Appeals Court says No Banning Dispensaries in California Cities

[RAGGA MON]

The only problem is that cities and counties can still enforce zoning laws! they may not be able ban dispensaries but they sure as hell can limit if not eliminate dispensaries simply on zoning ordinance alone.

 

[Payaso]

Thanks for reading through that SeaMaiden... lot of verbage to digest. Much appreciated, what else did you find while looking it over?

 

[Hammerhead]

thats great news, I dont see how a dispensory could stay in business with such a restriction.

 

[Hash Zeppelin]

then the black market goes crazy again, price goes back up, and they have to deal with all the fall out of that, and so do patients.

 

[DoobieDuck]

Thanks everyone for a friendly intelligent discussion here. I need to educate myself on this and you are providing some valuable insight...

...And this ruling says that they cannot simply declare it per se nuisance because they want it to be, they have to show more cause at this point. ....

The only problem is that cities and counties can still enforce zoning laws! they may not be able ban dispensaries but they sure as hell can limit if not eliminate dispensaries simply on zoning ordinance alone.

A big interest to me, and a lot of our followers, is this ^ ^..I'm watching a County North of me, Modoc "where the west still lives"..who just banned all cultivation countywide because of the dangers it might bring to the public. This I believe is a zoning law. Sea Maiden it goes right along with what you're saying they can't do! They made an acception for 6 plants per parcel for qualified medical patients, limiting that to two patients per parcel. The City there, and there's only one, is considering banning all dispensaries, yet I'm unsure if there's one there now. I'm guessing they had not done their homework on this new ruling before adopting their resolution. I'll keep you posted on what goes on there.

then the black market goes crazy again, price goes back up, and they have to deal with all the fall out of that, and so do patients.

HZ that ^ ^ was the very thing that first crossed my mind when I read this ruling. I do consider it a step in the process but after reading everyones input I'm unsure if it's in the right direction or not. Cheers...DD

 

[paladin420]

what I recall from my time on a zoning board. Zoning is to controll 'use' not stop it completely. The fact the this is still a felony is the only real legal leg that applies,imho of course. whore house = illeagal = not allowed,peroid....porn store = legal = only in certain locations

 

[SeaMaiden]

Thanks for reading through that SeaMaiden... lot of verbage to digest. Much appreciated, what else did you find while looking it over?

That the justices in our appellate courts are in a state of complete and total disagreement OR confusion. That the declaration of a 'per se nuisance' may be more easily challenged (this is what I'm fighting in my county--they've called cannabis cultivation a per se nuisance, a nuisance simply for being what it is). And most hearteningly for me, that local munis may not subvert state law simply because they don't like it, there is this thing called 'intent' and they're going to be held to that standard, not just the letter of the law.

That the ruling jurists found reason to support the notion that the spirit or intent of the CUA and MMPA was for these storefronts to GROW in situ is something I really don't get. I don't see the legal compulsion for that aspect of the ruling. It absolutely creates some real issues that would lead to a hardship for a proprietor (I'm thinking of an outfit like Today's Health Collective run by the three sisters) or force said proprietor to seriously blow things up, Harborside-stylee.

 

[SeaMaiden]

The only problem is that cities and counties can still enforce zoning laws! they may not be able ban dispensaries but they sure as hell can limit if not eliminate dispensaries simply on zoning ordinance alone.

This is the next step, and why I'm focused on the notion of cultivation or storefronts being labeled 'per se nuisance'. That's the important bit of, or one of them, of this ruling.

However, folks should also be aware that because in most areas zoning ordinances are what are being used, this actually saves us from certain types of heartache. For instance, sheriff's department or other PD being called out for a non-health & safety violation of zoning ordinance? Not gonna happen (or, it shouldn't). Also, state law limits redress (i.e. fines, citations and other means and methods used to get someone to comply).

I'll use my county as the example here and our county code section 2.06, which spells out who the monitoring people are, who the enforcers are, and, this is key, what the available penalties are. IF a citation is issued to one of us for growing outdoors at this time, the most we can be dinged is between $100-$500, labeled at worst as an infraction.

NO criminal penalties may be levied against violators of these types of ordinances. Again, limitations placed by state law.

The rub here may be obvious--these munis are trying to outlaw rights afforded to patients by state law.

Thanks everyone for a friendly intelligent discussion here. I need to educate myself on this and you are providing some valuable insight...

A big interest to me, and a lot of our followers, is this ^ ^..I'm watching a County North of me, Modoc "where the west still lives"..who just banned all cultivation countywide because of the dangers it might bring to the public. This I believe is a zoning law. Sea Maiden it goes right along with what you're saying they can't do! They made an acception for 6 plants per parcel for qualified medical patients, limiting that to two patients per parcel. The City there, and there's only one, is considering banning all dispensaries, yet I'm unsure if there's one there now. I'm guessing they had not done their homework on this new ruling before adopting their resolution. I'll keep you posted on what goes on there.

Well, I'm not saying they can't declare per se nuisance, I'm saying what the ruling from the appellate court says is that it's legally challengeable. I would LOVE to be able to interpret a little more strictly this ruling to say that no one can make cannabis cultivation or storefronts per se nuisance, but I'm not sure that can be said right now.

As for Modoc and their zoning law, hopefully it's very poorly presented and doesn't cover issues like enforcement. Seriously. At pretty much every step we've asked our BoS about things like enforcement and it gets thrown back onto the planning department. This is great, actually, because they're limited by their own county code as to what they can do against 'violators'.

Right now the big question for me is whether or not I'm going to be one of the people who forces the zoning ordinance enforcement issue. Civil disobedience and such.

 

[DimeBag65]

from what i understand after you have become someones care provider ... your patients can bring in their "excess" meds to vend to their local dispensary ... this has been how the clubs have been getting around having to grow ALL their own meds i do believe? iv been outa the loop for a while so im sure someone else could jump in on this topic...

 

[kmk420kali]

SeaMaiden, do you see any issues of zoning, as far as the on-site growing requirements...creating a catch-22 situation between a store front zoning requirement conflicting with an Agricultural zoning requirement??

 

[bbing]

So at this point we have nothing limiting counts except the language of proposition 215. I would also appear That 215 does not live accounts per se.... State really can get involved in determining medical appropriateness including dosage amount interval frequency.

The lame conservative rigid interpretation that was used to limit dispensaries language like " involved in the cultivation"... Pet nothing to do with 215 n more to do with the definition of a collective for mutual benefit cooperative

I believe the new ruling only address is cities that you using zoning restrictions to limit access. And by virtue creating bans

 

[Mirage]

Redding council won't appeal court ruling: dispensaries can continue to operate

Redding council won't appeal court ruling: dispensaries can continue to operate

I find this interesting in light of the Lake decision....

I have to wonder how other cities and counties will react to this in regards to their ordinances etc. ?

Will local or state-wide activists use this as an example for other cities and counties to follow?

Perhaps a crack in the Wall ?

UPDATED: Redding council won't appeal court ruling; marijuana dispensaries can continue to operate.

Redding City Council will not appeal a judge’s ruling that rejected the city’s request for a preliminary injunction on medical marijuana storefront collectives.

The decision, reached tonight in closed session, means the city dispensaries can continue to operate.

“The law in the state of California is messed up — and that is an understatement,” said Mayor Dick Dickerson after the meeting. “Things are so fluid that it’s so hard to know (what is next). If Judge Baker had made his ruling eight or nine days earlier, I think it would have been a different outcome.”

About 40 people, several of them in support of medical marijuana dispensaries, showed up at tonight's meeting in support of a recent court decision backing the dispensaries' right to operate.

Only about six of those said they planned to address the council.

They were not in attendance to proclaim victory over the city, they said.

"I want to keep up the support for the people that truly need the medicine," said Pamela Bruce, a Redding resident.

Earlier a 5 p.m. rally planned by other medical marijuana supporters drew a sparse crowd.

A lone participant in a demonstration circled City Hall on his bicycle, waiting for other medical marijuana supporters to arrive for a rally. About 10 people, including those apparently opposed to medical marijuana dispensaries, eventually showed up. It was punctuated by a shouting match that broke out between two people over some harsh words exchanged on Facebook.

The event, called last Friday by James Benno, was to start an hour before the 6 p.m. City Council meeting to show support for last week's court ruling, striking down the city's ban on storefront collectives. The council is being briefed tonight in closed session about the case. It could decide to appeal the ruling.

Cities are in a fog over how to regulate the burgeoning industry, given a series of conflicting court rulings.

Redding's elected officials have said they were surprised and confused by Shasta County Superior Court Judge Stephen Baker's decision, handed down late last Wednesday.

There has been some blame going around over who mostly bears responsibility in this case -- from the city attorney's office for its legal advice to the council to state lawmakers for the ambiguity in state law on the issue.

http://www.redding.com/news/2012/mar...stration-bust/

 

[SeaMaiden]

215 never had language discussing limitations. 420 did, but that was struck. Now we have locals telling us how much we're allowed to have. (See my sig re: Amador County)

Essentially, you have the ruling correct. However, I feel that the ruling may possibly be used as a legal basis for challenging possibly any zoning ordinance that declares cultivation, storefronts, collectives or cooperatives per se nuisance.

 

[SeaMaiden]

Mirage, your first link was broken, here's what I've got as a live link: http://www.redding.com/news/2012/mar/20/redding-medical-marijuana-demonstration-bust/

SeaMaiden, do you see any issues of zoning, as far as the on-site growing requirements...creating a catch-22 situation between a store front zoning requirement conflicting with an Agricultural zoning requirement??

Not in this county, because of the all-out ban on storefronts. It's an interesting idea, though, something I'll chew on further, especially since we need to hold another meeting of CPR members prior to next week's BoS meeting.

That brings up another mildly interesting point--the assertion that cannabis is not a legally recognized agricultural product, like, say, alfalfa. Our legislature just passed the Hemp Farming Bill, wouldn't that make Cannabis spp. an agricultural product...?

Anyway, what's your thinking/idea behind the question?

 

[kmk420kali]

Anyway, what's your thinking/idea behind the question?

At this point, I have total distrust of the intent and/or further distortion of anything concerning MMJ-- I'm just trying to figure out how Local DA's (And the AG/DEA) are going to twist this to use it against us-- I am fully convinced that the day will come, when they will change the Federal Scheduling of Cannabis to a Schedule 2...and at the same time, put cultivation and possession of raw cannabis in the same position as opium-- Forcing ONLY the use of Pharmaceutics, ie; Marinol, Sativex, etc--
This is why I am such a huge supporter of Legalization for Recreational use!! I think that until this happens, the whole MMJ Program is in jeopardy--

 

[SeaMaiden]

You and I are in 100% agreement on ALL of the above. Let me snag a paper for you real quick here....

Here we go: http://pharmrev.aspetjournals.org/content/58/3/389.full

It's titled "The Endocannabinoid System as an Emerging Target of Pharmacotherapy"

 

[greenmatter]

i really hope all the people who have fought for MMJ over the years (and paid dearly in some cases) won't be seen/used as stepping stones in the evolution between "evil addictive drug" and "cash cow for big pharma".

 

[Payaso]

Excellent points Sea Maiden... thank you for the clarification here.

 

[Hrpuffnkush]

If the dispensory does grow on site do they need to keep there #'s @ 6 mature plants OR 12 immature plants AND up to 8 ounces of processed cannabis flowers on site.????

12 veg plants or 6 flowering plants .. thats Per patient...
More members collective has, the more allowed on premises

things is.. finding a location that meets sensitive area requirements and will let you grow on site it really tough.. or way too $$$$

 

[bbing]

As long as cities arethat telling you how much of things you can use
.... how many aspirins are people allowed to take up in the county?

Cuz their giving me a fukin headache...

215 establishes counts used to protect from arrest...there is language contained that clarifies as well as affirming amounts may be exceeded if medically appropriate ...(not intended to limit) AG guidelines /sb420 attempted to accomplish this but ..as we know...