POT RULING PROMPTS REVISION OF DISPENSARY BAN

COSTA MESA - A recent appeals court decision that cities should not
invoke federal law as grounds for banning medical marijuana
dispensaries has prompted Costa Mesa to revise its ban on the facilities.

The Planning Commission voted 4-1 to recommend a revision of the ban
to the City Council.

The new ordinance would state that the city has never sought
prosecution of medical marijuana dispensaries and "does not intend to
do so in the future." However, it would leave misdemeanor and
infraction penalties in place, even though the Fourth District Court
of Appeal frowned on criminalizing dispensaries "solely on the basis"
of medical marijuana activities.

The city's move came in response to the appeals court's decision Aug.
18 in Qualified Patients Association vs. City of Anaheim.

The court declined to decide the legality of dispensary bans for
procedural reasons, and returned the case to trial court with
instructions. Its ruling is not binding on cities.

The ruling does provide a view on the court's thinking on some
aspects of the issue, such as federal drug law, criminal penalties,
and what sort of regulations might be allowed.

The court rejected the idea of a conflict between state and federal
laws on marijuana. Such a conflict would exist if the state required
people to possess marijuana, but permission is not the same as a
requirement, the court said.

Citing the decision in Felix Kha's lawsuit against the Garden Grove
Police Department, the court ruled that no conflict arises "based on
the fact that Congress has chosen to prohibit the possession of
medical marijuana, while California has chosen not to."

It concluded, "the city may not justify its ordinance solely under
federal law, nor in doing so invoke federal preemption of state law
that may invalidate the city's ordinance."

Although state law prohibits criminal prosecution of medical
marijuana groups under drug laws, the court said that it remains to
be determined whether local governments may use nuisance abatement
laws to ban dispensaries.

It suggested that some restrictions could be allowed, such as one on
dispensaries that do not grow marijuana on-site.

The Costa Mesa ordinance, in response, would specifically ban
dispensaries using off-site growers.

Current city law defines a dispensary as any one person involved with
medical marijuana; the revision would change that to three people.

Commissioner Colin McCarthy was the lone no vote. He said the city
was getting ahead of itself by aligning with the court's
interpretation rather than waiting for binding orders.

Sue Lester, a council candidate who runs a dispensary, praised the
commission for "taking the high road."