City's medical marijuana ban to come before appeals court
SANTA ANA – Do cities have the right to ban medical marijuana dispensaries?
The answer may hinge on a lawsuit being heard Wednesday before California's 4th District Court of Appeal. A group of medical marijuana patients – called the Qualified Patients Association – are appealing an Orange County Superior Court judge's dismissal of their lawsuit that challenged an Anaheim ordinance that forbids such outlets and makes operators subject to criminal prosecution.
The group is asking the appeals court to revive their lawsuit and will argue the case at a 1:30 p.m. hearing.
The case could have far-reaching consequences for cities statewide, including some in Orange County, that have looked to the courts to keep marijuana dispensaries outside their city limits.
Anaheim unanimously approved the ordinance in July 2007.
"Concerned about drug-related crime and the use of marijuana without medical need, the city of Anaheim exercised its broad constitutional police powers … to prohibit medical marijuana dispensaries within the city,'' wrote Assistant City Attorney Moses Johnson in a brief in the case.
The city was sued in Orange County Superior Court over the ordinance, but a judge in February 2008 dismissed the lawsuit.
The patients now are appealing the dismissal, arguing that the ordinance "frustrates the purpose and intent of the Compassionate Use Act … by restricting and limiting availability and distribution of medical marijuana to qualified patients,'' the group's lawyer, Anthony Curiale, wrote in a brief.
The California Compassionate Use Act, also known as Proposition 215, which was approved by voters in 1996, allows for the use of marijuana for medicinal purposes.
Patients can legally use marijuana with permission from doctors under that law. However, federal law still forbids marijuana possession in most cases, which officials and lawyers say creates conflicts.
Several Orange County cities have since adopted ordinances that ban medical marijuana dispensaries, including Huntington Beach, Laguna Beach, Laguna Niguel, Garden Grove, Seal Beach, Lake Forest, Aliso Viejo, Laguna Hills and Orange. The only city in Orange County that has approved dispensaries is Laguna Woods.
More than three dozen cities and several statewide law enforcement groups have filed briefs in support of Anaheim's ordinance, including Costa Mesa, Cypress, Fullerton, Garden Grove, Newport Beach, Orange, Placentia, Tustin and Westminster, according to Americans for Safe Access, a national medical marijuana advocacy organization, which also has filed a brief in the case.
Other Orange County cities are pursuing separate litigation.
Lake Forest decided to file lawsuits this month against approximately 10 medical marijuana dispensaries, as well as property owners who leased commercial space to them, in an effort to stamp out the businesses. The city had already adopted an ordinance prohibiting businesses that do not adhere to state and federal law, in essence prohibiting the dispensaries within city limits.
Several collectives had already been established in the city and several more sprung up despite the ordinance.
By RACHANEE SRISAVASDI and SALVADOR HERNANDEZ
THE ORANGE COUNTY REGISTER
Tuesday, September 22, 2009