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Control vs. Compassion: California Cities Struggle With Conflicting Medical Marijuana Laws

As a result of recent developments and pending cases affecting this very issue, the ability of cities and counties to prohibit medical marijuana dispensaries will be the new focus in the controversy over medical marijuana, with a case involving the City of Anaheim’s ban on medical marijuana dispensaries, set for oral argument in a State Court of Appeals in August.  For now, the issue of whether Proposition 215, otherwise known as the Compassionate Use Act, is preempted by Federal law, as well as enforcement by the DEA has moved to the back burner.

In May, 2009 the U.S. Supreme Court declined to review a case involving the County of San Diego (Count of San Diego v. San Diego NORML).  The San Diegocase involved the requirement in statutes implementing Proposition 215 that counties in Californiaissue identification cards to qualified medical marijuana users.  The Counties of San Diego and San Bernardinochallenged the law on the basis that the Federal Controlled Substances Act preempted the State laws.  In July, 2008 the Fourth District Court of Appeals, in a narrow ruling focusing on just the ID card requirement, and not the broader issue of the validity of Proposition 215, and ruled that the State law pertaining to the ID card requirements was not preempted.  Subsequently, the California Supreme Court declined to review the case, and on May 18, 2009 the U.S. Supreme Court also denied Certiorari (US Supreme Court review) in the case.

The main issue for local agencies has been determining how it should regulate medical marijuana "dispensaries.”.  Many local agencies find that they are caught in the middle between Proposition 215, which exempts qualified medical marijuana users from criminal sanctions under State law, and the Federal Controlled Substances Act, which prohibits any use of marijuana whatsoever, medical or otherwise.  Dispensaries are often run as storefront operations, and local  law enforcement agencies often believe that the dispensaries are skirting the law, claiming to be “caregivers” to satisfy the requirements of Proposition 215 and it’s implementing statutes.   This last summer, the Attorney General’s Office weighed in, issuing guidelines in August, 2008. Unfortunately, the guidelines appear to make most storefront dispensaries inconsistent with State law.  Nonetheless, a great many dispensaries are in operation (for example, a recent article in the L.A. Times indicates that more than six hundred operate in that city alone!).


 

In any case, many cities throughout the State have struggled with how to deal with requests to open medical marijuana dispensaries.  Some agencies have taken a regulatory approach, permitting them, subject to compliance with various local permitting, zoning and performance standard type regulations.  Others have chosen to wait for clarification of the laws relating to medical marijuana, and have adopted moratoriums on the establishment of such dispensaries.  For example, in May, 2009, after receiving a request to open a dispensary the City of Guadelupe adopted such a moratorium.


 

In San Luis Obispo County there has been the well publicized federal prosecution of a Morro Bay dispensary operator. Recently, however, the Obama administration has indicated it will no longer conduct raids targeting such facilities.   Many other cities in the County have adopted bans on dispensaries, including Arroyo Grande, Pismo Beach, Grover Beach, and Paso Robles.    The City of Anaheim’s ban was challenged by a group called the Qualified Patients Association in 2007 and a trial court ruled in the City’s favor in February, 2008.  That case is currently pending in the 4th District Court of Appeals, with oral argument in the case scheduled for August 19, 2009.  This decision may significantly impact the manner in which our local agencies address the medical marijuana issue. So, stay tuned, as the drama over medical marijuana and the dilemma faced by cities and counties continues to unfold…


– Posted by David H. Hirsch, Attorney at Law


dhirsch@carnaclaw.com