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One of California's most-watched medical marijuana cases is headed back to the state Court of Appeal for what could be a crucial ruling on whether cities and counties can ban dispensaries.
In a case that has bounced around the courts for four years, a Superior Court judge in Orange County decided this week that Anaheim's ban on dispensaries does not violate state law.
But Anthony Curiale, attorney for the Qualified Patients Assn., a dispensary that sued Anaheim in 2007, said he will appeal. "Their ordinance is unconstitutional, it's invalid, it conflicts with state law," he said.
After presiding over a trial in May, Judge David Chaffee concluded that neither the groundbreaking 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.
"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."
Chabot's organization says 224 cities and 15 counties have banned dispensaries. Americans for Safe Access, which advocates for medical marijuana, counts 161 city and 17 county bans.
Anaheim isn't the only city whose ban is being challenged. Joe Elford, chief counsel for Americans for Safe Access, estimates there are at least 10 other cases. But this suit "remains a good test case," he said.
The lawsuit 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. 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 said they would ask the court to expedite its decision.
Anaheim's ban remains in place, but as many as 50 dispensaries now operate in the city, including Qualified Patients. "They're kind of operating under the radar, so to speak," said Johnson, noting that the city has moved to shut down about half a dozen dispensaries. "We've gone after some of the newer ones."