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Dispensaries can't be banned, but must grow pot on site

A Court of Appeal panel in Santa Ana voids Lake Forest's zoning ban on clinics, but rules that they can only sell marijuana they grow, a regulation that would force most to close.

March 01, 2012|By Maura Dolan, Los Angeles Times

California cities may not ban medical marijuana dispensaries, but the operations may sell only weed that is grown on site, an appeals court ruled in an Orange County case.

The unanimous decision by a three-judge Court of Appeal panel in Santa Ana was the first in the state to prohibit cities from enacting zoning restrictions that effectively ban all marijuana dispensaries. The court was also the first to rule that dispensaries must grow the marijuana they sell, a requirement that would force most of them out of business.

The ruling, issued late Wednesday, struck down a zoning law in the city of Lake Forest that the judges said amounted to "a total bar contradicting state law."

"A local government cannot ban as a nuisance exactly what the Legislature contemplated would occur at cooperative and collective medical marijuana cultivation sites," Justice Richard M. Aronson wrote for the court. Aronson, appointed to the trial bench by former Gov. Pete Wilson and elevated by Gov. Gray Davis, was joined by a Republican appointee and a Democratic appointee.

The decision conflicted with other appellate court rulings on medical marijuana, and attorneys in the case said they expected the California Supreme Court would agree to hear an appeal.

David Welch, an attorney for a now-closed Lake Forest medical pot operation, said cities should heed this week's ruling and "not implement bans simply because that is the easy route." Municipal bans of medical marijuana have proliferated since voters decriminalized the weed for medical purposes in 1996. For every city that permits medical marijuana operations, nine others ban them, Welch said.

Jeffrey Dunn, a lawyer who represented Lake Forest, said the court's requirement that dispensaries sell pot grown only on site would shut down most storefront operations.

"I don't see how you can grow in a tiny, rented space enough pot for over 1,000 customers," Dunn said.

The federal government, acting at Lake Forest's request, forced more than 30 medical marijuana dispensaries in the city to close last year. Welch said his client would seek to reopen, but Dunn, citing an expected appeal, predicted that would not happen.

The Lake Forest decision added to a stack of rulings that have befuddled local governments and was unlikely to add much clarity.

One appeals court upheld the right of cities to use zoning laws to prohibit dispensaries. Another said city regulations that allow any medical marijuana violate federal law. A federal judge this week threw out a lawsuit to prevent the federal government from shutting down dispensaries.

"What perplexes me is this opinion issuance without references to other opinions that are being issued," Special Assistant Los Angeles City Atty. Jane Usher said Thursday. "I would certainly hope that every decision-maker in this field would at least make an effort to reconcile the evolving law."

Usher said she was preparing to recommend a set of medical marijuana regulations to the City Council next month "but with the shoes dropping with this frequency, I think we are all in truth in need of California Supreme Court authority."

The state high court has agreed to review a handful of lower court rulings on medical marijuana, but a ruling may be at least a year away.

maura.dolan@latimes.com

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