A tentative opinion was issued recently by the State of California’s 4th District Court of Appeals in the case of City of Riverside vs. Inland Empire Patients Health and Wellness Center… and the Court’s opinion is not the least bit favorable toward Medicinal Cannabis Dispensaries (MCDs) statewide.
The Court has tentatively concluded that under existing state laws, cities and counties can ban collectives under their zoning ordinances.
After careful legal review of the details of the case, it is an accepted opinion that this decision by the 4th District Court of Appeals will be a death blow to any dispensary in any jurisdiction which is unfriendly to the establishment of MCDs.
Once the 4th District Court’s Tentative opinion becomes final, cities can totally ban dispensaries under their zoning ordinances stating they are nuisances.
This could very well result in the closure of the vast majority of the collectives operating with store-front distribution systems.
This is an extremely serious challenge to MCDs across the state that can only be overcome by the passage of the landmark Inititive known as RMLWA2012. Let’s be clear here. The chances of reversing this Tentative Opinion are dismal to nil. We will encourage ALL dispensary owners to check out the “Regulate Marijuana Like Wine Act of 2012″.
[Regulate Marijuana Like Wine Act of 2012] is a no nonsense approach to taking control from the hands of the DEA and regulating cannabis in a manner that would benefit ALL Californians while not changing any Medical Marijuana Laws at all, or adding new imposed taxes on the sale of this amazing plant. We’ll have more on the Fourth District Court’s ruling and how it affects us all as patients… upcoming.
Medical marijuana dispensary ban case headed back to appeals court
One of California’s most-watched medical marijuana cases is headed back to the state Court of Appeal for what could eventually be a crucial ruling on whether cities and counties have the power to ban dispensaries — as more than 200 cities and 15 counties have already done.
In a case that has bounced around the courts, a Superior Court judge in Orange County decided this week that Anaheim’s 4-year-old ban on dispensaries does not violate state law. After presiding over a trial in May, Judge David Chaffee concluded that neither the ground-breaking medical marijuana initiative passed by voters in 1996 nor the state law that followed seven years later preempt local ordinances intended to regulate the distribution of the drug.
The decision was celebrated by anti-drug activists.
“I think both sides have been watching this case more so than any other,” said Paul Chabot, president of the Coalition for a Drug-Free California. “We are excited about this. We think it’s going to encourage the cities that are on the sidelines to join with the majority of California cities in banning dispensaries.”
But Anthony Curiale, the attorney for Qualified Patients Assn., a dispensary that sued Anaheim in 2007, said he plans to file an appeal.
“Their ordinance is unconstitutional, it’s invalid, it conflicts with state law,” he said. “I believe Judge Chaffee is wrong in his interpretation of law.”
The case has already been before the 4th District Court of Appeal in Santa Ana, but a three-judge panel sent it back to the lower court for a trial, disappointing both sides who had hoped the long-debated issue might be settled.
Curiale said he could not predict when the appellate court might rule again. “Oh, God knows,” he said. “If I knew that I’d be at the racetrack.”
Curiale and Moses W. Johnson IV, the assistant Anaheim city attorney handling the case, both speculated that it could take a year before the appeal court rules, but both also said they would ask the court to speed up consideration of the case.
Origin: The Murrietta Patch The city of Murrieta’s legal staff will seek a permanent injunction against a medical marijuana dispensary that recently reopened.
The decision was made during closed session prior to the start of Tuesday’s City Council meeting, according to Murrieta City Attorney Leslie Devaney, and comes after the dispensary reopened Saturday.
Cooperative Medical Group, or CMG Outreach, received a stay on a temporary injunction to reopen after being closed since August. The stay was issued Thursday by the 4th District Court of Appeals, Division 2, in Riverside.
“There was one judge who issued a stay with no reasoning,” Devaney said.
“We certainly want to move forward with the goal of cease and desist,” Devaney added.
Beth Burns, co-owner of CMG, located at 26690 Madison Ave., Suite 103, said the stay came earlier than they expected it to. Burns and partner Charles Thompson are not new to the medical marijuana business. As Azusa residents, they’ve operated a delivery business in the San Gabriel Valley for some time.
“We have been in business a long time. We are not new to this,” Burns said during an interview Tuesday at the dispensary.
“This is a serious thing. We’ve decided to stay because we’ve put a lot of time and effort into this. There was a 50/50 chance we would get the stay. If we close down, seven people would be out of work.”
CMG is licensed to dispense medical marijuana by the state Board of Equalization. However, the city of Murrieta placed a ban on dispensaries in 2005. Assembly Bill 1300, signed Aug. 31 by Gov. Jerry Brown, reiterates cities’ rights to regulate the operation, location and establishment of dispensaries in their jurisdiction.
J. David Nick, attorney for CMG, said AB 1300 says nothing about cities being given the authority to ban dispensaries outright.
Since reopening Saturday, Burns said officers with the Murrieta Police Department code enforcement have been issuing them daily tickets of $2,500 for remaining in operation.
“Their fines are meaningless; they are just scare tactics,” Nick said by phone Wednesday. “This issue is likely headed to Supreme Court, where the vote is going to be close.”
As for the city’s intent to seek a permanent injunction against the dispensary, Nick said the city would need new evidence since the injunction was stayed until the appeal is over. The first injunction was granted when a judge ruled it a public nuisance, partly due to the fact that is located near an indoor children’s play area, Sky High Party Zone.
“The court of appeal made it very clear. They are just trying to find a way around the ruling,” Nick said. “All they are doing is wasting taxpayer money.”
Murrieta police Lt. Tony Conrad said the department is conducting “high-visibility enforcement” of the dispensary since it reopened.
“CMG did in fact receive a stay which allows the business to re-open (per the court),” Conrad wrote, in an email to Patch. “At issue is the fact that CMG is open and conducting business in violation of several city of Murrieta municipal codes. These are the violations we are focused on at this time.”
The lieutenant said the code violations deal with the dispensary’s business license.
“CMG applied for a business license as a property management group–this is a fraudulent application for a license,” Conrad said. “CMG is in violation of the Murrieta municipal codes each day they are open for operation.
“As far as CMG’s business practice itself, the Police Department is concerned with the fact that this type of business traditionally brings with it several types of crimes,” Conrad continued.
He said marijuana rip-offs or robberies are common, as well as burglaries.
CMG was burglarized when it first opened in July.
“In addition to the thefts, customers of marijuana dispensaries at times use the product at a nearby location and drive under the influence after their use,” Conrad wrote.
“…we have also known marijuana dispensary customers to purchase from the dispensary and redistribute the product (sales). This is by no means an all encompassing list, but it brings home the point that this business is considered by the police department to be a nuisance and a safety concern for the city of Murrieta.”
Burns fears the stepped-up enforcement is keeping customers away.
Tuesday, 18-year-old Joel Tucker, who was prescribed medical marijuana after being diagnosed with degenerative arthritis in his wrist, said he was pulled over by commercial enforcement officers shortly after leaving the dispensary.
The officers conducted a search of the vehicle, according to Tucker, but he was not cited and was allowed to proceed on his way in possession of the medical marijuana he’d recently purchased.
Regarding the vehicle stop experienced by Tucker, Burns said, “They are here to protect and serve so how are these patients breaking the law?”
Burns said they have increased security at the dispensary since the initial break-in in July, and have not been burglarized since. As for the business license, Burns said they will wait until the litigation is over. Attempts to obtain a business license for the dispensary, in addition to the property management license, were denied by the city previously, according to Burns.
“Litigation is lengthy and that could be expensive,” Burns said. “In the mean time, it is costing both parties. All I can do is just sit here and just make sure the patients don’t get harassed.”