Appeals court declines to say if local authorities can ban pot dispensaries

[bigbrokush]

http://www.latimes.com/news/local/la-me-0819-pot-bans-20100819,0,5365716.story

Appeals court declines to say if local authorities can ban pot dispensaries
The dispute over Anaheim's 3-year-old ban on medical marijuana outlets is sent back to the lower court. But the judges do reject the city's position that U.S. law trumps California's laws on the issue.


A state appeals court Wednesday declined to decide whether California's medical marijuana laws prevent cities and counties from outlawing dispensaries, sending the closely watched dispute over Anaheim's 3-year-old ban back to the lower court for more hearings.

Cities and dispensaries had been anxiously anticipating a major decision because the 4th District Court of Appeal in Santa Ana had asked for additional information and took an unusually long time to reach a ruling: a year rather than the usual three months.

"We thought this case would cause things to break heavily in one way or another," said Joe Elford, chief counsel for Americans for Safe Access, a medical marijuana advocacy group.

The appeals court, however, did reject Anaheim's contention that the federal Controlled Substances Act preempted the state's medical marijuana laws and thus made dispensaries illegal. Orange County Superior Court Judge David R. Chaffee had sided with the city on that issue.

Anthony Curiale, the attorney for the dispensary that filed suit, said cities and counties can no longer cite federal law to argue dispensaries are not allowed. "That's out the window," he said. "This opinion is very, very important from our point of view."

Several previous court decisions have reached similar conclusions. "As much as we want to put that argument out of its misery, we just can't shake it," Elford said.

Anaheim officials said the city's attorneys will meet next week with the City Council to consider the next step. The city could ask the state Supreme Court to review the decision.

Qualified Patients Assn., a dispensary run by Lance Mowdy, sued in 2007 to overturn Anaheim's ordinance making it a misdemeanor to operate a dispensary. Curiale declined to say whether the dispensary was still in business. Other dispensaries have opened in the city despite the ban.

"I'm not going to say that some don't exist that are bucking the law," said Moses W. Johnson IV, an assistant city attorney.

Far more cities and counties in California prohibit dispensaries than allow them. Americans for Safe Access says 133 cities have banned dispensaries and 99 have moratoriums, while nine counties have bans and 15 have moratoriums. Only 38 cities and nine counties allow dispensaries.

Although the three appellate judges declined to rule on the legality of bans, Curiale said, "They seem to imply that they're skeptical that the cities have the right to completely ban it."

The judges said "it seems odd" that the state Legislature would have intended to let cities and counties ban dispensaries. But they also said the issue "is by no means clear-cut or easily resolved on first impressions."

The judges acknowledged that they were "anxious" to decide "this important and interesting question" but said they had "precious few facts."

 

[JackTheGrower]

So the one thing they said is they cannot use the Federal Law as a shield.

So lets see what Bull Shit they come up with now. Every county needs at least one Dispensary even if it a County run facility.

A California appeals court issued a split ruling Wednesday in a closely watched medical marijuana case but failed to decide whether cities in the state can ban pot dispensaries or be forced to accept them.

Ruling in the case of an Orange County medical marijuana patients' group that sued after being denied the right to operate a dispensary in Anaheim, the 4th District Court of Appeal rejected city arguments that state legislation allowing dispensaries improperly amended California's 1996 medical marijuana law.

But the court also rejected arguments by Qualified Patients Association that the Anaheim ban violates California's Unruh Civil Rights Act against discrimination.

The ruling seemed to offer little to celebrate for either side as the appeals court kicked the case back to Orange Superior Court to consider the merits of the Anaheim ban.

"We express no opinion on the merits of the parties' positions but instead remand (the case back to the lower court) to allow the parties and the trial court to address these issues in further proceedings," wrote Judge Richard M. Aronson in the decision.

The ruling reversed a 2007 Orange County court decision that upheld the Anaheim ban on grounds that federal marijuana law supersedes legal medical pot use in California.

But the appeals court offered no ruling on whether Anaheim – and more than 130 California local governments – can bar pot shops under local zoning and public nuisance laws.

That was disappointing news for George Mull, an attorney for a Sacramento-area dispensary – the Galt Wellness Center. He was hoping a clear-cut verdict would help overturn a court order that let the city close the Galt dispensary last week.

"I was hoping for a lot more than this." Mull said. "This is basically of no help at all."

Read more: http://www.fresnobee.com/2010/08/19/2046229/appellate-pot-ruling-leaves-both.html#ixzz0x4h2UEvQ

 

[bigbrokush]

They are running out of things to use to keep em out now. And to say that we don't want one is not good enough

 

[desertdweller]

since when are local elected officials fed employee or agent, if they dont like dispensaries, say so. they were elected to abide by local and state law. if you want to enforce fed law, then go work for the DEA and leave us alone.

 

[emkman]

They are still using zoning to shut them down, regardless of federal law. There is a vote on a ban (zoning ordinance) in Santa Barbara, CA this November, and we have had dispensaries for almost ten years! Check out www.NoOnMeasureT.com to help fight the ban. Thanks.

 

[vta]

There is a vote on a ban (zoning ordinance) in Santa Barbara, CA this November, and we have had dispensaries for almost ten years!

Your leaving out an very important part. The fact that they are putting 2 initiatives on the ballot. One that bans and one that allows a certain number. They(city council) are leaving it up to the voters...not just trying to ban.

 

[Pythagllio]

The California State Constitution specifically states that California authorities are to enforce California law when it conflicts with Federal law unless an appellate court has held the California law to be unconstitutional. These California authorities trying this bullcrap have been specifically directed by the State Constitution that State law is what's to be enforced in the absence of being directed otherwise by the judiciary.

CALIFORNIA CONSTITUTION
ARTICLE 3 STATE OF CALIFORNIA


SEC. 3.5. An administrative agency, including an administrative
agency created by the Constitution or an initiative statute, has no
power:
(a) To declare a statute unenforceable, or refuse to enforce a
statute, on the basis of it being unconstitutional unless an
appellate court has made a determination that such statute is
unconstitutional;
(b) To declare a statute unconstitutional;
(c) To declare a statute unenforceable, or to refuse to enforce a
statute on the basis that federal law or federal regulations prohibit
the enforcement of such statute unless an appellate court has made a
determination that the enforcement of such statute is prohibited by
federal law or federal regulations.

http://www.leginfo.ca.gov/.const/.article_3

All of these extrajudicial authorities are breaking State law when they try to say that Federal law supersedes California law. Since there's never been an appellate decision either State or Federal holding Prop 215 or SB420 to be invalid, it's their fucking job to enforce California law. Prop 215 has been examined by the SCOTUS 3 separate times. If they were going to toss the law, it would be gone.

These same assholes try to use 'its the law' as some kind of justification when it's a law that they like. Tell these people to take their self righteous bullshit and shove it, then tell them 'its the law' if they object. Fucking hypocritical assholes.

 

[Pythagllio]

I'd have a hard time arguing that local communities can't use zoning to ban retail dispensaries. Liquor stores are legal in CA. Can't a community say they want no liquor stores in their community? Now putting some bullshit $15,000 license fee on a 5x5 grow space is egregious on its face, as is the communities trying to limit the number of plants a cooperative can grow on a single parcel.

I've got to say it is amusing watching the 'its the law' crowd breaking the law. Amusing like a traffic wreck anyway.