California’s experiment with medical marijuana has sparked a hazy version of the old Not-in-My-Backyard syndrome.
From
Hollister to Antioch, from Scotts Valley to Petaluma, from Seaside to
Moraga, city after city has banned medical marijuana dispensaries,
sending a message that even the sickest of patients must go elsewhere
for that state-permitted dose of prescribed medical weed.
But on
Tuesday, this fear-and-loathing approach to outlawing medical pot
providers will face an unprecedented test in the California Supreme
Court. The seven justices are to hear arguments on whether local
governments can ban the dispensaries in view of the state’s 1996
voter-approved law legalizing pot for medical use.
The case
involves the Inland Empire Patients Health and Wellness Center, which
more than two years ago sued to block Riverside’s dispensary ban,
arguing that cities and counties cannot bar activities legal in
California. A state appeals court sided with Riverside, and now the
Supreme Court, faced with similar legal tangles across the state, has
jumped into the fray.
The stakes are high in California’s ongoing
struggle pitting medical marijuana advocates against cities worried
about problems associated with some of the dispensaries, such as lax
control over the distribution of a drug that remains illegal under
federal law.
"The Riverside case is a fascinating example of our ‘laboratories of democracy’ in action," said Julie Nice, a law professor at the University of
San Francisco, where the Supreme Court will hear the arguments. "It
illustrates the difficulties created when each level of government …
stakes out a different regulatory position on a controversial subject."
The
Bay Area, like the rest of California, is divided on the issue. San
Francisco, San Jose, Oakland and Richmond have allowed certain numbers
of dispensaries, even taxing their revenues, while large swaths of the
region are dispensary-free zones.
Overall, there are at least 180
local government bans on medical marijuana dispensaries in California,
about three dozen of them in the Bay Area, according to the marijuana
advocacy group Americans for Safe Access. And that does not include
moratoriums and regulations such as zoning limits, which medical
marijuana supporters agree can be enforced.
Antioch and Pittsburg
just recently approved bans, and Palo Alto voters in November rejected a
ballot measure that would have allowed up to three dispensaries in the
city. As a result, Peninsula residents for the most part have to travel
to San Jose or San Francisco for medical cannabis.
Riverside,
backed by groups such as the League of California Cities, argues that
local governments have strong rights to regulate land uses in their
boundaries, particularly an unusual land use such as a medical pot
dispensary.
"Cities and counties may decide that a particular land
use activity or business is not appropriate for a particular community,
even though that activity is not illegal under state law," said Stephen
McEwen, a lawyer for the cities.
Riverside banned dispensaries
under its nuisance laws. Other cities have taken different approaches;
Hercules five years ago approved a de facto ban with an ordinance
forbidding any land use barred by either state or federal law.
Yet
Hercules has not enforced its ban against the Hercules Health Center,
which has operated in a business park in the East Bay city for several
years. Patients such as Terri Holloway, a local resident, say the center
provides a safe environment close to home to get medical weed, which
she uses after suffering multiple heart attacks and a stroke.
Medical
marijuana advocates say the bans undermine the intent of the state law,
which they argue was meant to provide uniform access to medical
cannabis across the state for certain patients, such as those fighting
cancer or AIDS.
Instead, the bans result in a patchwork that
critics say forces seriously ill people to jump in a car to get to
dispensaries, or seek the drug on the black market. "The ones who need
it the most are the ones who are affected the most," said Douglas
Chiopek, who heads San Jose’s Medmar Healing Center.
David Nick,
who is representing the Riverside dispensary, flatly predicts he’ll win
in the Supreme Court because cities "cannot ban what a state law makes
lawful."
But legal experts say the Supreme Court may be reluctant
to strip cities of the right to enact the bans, likening the situation
to states that permit counties to be "wet" or "dry" in allowing alcohol
sales.
"It is really unusual for a locality to try to outright ban
something that is legal under state law," said Alex Kreit, a Thomas
Jefferson School of Law professor who advised San Diego on its medical
pot regulations. "But I still think it’s going to be an uphill battle
for the medical marijuana argument in this case."
