test case because there's no dispute in the record that my client was operating in conformity with the state requirements."
If no such evidence is introduced and Diamond handles his case correctly, he thinks it could be the first to force courts to answer a question they've avoided answering head-on.
The Appeal Court said as much in nearly identical stays issued in Upland and the next day to two dispensaries in Colton.
"The issue raised in this case, now pending on appeal before this court, is whether a local public entity, such as a city, may effectively prohibit medical marijuana dispensaries within its boundaries when such dispensaries are permitted by state law and have onto been shown, as a matter of evidence, to constitute a nuisance in fact," the opinion said. "At this time, no published case has dealt with this issue."
Several earlier decisions by the 4th District Court of Appeal have touched on the issue, giving each side hope.
Many were waiting for the outcome in Qualified Patients v. Anaheim, decided in 2010.
Because of the way the case was filed, though, the court ruled only that federal laws against marijuana were not sufficient reason for cities or counties to ban dispensaries.
The case also distanced itself from two previous decisions cities had used to bolster their hopes, noting that dispensaries in Corona and Claremont - unlike the one in Anaheim, and also unlike those in Upland and Colton - were opened under during a temporary moratorium against dispensaries, rather than a ban, and that they "ignored or circumvented established procedures for obtaining a business license."
Diamond said those distinctions make all the difference.
"I conceded, for strategic reasons, that a moratorium may be valid to give a city time to think through issues," Diamond said.
And he said he supports some zoning rights for cities, just not the power to completely prohibit something that voters and legislators agreed to allow.
"What would stop all cities from getting together and saying we're banning it? Therefore, medical marijuana would be effectively banned," he said.
But it's undemocratic - and at odds with earlier court decisions - to deprive local representatives of the power to deny land usages for operations they oppose, said attorney John D. Higginbotham of Best Best & Krieger.
Higginbotham represents Colton in its efforts to close two two medical marijuana distributors who opened in violation of a city ban, and his firm won cases allowing Claremont and Corona to shut down dispensaries.
"It is a common mistake on the part of marijuana advocates and their supporters to erroneously claim the cases were only about moratoriums - they were not," he said by email. "Both cases were decided on the constitutionally protected land use authority both cities exercised to regulate marijuana dispensaries."
In the Corona case, the court said California law provides "limited criminal immunities under a narrow set of circumstances" for medical marijuana users, but does allow cities to "regulate."
"Nothing in the text or history of (California law) precludes the city's adoption of a temporary moratorium on issuing permits and licenses to medical marijuana dispensaries, or the city's enforcement of licensing and zoning requirements applicable to such dispensaries," the court said in that case.
Whether that extends to a complete ban is something both sides expect the court to decide.
It's unclear when such a decision would be made, as trial dates have not been set.
News Hawk- Jacob Ebel 420 MAGAZINE
Source: contracostatimes.com
Author: Ryan Hagen
Contact: Contact Us
Copyright: Bay Area News Group
Website: Can Pot Bans Stand?
