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California: State Appeals Court Says Cities Can Ban Cannabis Dispensaries

Thursday, 17 November 2011

California: State Appeals Court Says Cities Can Ban Cannabis DispensariesRiverside, CA: A three-judge panel of the 4th District Court of Appeals has upheld a citywide ordinance prohibiting the establishment of brick-and-mortar facilities that engage in the distribution of cannabis to state-authorized persons.

The judges opined: "Riverside's zoning code ... states that any (activity) which is prohibited by state and/or federal law is strictly prohibited in Riverside. ... Where, as here, there is no clear indication of preemptive intent from the Legislature, we presume that Riverside's zoning regulations, in an area over which local government traditionally has exercised control, are not preempted by state law. ... [W]e conclude Riverside's prohibition of medical marijuana dispensaries (MMDs) in Riverside through enacting a zoning ordinance banning MMDs is a lawful method of limiting the use of property by regulating and restricting the location and establishment of MMDs in the city."

The opinion (City of Riverside v. Inland Empire Patients' Health and Wellness Center, Inc.) is believed to be the first to unambiguously state that local jurisdictions possess the legal authority to outlaw such establishments through the passage of restrictive zoning regulations.

The Riverside decision follows a separate appellate court opinion in October (Pack et al. v. Long Beach) determining that the city of Long Beach could not legally license or authorize medical cannabis dispensaries because marijuana remains illegal under federal law. In that case, the 2nd District Court of Appeals ruled: "The City's ordinance, however, goes beyond decriminalization into authorization. ... [I]t provides permits to operate medical marijuana collectives. .... A law which 'authorizes [individuals] to engage in conduct that the federal Act forbids ... stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress' and is therefore preempted."

Both decisions are expected to be appealed to the California Supreme Court.

For more information, please contact Keith Stroup, NORML Legal Counsel, at (202) 483-5500.







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