STATE APPEALS COURT THROWS REGULATING MEDICAL MARIJUANA A CURVE

Last month the California Second Appellate District threw out the
city of Long Beach ordinance regulating medical marijuana
dispensaries. If allowed to stand this ruling could disallow the
Mendocino County zip tie program.

The October 4 ruling determined the City of Long Beach ordinance
regulating medical marijuana dispensaries exceeded the intent of the
state's compassionate use act to protect medical users from state and
local prosecution. The basis for the ruling concluded since Long
Beach imposed fees and issued permits for dispensaries to operate it
had gone "beyond decriminalization into authorization." This puts the
ordinance into violation of federal law by obstructing federal
enforcement efforts. The court stated "the CUA simply decriminalizes
(under state law) the possession and cultivation of medical
marijuana; it does not attempt to authorize the possession and
cultivation of the drug."

Whether this will actually affect the Mendocino County medical
marijuana cultivation ordinance will depend upon whether the ruling
remains published and if the California Supreme Court decides to
review it. The ruling was slated to become law within 30 days of the
October 4 publication but a challenge was filed October 13 requesting
it be "depublished." In addition, because this ruling appears to be
in conflict with prior appeals court opinions, it seems likely an
appeal will be made for the California Supreme Court to help clarify
the issue. If the higher court chooses to review the case, no action
will be required by other jurisdictions potentially affected by the
ruling, including Mendocino County, until after the Supreme Court rules.

Following the Long Beach ruling, coupled with the intensified push by
federal officials threatening local officials with criminal
prosecution if they either pass or refuse to repeal all ordinances
allowing medical marijuana facilities, a growing number of cities
have begun repealing such ordinances.

According to Mendocino County Counsel Jeanine Nadel, the county has
yet to receive any letter from federal agencies challenging the
county's medical marijuana ordinance. She has recommended a
wait-and-see approach to the Board of Supervisors on existing
ordinances while the Long Beach ruling is being assessed for either
depublishing or Supreme Court review. She has also recommended
tabling work on any dispensary ordinance until the issue has been clarified.