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CA Supreme Court Dismisses Case Against City Regulation of Medical Marijuana

Posted on September 13, 2012 by News Admin

 The California Supreme Court has dismissed the case of Pack v. Long Beach, in which an appellate court had ruled that the restrictive permitting scheme for medical marijuana dispensaries in the city of Long Beach was illegal. This case was often cited by medical marijuana opponents to support the claim that any permitting or regulation of medical marijuana -- including those found in the local medical marijuana initiative proposals that have qualified for the November ballot around San Diego -- may not withstand legal challenges.

These initiatives include Proposition H in Del Mar, Proposition W in Solana Beach, and Proposition T in Lemon Grove.

Fortunately, with this dismissal, the Pack decision was de-published. This means that attorneys can no longer cite Pack as valid law. Similarly, a municipality cannot rely upon the Pack decision to ban lawful medical marijuana dispensaries, nor to conclude that local regulation of lawful medicinal cannabis dispensaries violates federal law.

The California Supreme Court also recently, and unanimously, let the 2012 decision, Pack v. Colvin, stand, which held that a qualified patient who was managing two storefront dispensaries was entitled to a defense in court to criminal charges of transportation of marijuana and possession of concentrated cannabis.

The court discussed at length that Colvin had operated a legitimate and lawful storefront dispensary, complying with California's laws and the Attorney General's 2008 guidelines. On May 23, the California Supreme Court unanimously decided to let Colvin stand as good law, essentially endorsing that a qualified patient can operate a lawful storefront dispensary.

In July, the Second District Court of Appeal in California also issued a landmark decision in County of Los Angeles v. Alternative Medicinal Cannabis Collective (AMCC), which affirmed the legality of medical marijuana dispensaries under state law, and rejected bans imposed by municipalities.

On the issue of whether dispensaries are legal under state law, the AMCC court ruled that "[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 of 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."

The AMCC decision further held that "[Los Angeles] County's total, per se nuisance ban against medical marijuana dispensaries directly contradicts the Legislature's intent," and called that contradiction "direct, patent, obvious, and palpable."

"Pack was an outlier," said Jessica McElfresh, official legal representative of the Patient Care Association. "There is a consistent and growing consensus through numerous appellate court decisions as to the legality of storefront medical marijuana dispensaries."

"With Pack no longer binding law, hopefully municipalities throughout San Diego County will cease banning medical cannabis collectives, and instead, regulate and permit them to allow qualified patients and primary caregivers to have legal, safe and affordable access to the medicine that alleviates their pain and suffering," said James Schmachtenberger, president of the Patient Care Association.

Propositions W (in Solana Beach), H (in Del Mar), and T (in Lemon Grove) would provide such regulation, according to the Patient Care Association, and the dismissal of Pack v. Long Beach confirms, once again, the legality of such regulations under California state law.


For more information, please visit the website of Citizens for Patient Rights.

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