Effort To Repeal City Ban Despite State High Court Ruling
By Tiffany Rider - Senior Writer
May 21, 2013 – Though the high court of California issued a landmark ruling on May 6 allowing jurisdictions to use zoning and land-use powers to ban medical pot shops, advocates of medicinal marijuana continue to fight for the right to operate dispensaries in Long Beach.
The California Supreme Court decision was made with unanimous concurrence, ruling in favor of the City of Riverside’s use of zoning laws in 2010 to exclude medical marijuana dispensaries from operating within city limits, including the plaintiff Inland Empire Patients Health and Wellness Center. In its decision, the court ruled California’s medical marijuana laws – the Compassionate Use Act (CUA) and its Medical Marijuana Program (MMP) – do not preempt a local ban on dispensaries.
“We have consistently maintained that the CUA and MMP are but incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed,” according to the ruling. “They merely declare that the conduct they describe cannot lead to arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the Health and Safety Code. Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders.”
Long Beach City Attorney Bob Shannon told the Business Journal the ruling is as the city expected and supports the local ban on dispensaries enacted February 14, 2012. The city is still in the process of closing down medical marijuana storefronts operating within city limits, he said, as police and business licensing are “focusing on the more problematic locations and working our way down the line.”
Moreover, the court opinion is more important for what it doesn’t say than what it does, according to Shannon. “It certainly says that cities, if they choose to do so, may ban these operations,” he reiterated. “What it does not say is that the cities can affirmatively permit these operations because it doesn’t touch the federal preemption issue. Now, remember, the federal preemption issue is where Long Beach was overturned in the court of appeal. But the California Supreme Court has not dealt with this issue and they expressly declined to rule on that issue.”
As reported by the Business Journal in February, patients, providers and advocates have filed 11 complaints in court against the city’s ban. Those cases are currently in the Los Angeles Superior Court’s Complex Civil Division, according to Deputy City Attorney Kendra Carney. Hearings were expected to resume March 6 but were continued by the court at least twice now, Carney said. The latest date set for hearings is July 16.
Since the initial 11 cases were filed with the division, Carney said one more case has been brought forward. “It’s similar in nature to cases already filed,” she said. “We’re working on hopefully collaborating with the plaintiff’s attorney to have it moved over to join these other cases in the complex civil division.”
Meanwhile, the petition filed in February with the city clerk department calling for a special election to decide if medical marijuana storefronts should be allowed in Long Beach, and how they would be regulated if allowed, was found insufficient by Long Beach City Clerk Larry Herrera. According to an official Certificate of Insufficiency of Initiative Petition, signed by Herrera on March 7, a signature verification system disqualified 27 percent of the signatures garnered. Only 31,294 signatures were deemed valid; a special election petition needs approximately 35,000 valid signatures – or 15 percent of the registered voter population – to be considered sufficient.
According to Matthew Ceballos, a city clerk assistant, another petition was filed with the department but never progressed. On April 24, a third group “picked up where the second petition left off,” Ceballos said. The ballot title and summary for this petition was prepared by the city attorney’s office and distributed to the proponents on May 7, according to Ceballos. The ballot title is “Regulation of Medical Marijuana Collectives,” and its summary indicates the measure would, if passed, regulate collectives in the city and repeal the current ban.
“The Measure would regulate fixed storefront locations, mobile operations and residential uses,” according to the ballot summary. “The Measure applies to all marijuana facilities in the City, even if established illegally prior to its passage. The Measure would mandate medical marijuana enforcement be the lowest priority of the Police Department and require police officers to receive training regarding implementation of the Measure.”
Though there is nothing in the court’s opinion that expressly permits cities to legally allow dispensaries, the Long Beach City Council could bring the issue back to the public by adding an item to its agenda any given Tuesday.
“If they revisit it,” however, Shannon said, “I would give them the same advice that I did when they enacted the lottery ordinance some years ago, and that is that there is a substantial risk that the federal government will find that they have acted illegally.”