City Can't Shut Pot Shop, Court Rules

A panel of appellate court justices in Santa Ana today overturned a lower court judge's injunction shutting down a medical marijuana collective in Lake Forest.

Fourth Appellate District Justices William Rylaarsdam and Richard D. Fybel, led by Richard M. Aronson, ruled that city officials cannot use their nuisance abatement ordinance as a wholesale ban on medical marijuana dispensaries and collectives.

The justices struck down a preliminary injunction from Orange County Superior Court Judge David Chaffee in May 2010 that would have shut down the Evergreen Holistic Collective.

A stay on the injunction was granted while the appellate court reviewed Chaffee's ruling.

Evergreen Holistic Collective sued in October 2009.

City officials may use their nuisance ordinance to regulate the dispensaries and collectives, but can't just declare them a nuisance, thereby banning them, according to the ruling.

"The city did not obtain its nuisance injunction based on the manner in which Evergreen operated, but instead based on a total ban against dispensaries rendering them a per se nuisance, contrary to state law determining dispensary activities are not necessarily a nuisance," Aronson wrote in the ruling.

The ruling also touched on the nature of the topic.

"We recognize our conclusions today may disappoint the parties in this case and the opposing sides in California's ongoing debate concerning medical marijuana dispensaries because they may wish to operate independently of cultivation sites, and some cities and other local governments because they want to ban dispensaries altogether," Aronson wrote in the ruling. "We emphasize that these are policy outcomes outside our power to reach or grant because we are constrained by the voters' and the Legislature's enactments. Although courts will continue to resolve disputes over the meaning of the [Compassionate Use Act] and [the Medical Marijuana Program Act], policy choices about the role of medical marijuana in this state, including any changes or adjustments that may be made, rest ultimately with the people and their representatives."

Voters in 1996 approved the "Compassionate Use Act," which legalized the use of medical marijuana and in 2004 state lawmakers approved legislation clarifying Proposition 215.

In December 2010, the same appellate court overturned another of Chaffee's rulings allowing cities to ban medical marijuana dispensaries.

In that ruling the justices did not clarify whether nuisance abatement ordinances could prohibit the dispensing of the drug through storefronts or elsewhere.

Today's ruling allows for the dispensing of medical marijuana, but the justices also decided the nonprofit collectives can only dispense the drug from where it is cultivated, meaning it cannot be brought in from elsewhere and given out through storefront operations.

"My client is satisfied there is a decision that supports the voters' intent,'' said Evergreen attorney David Welch. "The part that matters the most (in the ruling) is they do have the ability to operate in the community they live in, and they're not required to drive to L.A. or San Diego. They can grow marijuana in their own backyard."

Evergreen Holistic Collective was effectively shut down by federal authorities about four months ago as part of the Justice Department's crackdown on medical marijuana dispensaries, Welch said.

The collective has challenged that with a lawsuit in federal court, and a hearing on that is set for March 26 before U.S. District Judge Andrew Guilford, Welch said.

Jeffrey Dunn, an attorney who represented Lake Forest in the appeal, said the ruling was expected.

"Nevertheless, we're surprised by the decision because the federal government has moved to close down all these dispensaries and nothing will change that the California Supreme Court has already decided to consider this issue,'' Dunn said.

The state Supreme Court, which is considering other rulings that favor cities that have used nuisance ordinances to ban the dispensaries, likely will have the final word, Dunn said.

"But this is the first decision to hold that the dispensary must be at the cultivation site,'' Dunn said. "I think that part of the decision, in practical terms, shuts down these storefront dispensaries everywhere. Not one of these locations could grow enough pot to sustain the commercial operations they have."

--City News Service