State Court: LB and Locals Can Ban Marijuana Shops

Updated 4:45 p.m. with Long Beach City Attorney reaction.

Do California statutes that protect patients from arrest if they use marijuana also protect pot dispensaries from prosecution by local cities and counties?

In its written opinion released Monday, the California Supreme Court determined local jurisdictions such as Long Beach can ban marijuana operations. In a city of nearly half a million people, Long Beach residents and government have wrestled with the legalized marijuana question, even as without much satisfaction by any of the parties.

Long Beach City Attorney Robert Shannon responded to the ruling with the following e-mail:

" The Supreme Court today ruled that a municipality  has the right, pursuant to its inherent land use authority, to prohibit/ban medical marijuana facilities within its borders. The court further finds that neither the Compassionate Use Act of 1996 (enacted by the electorate), nor the Medical Marijuana Program legislation were intended to preempt (prevent) local action to ban this activity.  The language of the court decision confirms the opinion of this office that Long Beach may ban or permit and regulate. Parenthetically, this decision effectively nullifies the opinion of the Court of Appeal in Pack v City of Long Beach. Long Beach currently has a "soft" ban in place, clearly permitted by today's decision."   

The high court’s Monday decision follows months of anticipation stemming from a local case, , in which the defendant argued that under state law, the city had no right to shut down its medical marijuana facility.

In its argument, the Inland Empire Patient's Health and Wellness Center used two state statutes to make its case. In 1996, California voters approved the Compassionate Use Act (CUA), which allows possession and cultivation of marijuana for personal medical purposes upon the written or oral recommendation or approval of a physician. In 2004, the California lawmakers also adopted the Medical Marijuana Program (MMP), designed to streamline the 1996 law and allow patients to band together to cultivate and distribute marijuana for medical purposes only.

The high court recognized the CUA and the MMP in its opinion Monday, but ruled the statutes don’t dictate whether local jurisdictions can ban pot facilities.

“… the CUA and the MMP are careful and limited forays into the subject of medical marijuana, aimed at striking a delicate balance in an area that remains controversial, and involves sensitivity in federal-state relations.

"We must take these laws as we find them, and their purposes and provisions are modest. They remove state-level criminal and civil sanctions from specified medical marijuana activities, but they do not establish a comprehensive state system of legalized medical marijuana; or grant a ‘right’ of convenient access to marijuana for medicinal use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local accommodation of medical marijuana cooperatives, collectives, or dispensaries,” the justices found.

“Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders,” the opinion read.

In the exercising their land use powers, the City of Riverside and all other local jurisdictions are allowed, under zoning ordinances, to prohibit pot facilities as a use and abate them as a public nuisance, the high court ruled.

“The California Constitution recognizes the authority of cities and counties to make and enforce, within their borders, ‘all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. This inherent local police power includes broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction’s borders, and preemption by state law is not lightly presumed,” the justices wrote.

Marijuana is illegal under the federal Controlled Substances Act (CSA). In its opinion Monday, the state’s high court elaborated on the federal-versus-state issue.

“The CUA and the MMP have no effect on the federal enforceability of the CSA in California. The CSA’s prohibitions on the possession, distribution, or manufacture of marijuana remain fully enforceable in this jurisdiction,” the justices wrote.

Joe Elford, chief counsel with Americans for Safe Access, the country's leading medical marijuana advocacy group, which filed an amicus "friend of the court" brief in the Riverside case, was critical of today’s opinion.

"While the California Supreme Court ruling ignores the needs of thousands of patients across the state, it simply maintains the status quo," he said."Notably, the high court deferred to the state legislature to establish a clearer regulatory system for the distribution of medical marijuana, which advocates and state officials are currently working on."

Marijuana advocates are urging state legislators to pass pending medical marijuana regulatory bills, including SB 439, introduced by State Senate President Pro-Tem Darrell Steinberg (D-Sacramento) and Senator Mark Leno (D-San Francisco), and AB 473, introduced by Assembly member Tom Ammiano (D-San Francisco).

"The ball is in the legislature's court to establish statewide regulations that both meet the needs of patients and keep communities safe,” said Don Duncan, California's policy director for Americans for Safe Access, an advocacy group that supports medical marijuana. "Patients should not be pushed into dark alleys in order to obtain a medicine that has been deemed legal by the voters of California."

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