Welcome to the Era of ‘Wet’ and ‘Dry’ Cities

The high court's decision to uphold pot club bans could result in an extended period in which it will be impossible to buy medical cannabis in some cities but not in others — unless the legislature intervenes.

The California Supreme Court upheld on Monday the right of cities and counties to ban medical cannabis dispensaries in a unanimous decision that promises to have major ramifications in the state. The ruling means that cities like Walnut Creek and counties like Riverside can continue to ban medical cannabis dispensaries in their areas — even though medical cannabis remains legal statewide. It also lets cities like Oakland, Berkeley, and San Francisco to continue to allow regulated medical marijuana collectives operating in storefronts — i.e., dispensaries.

But the decision likely will become a huge factor for cities and counties that have not yet decided whether to allow or ban dispensaries. The ruling also could impact the California Legislature, where efforts are afoot to regulate the state’s estimated $1.3 billion medical cannabis industry.

Californians legalized medical marijuana for patients and caregivers in 1996, and the state legalized collectives and cooperatives in 2003. But the legislature left many policy details blank — and the courts have filled them in one ruling at a time. The high court’s latest decision stems from the case of City of Riverside v. Inland Empire Patients Health and Wellness Center. The dispensary opened in Riverside in 2009, and then the city ordered it to close, citing a nuisance ordinance. The club took the city to court. After two legal losses, the club appealed to the state Supreme Court.

Dispensary attorney J. David Nick argued that a city’s land-use powers are not equivalent to the power to ban use. Cities have tried and failed to ban mental-health hospitals, domestic violence shelters, and laundromats from opening within town limits, he wrote in his brief. And medical marijuana dispensaries should be treated no differently because they are protected by state law, he argued.

But the high court ruled against the dispensary, stating that current state law does not specifically prohibit bans. “The state statute does not … mandate that local governments authorize, allow, or accommodate the existence of such facilities,” the justices wrote. “While some counties and cities might consider themselves well suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens.”

But the court’s ruling also means that thousands of Californians who need the herbal remedy will now likely have a more difficult time accessing it as other cities and counties enact bans. There are several hundred thousand medical marijuana patients in the state, and there are about two hundred dispensary bans in place. The ruling figures to factor heavily in Vallejo, which has neither regulated nor banned dispensaries. “Hostile elected officials will feel emboldened to adopt bans,” said Kris Hermes, Oakland-based spokesperson for Americans for Safe Access.

The Riverside verdict could also lead to closures of hundreds of clubs in San Jose. Three out of four San Jose voters approved a local tax on medical marijuana there, but the city council has tried to ban dispensaries or regulate them out of existence anyway. Local operator Dave Hodges said the ruling is “pretty bad.” “San Jose is about to take a really big hit,” he said.

Los Angeles also has no regulations on clubs nor does it ban them outright; voters will decide the fate of three measures to allow clubs in LA and regulate them in an election this month. But prospects appear to be bleak for all three measures, setting up another LA City Council battle between the “ban” camp and those who favor regulation. “The people that are pro-ban on the city council are going to take this as a cue,” said Don Duncan, head of Americans for Safe Access in Los Angeles.

In San Diego, activist and organizer Cynara Velazquez said the ruling would fuel a battle currently raging in the military town, in which the mayor, who favors allowing medical cannabis dispensaries and regulating them, is squaring off against the city attorney, who wants to ban them completely. The San Diego County prosecutor working with the Drug Enforcement Administration has reportedly closed every dispensary in the city and county.

In the legislature, Duncan said activists will use the Riverside ruling to argue for increased support for statewide regulations for the industry. And the high court on Monday strongly indicated that such regulations could pass muster. “Of course, nothing prevents future efforts by the Legislature, or by the People, to adopt a different approach,” Justice Marvin Baxter concluded in the ruling.

But even with two regulation bills pending, passing a new law might have to wait until next year, Duncan said. And it also likely won’t include a mandate that communities allow clubs. As a result, the prospect of an extended period of “wet” and “dry” medical pot cities and counties in California now seems very real.

Still, there was one clear winner in the high court’s decision: delivery dispensary services, which can easily cross city lines and are hard to stamp out. There also were two other silver linings in the court’s decision: It reaffirmed the legality of dispensaries, meaning anti-medical marijuana city attorneys can’t point to federal law in justifying bans; and it re-affirmed local control over such businesses, meaning that local citizens can lobby to overturn existing bans, fight proposed bans, as well as run referendums to stop bans and install regulations.

“There is a huge job ahead for medical marijuana advocates in California cities and counties that are borderline or hostile towards dispensaries to push them in the direction of regulations, as opposed to bans,” Hermes said.


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