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Attorney: Murrieta Not Affected by Marijuana Dispensary Ruling

A state appellate court has rejected bans on medical marijuana dispensaries, but a Murrieta city attorney says the city's moratorium still stands.

A recent appellate court ruling that cities can not place bans on medical marijuana dispensaries does not affect Murrieta's current moratorium, a city attorney said.

A three-justice panel on the Second District Court of Appeal in California issued a July 2 decision in County of Los Angeles v. Alternative Medicinal Cannabis Collective that rejected bans on dispensaries imposed by a local municipality.

In the decision, the court ruled that L.A. County's "complete ban" on medical marijuana is "preempted" by state law and therefore void. The decision reverses a preliminary injunction granted to the county by the Los Angeles Superior Court in May 2011.

Under California law, medical marijuana is legal. (Read more about the 1996 Compassionate Use Act or the Medical Marijuana Program Act on the state’s website.)

The July 2 decision puts the bans in question. According to the ruling, "[T]he repeated use of the term 'dispensary' throughout [Health and Safety Code section 11362.768] and the reference in subdivision (e) to a 'storefront or mobile retail outlet' make it abundantly clear that the medical marijuana collectives authorized by section 11362.775 are permitted by state law to perform a dispensary function. [Los Angeles] County's total, per se nuisance ban against medical marijuana dispensaries directly contradicts the Legislature's intent."

However, jurisdictions in southwest Riverside County, including Lake Elsinore, Wildomar, Temecula and Riverside County have banned marijuana dispensaries and storefronts.

Murrieta had a ban in place until 2011,

In recent months, Murrieta, the county, Drug Enforcement Administration and Department of Justice have teamed to

Murrieta City Attorney Robert Mahlowitz is representing the city in two medical marijuana dispensary lawsuits, Greenhouse Cannabis Club and Cooperative Medical Group, and said he read the Alternative Medicinal Cannabis case. 

"It strongly supports the city’s current laws," Mahlowitz wrote, in an email to Patch.

"First, the case recognizes that the issue it decided—may a local government ban medical marijuana cooperatives and dispensaries—is currently before the California Supreme Court," Mahlowitz wrote.

"The Alternative Medicinal Cannabis decision contains a lengthy discussion explaining that temporary medical marijuana dispensary bans, such as Murrieta’s, are entirely legal and appropriate. The Alternative Medicinal Cannabis decision means Murrieta’s current law temporarily barring medical marijuana dispensaries is entirely proper and enforceable," Mahlowitz wrote.

This latest decision is the opposite of one put forth by the state's Fourth District Court of Appeal, which ruled in November that nothing in the 1996 Compassionate Use Act or the Medical Marijuana Program Act preempts cities from banning dispensaries.

Ultimately, the California Supreme Court will have the final say. Two state appellate court rulings impacting dispensaries have been granted review by the high court, including Pack v. City of Long Beach, which addresses how localities can regulate distribution, as well as the City of Riverside v. Inland Empire Patient's Health and Wellness decision, which deals with whether municipalities can permanently ban distribution.

Mahlowitz believes the Riverside and Lake Forest cases both address the same question presented by the Alternative Medicinal Cannabis case.

In the Riverside case, "the appellate court said a city may ban dispensary operations," Mahlowitz wrote.

About the Lake Forest case, Mahlowitz wrote: "the appellate court said a City is required to allow a combined sales and marijuana grow operation,"

"That means Alternative Medicinal Cannabis will be taken for review by the Supreme Court the same way the Supreme Court took the Lake Forest case for review. So, within six to eight weeks the Supreme Court should accept review and Alternative Medicinal Cannabis case will no longer be controlling law," Mahlowitz wrote.

After hearing this week’s decision, Joe Elford, chief counsel with Americans for Safe Access, said, "The court of appeal could not have been clearer in expressing that medical marijuana dispensaries are legal under state law, and that municipalities have no right to ban them. This landmark decision should have a considerable impact on how the California Supreme Court rules in the various dispensary cases it's currently reviewing."

Beth Burns, co-owner of Cooperative Medical Group, which opened in Murrieta in July 2011, was also aware of the ruling. Burns said she was "waiting patiently for the Supreme Court." She has said

The attorney for Greenhouse Cannabis Club, , could not immediately be reached for comment Friday; nor could the owner.

While the city's legal battle continues with both dispensaries—or co-ops as their management have described them—neither are currently operating.

"The new case strengthens rather than weakens Murrieta’s current law," Mahlowritz wrote. "Currently, a temporary moratorium is in place in Murrieta that prevents dispensary operations. It will allow the city time to review its laws in light of expected rulings from the Supreme Court addressing the conflicting appellate court cases. When the moratorium expires, the city will adopt new permanent regulations. Right now, though, no permanent regulation is in effect."

—Toni McAllister contributed to this report.

Don Lambert September 16, 2012 at 11:16 AM
FORMAL PETITION TO DEA/FDA BY TWO GOVERNORS to RECLASSIFY CANNIBIS FROM a Schedule I CONTROLED SUBSTANCE TO Schedule II. http://www.governor.wa.gov/priorities/healthcare/petition/combined_document.pdf From Gov Lincoln Chafee of Rhode Island and Gov Christine O. Gregoire of Washington TO Michele Leonhart, Administrator, Drug Enforcement Administration This is the link to the actual document by the two governors to the head of the DEA to reschedule cannabis (marijuana) from CSA drug schedule one to drug schedule two There is a lot of useful information in this document. Letter and Exhibit A pages not numbered (7 pages) Numbering starts with page 1 of exhibit B Statement of Grounds, Table of Contents Text pages 3-43, References pages 44-99 (For example if you want numbered page 22, add 7. thus it is page 30 on your PDF page indicator) Total pages 106 Petitions to reschedule are done according to a federal code. This petition contains considerable information in a prescribed manner that refutes many of the myths that anti-cannabis holdouts recite, and provides additional new scientific evidence to refute the prior claims used by the DEA/FDA to not reschedule the 2002 request and a 2006 study. "Pursuant to Section 1308.43 of Title 21 of the Code of Federal Regulations (CFR) we hereby petition..." Attached hereto and constituting a part of this petition are the following as required by the CSA and the CFR:" (the next 105 pages)
Don Lambert September 16, 2012 at 11:29 AM
The study from another country of persons whose IQ was taken at age 13 and taken again at about age 38 that found those who smoked Marijuana regulaly lost 8 IQ pointws over the years. This study indicated there might be something to this claim. There could be confounding factors, but more studies could be done on this subject. However what Ron did not quote from the same study was the researchers flat out statement THERE WAS NO LOSS OF IQ FOR THOSE PERSONS WHO STARTED SMOKING MARIJUANA AT AGE 18 AND OLDER. Repeat that: NO LOSS OF IQ for those that did not smoke marijuana until age 18 or older, compared to persons in the study that never smoked it.
Don Lambert September 16, 2012 at 12:26 PM
MURRIETA TO EXTEND DISPENSARY BAN FOR ONE YEAR ON Sept. 18 At the regular city council meeting on September 18th, 2012, an item to extend their temporary moratorium on Medical Marijuana Dispensaries for one year is on the agenda. There is zero chance they will not extend it. However there is opportunity to express your support or opposition in writing to the city clerk BEFORE the meeting. Or you may appear in person and talk for up to 3 minutes during a public comment period on THIS AGENDA item. “If you challenge any of the projects in court you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the city clerk at, or prior to the meeting.” NOTE: This agenda part of the meeting begins at 7:00 PM There is an earlier part of the meeting that begins at 6:00 PM that includes a public awards, etc, and a public comment period for “ITEMS NOT ON THE AGENDA” See the city web site for more information and a copy of the ordinance 465-11 Click on this link to read more http://blog.pe.com/murrieta/2012/09/11/medical-marijuana-dispensary-ban-to-be-extended/ Click on this link to see the legal notice published in the Californian. It comes up in pdf and you may have to click “open” in menu box) http://www.murrieta.org/civica/filebank/blobdload.asp?BlobID=5044
Don Lambert September 17, 2012 at 10:33 AM
MURRIETA ORDINANCE DENIES RIGHTS GIVEN BY STATE LAW. I think there are many problems with this ordinance to be voted on September 18. It is to extend the existing 10 and a half month moritorium for another year. One problem that you do not see in reading it is it includes by reference the prior Murrieta ordinances 465-11 passed Oct 18, 2011. That one defines” “Medical Marijuana Dispensary” means any facility, structure, vehicle utilized in or location where medical marijuana is cultivated made available to and/or distributed by A PERSON TO TWO OR MORE OF THE FOLLOWING a primary caregiver, a qualified patient, or a person with an [state recognized MMJ card issued by the county]. It is my opinion this is an extreme restriction that denies the rights to associate collectively or cooperatively given by the legislature in the 2004 Medical Marijuana Program Act. The Murrieta ordinance does go on to exclude this restriction from hospitals, state registered nursing homes, etc to allow medical marijuana as covered explicitly by the 1996 law.
Don Lambert September 17, 2012 at 10:36 AM
FORMAL PETITION TO DEA BY TWO GOVERNORS to RECLASSIFY CANNIBIS FROM a Schedule I CONTROLED SUBSTANCE TO Schedule II. http://www.governor.wa.gov/priorities/healthcare/petition/combined_document.pdf From Gov Lincoln Chafee of Rhode Island and Gov Christine O. Gregoire of Washington TO Michele Leonhart, Administrator, Drug Enforcement Administration This is the link to the actual document by the two governors to the head of the DEA to reschedule cannabis (marijuana) from CSA drug schedule one to drug schedule two There is a lot of useful information in this document. Letter and Exhibit A pages not numbered (7 pages) Numbering starts with page 1 of exhibit B Statement of Grounds, Table of Contents Text pages 3-43, References pages 44-99 (For example if you want numbered page 22, add 7. thus it is page 30 on your PDF page indicator) Total pages 106 Petitions to reschedule are done according to a federal code. This petition contains considerable information in a prescribed manner that refutes many of the myths that anti-cannabis holdouts recite, and provides additional new scientific evidence to refute the prior claims used by the DEA/FDA to not reschedule the 2002 request and a 2006 study. "Pursuant to Section 1308.43 of Title 21 of the Code of Federal Regulations (CFR) we hereby petition..." Attached hereto and constituting a part of this petition are the following as required by the CSA and the CFR:" (the next 105 pages)

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