SAN FRANCISCO Medical marijuana dispensaries are in danger of getting zoned out.
The California Supreme Court strongly hinted Tuesday that municipalities have the right to ban dispensaries via local zoning laws.
Tackling an issue that has vexed state appellate courts, the justices indicated that state laws blessing marijuana cooperatives shield them only from criminal prosecution under California law, and do not interfere with municipalities' traditional power to regulate them as a local business.
An attorney for a cooperative argued that the city of Riverside has abused that power by adopting an ordinance that bans pot dispensaries anywhere in the city. "If you were to allow these dispensaries to be banned county by county, city by city, that would be the exact opposite of what the Legislature intended" when enacting the state's Medical Marijuana Program in 2003, said J. David Nick.
But the justices sounded largely unmoved by Nick's appeals to legislative purpose. "The purposes by themselves are not operative," said Justice Goodwin Liu. They "don't require or prohibit anybody from doing anything."
"Don't we start with a presumption that the ordinance is valid?" asked Justice Ming Chin.
"Why do we even have to indulge in a presumption?" asked Liu.
Nick argued in City of Riverside v. Inland Empire Patient's Health and Welfare Center that California's 1996 medical marijuana initiative and the 2003 legislative amendments establish the right to operate dispensaries in at least one location in a city. The goals of the 2003 legislation included enhancing "access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects" and shielded such projects "from state criminal sanctions" under various specified laws. Those laws include Health & Safety Code §11570, a public nuisance law directed at drug houses.
Nick says in his briefs that jurisdictions all over the state, including San Jose, the city of Los Angeles and Sacramento County, are pursuing ordinances similar to Riverside's, putting state marijuana laws "in a complete state of chaos."
On Tuesday, Justice Carol Corrigan suggested that the city's police power to enforce its zoning laws flow from the state Constitution, and therefore can't be undone by ordinary legislation. "I appreciate that you want to cling to §11570 and I would, too, if I were you," she told Nick, but doing so doesn't address the constitutional issue.
Justice Joyce Kennard seemed to concur. "The city's regulatory authority over land use ... does not derive from the Medical Marijuana Program," she told Nick. "It's a pre-existing power."
Nick argued that courts have refused to let cities enact ordinances that ban liquor stores and escort services. But Liu suggested the Medical Marijuana Program is intended to provide state immunities and "let there be some kind of local federalism" when it comes to regulation.
Kennard added that while Riverside and other cities might ban storefront-type dispensaries, they probably can't block caregivers from working together informally to cultivate and share marijuana.
Best Best & Krieger partner Jeffrey Dunn, representing the city of Riverside, faced only half-hearted questioning from the justices, with the exception of Kathryn Mickle Werdegar. The Medical Marijuana Program may allow cities to regulate the location or establishment of a cooperative, she said, but does "the commonsense meaning of regulate" include "prohibit"?
Dunn said yes, but Werdegar described that position as "debatable."
While expressing doubt that the law expressly pre-empts local ordinances, "I think the argument for implied pre-emption has greater strength," she said.
Dunn argued that Riverside's ordinance is required by federal laws criminalizing marijuana sales, but the justices steered him away from the federal pre-emption issue.