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.