California’s highest court could clear legal haze on marijuana shops

California's Supreme Court is taking up a case that could affect how local governments regulate marijuana dispensaries such as The Green Doctors in Venice Beach.
California's Supreme Court is taking up a case that could affect how local governments regulate marijuana dispensaries such as The Green Doctors in Venice Beach.
Rebecca Hill/KPCC

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The California Supreme Court hears arguments Tuesday morning on whether cities and counties can ban medical marijuana dispensaries — even as state law allows them.  The answer to that question is critical to both local governments and medical pot advocates who struggle to pick their way through a legal haze.  

The case (City of Riverside v. Inland Empire Patients Health and Wellness),  involves a dispensary that opened its doors in 2009 to sell medicinal marijuana in Riverside. Despite a city ban on pot dispensaries, the collective is still open. There’s even a video on its website in which the founder, Lanny Swerdlow — donned in green scrubs — takes viewers on a tour of the co-op’s “farmers market.”

“Imagine rows of medicinal cannabis cultivators,” he says, “displaying the various strains of cannabis they cultivate, with patients walking up and down the aisles, deciding which vendor has the right marijuana at the right price.”

RELATED: LIVE VIDEO: Calif. Supreme Court hearing on marijuana dispensaries

Swerdlow sued the City of Riverside for banning his co-op.  He lost that round in 2011, but was able to keep the doors open when the California Supreme Court agreed to hear his appeal. 

Swerdlow says don’t look for a ruling on the merits of medical marijuana. His dispute is about zoning laws and whether a city can use them to close dispensaries that are legal under the state’s Medical Marijuana Program Act  and the Compassionate Use Act.

“The state says patients can form collectives and cooperatives to obtain medicinal marijuana,” Swerdlow noted.  “The city says, ‘Well, we’re not going to allow this even though the state says you can do it.’” 

Cities and counties maintain they have the right to pass local ordinances — even if those rules conflict with the state’s efforts to authorize and regulate medical marijuana.

Attorney Stephen McEwen, a partner at the Orange County offices of Burke, Williams and Sorensenco, wrote a friend-of-the-court brief for the League of California Cities.

“Cities and counties have been battling for years with the dispensary advocates” McEwen said by phone from his Orange County office,  “on whether or not you can completely ban storefront dispensaries within a city or county’s boundaries.”

McEwen said the California Supreme Court justices could take it a step further and rule on whether a state law that violates federal law is even legal: “We’re not aware of any other situation anywhere else in the country where a state has compelled its cities and counties to require or allow a land use that’s illegal under federal law.”  

According to the medical marijuana advocacy group Americans for Safe Access, about 50 municipalities — mostly in Northern California — regulate pot dispensaries in some way, allowing them to operate, but far from schools, churches and parks.  Medical marijuana advocate Swerdlow believes more cities and counties should try that approach.

“Collectives are the only legal method for patients to obtain medicinal marijuana other than growing their own," Swerdlow said. "Most patients can’t grow their own. If we lose this case, and cities can ban collectives, that means that patients are back to dealing with criminals rather than licensed and regulated collectives.”

But many city government officials and police say the dispensaries attract crime. Two hundred cities and counties in California have banned them; 85 have issued temporary moratoriums.

In a sign of just how divisive the issue has been, the Los Angeles City Council banned pot dispensaries last year, only to rescind the ban a couple of months later.  Now they’re asking voters to weigh in on several medical marijuana initiatives in May.

But any ballot box decision in Los Angeles could be moot. The California Supreme Court is expected to rule on the legality of pot dispensaries this spring.