STATE APPEALS COURT UPHOLDS LA CITY'S DISPENSARY BAN

Decision Could Have Widespread Significance, Attorney Says

In a legal blow to medical marijuana advocates, a state court ruled
last week that local governments can ban medical marijuana
dispensaries from setting up shop in their jurisdictions.

The state's Second District Court of Appeal said in its decision that
the city of Claremont in Los Angeles County could ban dispensaries
without violating the state's medical marijuana laws. Those laws
include the 1996 Compassionate Use Act, which legalized marijuana for
medical use, and the 2004 Medical Marijuana Program Act, which lets
people cultivate marijuana collectively.

That is because neither law "compels the establishment of local
regulations to accommodate medical marijuana dispensaries," according
to the court's ruling.

The Sept. 22 opinion could have wide-ranging implications for cities
and counties statewide, including San Diego County and other cities
in the region that are drafting new ordinances to regulate medical
marijuana dispensaries, said an attorney involved in the case.

"What this court said is that if you are arguing that a city cannot
ban a dispensary, that argument is no longer valid," said Jeffrey
Dunn, a San Diego attorney who represented the city of Claremont in the case.

Several cases are moving though the state's court system addressing
various legal questions on what cities and counties can and can't do
to regulate dispensaries.

San Diego County officials and medical marijuana activists said they
are especially watching a case involving the city of Anaheim in Orange County.

Some medical marijuana activists say they believe the county is
closely following the Anaheim case because the supervisors here want
to permanently ban medical marijuana dispensaries, not regulate them.

Supervisor Pam Slater-Price has said she would be willing to ban
dispensaries in the county. Other supervisors have declined to say
whether they would support such a ban, but the majority of the board
has been outspoken opponents of the state's medical marijuana laws.

In 2006, the supervisors filed a lawsuit to overturn the state's 1996
medical marijuana law. The supervisors unsuccessfully challenged the
law all the way to the U.S. Supreme Court, which declined to hear an
appeal in May.

Earlier this month, the supervisors extended a temporary ban on
dispensaries through August 2010. Some medical marijuana foes called
for an outright ban on the establishments, which they contend promote
teen drug use and attract crime into neighborhoods.

The Anaheim case, which was heard last week by the Fourth District
Court of Appeal, has attracted widespread attention among medical
marijuana activists and local governments. If the court upholds the
ban, it may encourage other cities and counties to ban dispensaries,
medical marijuana activists say.

A ruling is expected in the Anaheim case within 90 days.

Joe Elford, an attorney with the medical marijuana advocacy group
Americans for Safe Access, said the two cases are different. That's
because the Anaheim law not only bans dispensaries, but makes it a
crime to operate them.

"Unlike the Anaheim case, the Claremont case does not involve
criminal penalties ... so I don't think it will impact the Anaheim
case," Elford said.

The Second Court of Appeals also did not analyze in detail whether
the Claremont law pre-empts the state's medical marijuana program,
Elford said. Pre-emption is a legal term meaning that when laws
conflict, the law from the higher jurisdiction supersedes the lower one.

Dunn said he agreed that the criminal aspect of the Anaheim law makes
it different from the Claremont case. But he said he disagreed that
the court did not significantly consider the question of pre-emption.

The opinion thoroughly analyzed state preemption law and determined
that cities and counties can retain their power to regulate and, if
necessary, restrict dispensaries in their jurisdiction, Dunn said.