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Appeals court declines to rule on whether California medical marijuana laws bar cities from outlawing dispensaries

August 18, 2010 |  5:10 pm

A state appeals court declined Wednesday to decide whether California’s medical marijuana laws prevent cities and counties from outlawing dispensaries, sending a closely watched dispute over Anaheim’s 3-year-old ban back to the lower court for more hearings.

Cities and dispensaries had been anxiously anticipating a major decision because the 4th District Court of Appeal in Santa Ana had asked both sides for additional information and took an unusually long time to reach a decision, a year rather than the typical three months.

“Having taken as long as they did to decide the case, I was hoping we’d get a more definitive result,” said Joe Elford, chief counsel for Americans for Safe Access, an advocacy group. “The good news about the case is that the court does reinstate the lawsuit.”

Qualified Patients Assn., a dispensary run by Lance Mowdy, sued Anaheim in 2007 to overturn the city’s ordinance making it a misdemeanor to operate a dispensary in the city.

In its decision, the appeals court did reject Anaheim’s contention that the federal Controlled Substances Act preempted the state’s medical marijuana laws, making dispensaries illegal. Orange County Superior Court Judge David R. Chaffee had agreed with the city on that issue. Several previous court decisions have reached the same conclusion.

“As much as we want to put that argument out of its misery, we just can’t shake it,” Elford said.

In their decision, the three appellate judges said the issue of whether the state’s 1996 medical marijuana initiative and a 2003 state law preempt local bans “is by no means clear-cut or easily resolved on first impressions.” They acknowledge they were “anxious” to decide “this important and interesting question of state preemption,” but concluded that they had “precious few facts.”

Far more cities and counties prohibit dispensaries than allow them. According to Americans for Safe Access, 133 cities have banned dispensaries and 99 have moratoriums, while nine counties have banned them and 15 have moratoriums. Only 38 cities and nine counties allow dispensaries. Many cities also say their zoning ordinances prohibit dispensaries.

Los Angeles and Long Beach, the largest cities in L.A. County, allow dispensaries, but many others have acted to keep dispensaries out, including Glendale and Santa Clarita, the next-largest cities. Los Angeles County last month took the first step toward adopting a ban.

--- John Hoeffel 

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