Riverside

CALIFORNIA SUPREME COURT TO REVIEW CITY'S POT DISPENSARY BAN

A lower court's ruling upholding Riverside's ban has been used as
precedent for other cities to control medical marijuana

The California Supreme Court will review a city of Riverside medical
marijuana case in which a lower court ruled that cities and counties
have the right to ban dispensaries.

Local governments throughout the state have used that decision,
issued in November by the Fourth District Court of Appeal, to shut
down medical marijuana clinics within their boundaries.

That court ruled that nothing in the state's1996 Compassionate Use
Act (Prop. 215) or the state Legislature's Medical Marijuana Program,
which outlines usage, pre-empts cities from banning the facilities.

The Riverside ruling was one of four medical marijuana cases the
State Supreme Court voted to accept Wednesday. In hearing the cases,
the court will try to tackle federal and state issues regarding
medical marijuana and the dispensaries that sell it, and also address
more fundamental questions of local control.

The court voted 7-0 to hear the Riverside case.

The justices also will hear an unpublished ruling on Upland's
dispensary ban, which closely followed the language of the Riverside
ruling; a Long Beach case that addresses the illegality of marijuana
under federal law and whether that preempts local officials from
regulating dispensaries; and a Dana Point case that looks into who
has standing to challenge local ordinances regulating dispensaries.

"It was only a matter of time before the California Supreme Court
would take on the issue, and the time is now," said Jeffrey V. Dunn,
an Irvine-based attorney with Best Best & Krieger who represents
Riverside in the case. "Federal pre-emption, state law pre-emption
and standing - in one day the Supreme Court has decided to review
this law in a comprehensive fashion."

Riverside City Attorney Greg Priamos said he believed the court
recognized the importance of the cases and wants to clarify the law.

"We remain cautiously optimistic that the Supreme Court will uphold
the city and county land use authority; that cities and boards of
supervisors have the right to establish land-use policies, and the
city's right is not preempted by state law," Priamos said.

J. David Nick, the attorney representing dispensary owners in
Riverside, said a unanimous vote to hear a case is rare. He also
noted that the court took the case even though there are no
conflicting appellate decisions on the issue regarding the Riverside case.

"That is an indication the court has a deep concern over decisions
made by the appellate court," Nick said. "You could change the object
to bananas, and we would still be arguing the same ideals. It is a
very clear rule that the California Supreme Court has established:
Local governments cannot ban through any device what state law makes legal."

But Dunn said that also goes the other way.

"The state cannot pre-empt local government authority," he said.

Attorney Roger Jon Diamond, who represented dispensary owner G3
Holistic in the Upland case, said he believes the lower court
overreached in allowing cities and counties to enact an outright ban
on clinics.

Diamond says local governments have the right to regulate location,
hours and facades of the dispensaries through zoning laws, "but it
seems like the whole Inland Empire is up in arms over medical
marijuana. I believe a total ban has taken the place of zoning,"
Diamond said in a telephone interview from his Santa Monica offices.

The Long Beach case does not involve a ban. That city agreed to allow
medical marijuana dispensaries under a permitting process.

A dispensary claimed the permit rules were too stringent. But an
appellate court overturned the Long Beach plan. It cited marijuana's
illegality under federal law, and said that pre-empted city officials
from making any rules about its sale.

The Dana Point case looks at who has standing to challenge local
medical marijuana regulations - does it have to be an owner, or can
it be a dispensary user?

The court in its decision to take the cases did not set a briefing
schedule for attorneys; that will be the next step in the case.