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California justices let cities just say no to medical pot shops

May 06, 2013|By Jon Healey
  • In this May 5, 2010, photo, "budista" Angela Nagel assists a client at the Starbudz medical marijuana dispensary in North Hollywood. California cities and counties can ban the shops, the state's highest court ruled Monday.
In this May 5, 2010, photo, "budista" Angela Nagel assists a… (Reed Saxon / Associated…)

The California Supreme Court's unanimous ruling Monday that cities could ban medical marijuana dispensaries highlights how far some cities (such as, oh, Los Angeles) have drifted from Proposition 215, the 1996 ballot initiative that decriminalized the possession and cultivation of cannabis for medicinal use -- as well as the gulf between what Proposition 215 did and what Californians think it did.

The court upheld cities' power to outlaw dispensaries within their borders, observing that the proposition makes no mention of such entities. Instead, it merely declares that people and their primary caregivers can grow or possess marijuana when a physician recommends that they use it to treat the symptoms of certain diseases.

A state law passed in 2003 does discuss dispensaries, but it exempts only patients and their primary caregivers from prosecution for engaging in collective cultivation and distribution. Notably, the court wrote, the law doesn't guarantee that dispensaries will be available to the patients who'd like to use them.

"Localities in California are left free to accommodate such conduct, if they choose, free of state interference," the court ruled. By the same token, however, they're also free to ban them "by declaring such conduct on local land to be a nuisance, and by providing means for its abatement."

In short, Californians who need medical marijuana may be free to grow their own without local or state authorities intervening. But they may not be able to count on dispensaries to step up to meet their needs.

The court also suggested that cities' power over dispensaries isn't limited to an all-or-nothing choice of whether to ban them. "Nothing in [Proposition 215] or [the 2003 law] expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land," the court ruled. That language appears to clear the way for cities to treat dispensaries as nuisances in specified neighborhoods, or to limit their number in areas where they aren't banned.

The justices' guidance on these points is long overdue. Cities and dispensary operators have been battling in the courts for several years over what, if anything, cities could do to limit dispensaries, with lower courts issuing a confusing series of rulings.

In Los Angeles, the legal confusion contributed to city officials' struggle to agree on a coherent approach. As The Times' editorial board wrote last year, "The Los Angeles City Council first welcomed medical marijuana dispensaries, then tried to regulate them, then tried to ban them. The ban has now been suspended because opponents collected enough signatures to force a ballot referendum to overturn it."

City residents will vote this month on three dueling initiatives to limit the number of dispensaries or just restrict their location. Voters who'd like to see a total ban can hope for all three to fail, but it's a bit late to be heading down that road. With hundreds of dispensaries in operation, it would take a prodigious enforcement effort to shutter all those outlets, particularly if they move their operations underground.

Some proponents of medical marijuana have argued that the spirit of Proposition 215 would be violated if Californians who need medical marijuana can't obtain it. Under this view, patients who don't have ready access to dispensaries won't go without the drug -- they'll just buy it on the black market, supporting the illegal drug trade.

They may be right, but according to the state's highest court, at least, that's not what voters agreed to in 1996. The changes made by the proposition and the 2003 law were "incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed," the court declared.

Funny, but if you ask most Californians about Proposition 215 and follow-up statutes, they'd probably say the state legalized pot for medicinal use. Instead, in the eyes of the Supreme Court, the 2004 law merely stopped the state from enforcing seven specific statutes against patients and their primary caregivers who band together to grow their own. That leaves plenty of room for cities to push back against the dispensaries that have multiplied in some areas like, well, weeds.

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Follow Jon Healey on Twitter @jcahealey

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