If today's oral arguments were any sign, it's not looking like the California Supreme Court will take away cities' right to ban medical marijuana dispensaries.
As oral arguments were heard in the potentially landmark City of Riverside v. Inland Empire Patient's Health and Wellness Center case today, the court noted that the legislature never expressly told municipalities they couldn't outlaw pot shops.
Justice Ming W. Chin said:
The Legislature knows how to say 'Thou Shall Not Ban Dispensaries,' They didn't say that.
Cue ominous clouds. The decision is not due for 90 days, though nothing says the court can't weigh in earlier than that.
Joan Smyth is a former city prosecutor and L.A.-based litigation attorney at Kaufman Dolowich Voluck & Gonzo, seems to agree that the court is leaning toward letting cities outlaw weed retailers.
She told us:
From the questioning by the Justices this morning, it appears that the Supreme Court will have a difficult time overturning the traditional, pre-existing land use authority of the cities. The Chief Justice stated that the core issues of the case pertain to land use regulation, zoning, and authority for land use purposes, and she questioned whether the statute should be read such that the traditional police powers should be constrained by the Compassionate Use Act and the Medical Marijuana Program Act …
The court seemed to distinguish between cultivating pot for the medically ill and selling it. Joyce L. Kennard's questioning, Smyth said, …
… seemed to imply that cities would still be governed by the CUA's decriminalization of medical marijuana that was cultivated or produced in a cooperative, rather than distributed through a store-front dispensary.
This goes back to the old debate about whether the sale of marijuana was intended by the state's medical marijuana laws. If not, maybe cities can ban dispensaries.
Justice Kennard raised the point that to uphold a city's ban on dispensaries does not necessarily impact the cultivation of medical marijuana.
Sorry for the bad news.