Medical Marijuana Dispensaries Face Confusion Over Local Zoning Laws

It has been 13 years since California voters passed Prop. 215, the Compassionate Use Act, which allows users to obtain medical marijuana with a doctor’s authorization in California.

In the 13 years, hundreds of medical marijuana dispensaries have cropped up in communities throughout the state.  In spite of the growing number of dispensaries however, numerous communities have no zoning regulations addressing where, when, and how medical marijuana dispensaries can operate within their boundaries while other cities and towns have banned their operations entirely.

Federal law still outlaws possession, and if you are cultivating and distributing marijuana even for medical purposes or otherwise make sure to have a good defense attorney on speed-dial. During the Bush Administration, this conflict in state and federal law created confusion as federal authorities raided, arrested, and prosecuted medical marijuana dispensary operators in California and other states which had legalized medical marijuana.  Earlier this month, the Obama Administration announced it would end the Bush Administration’s practice of raiding dispensaries and restrict prosecutions of medical marijuana dispensaries to traffickers who falsely masqueraded as medical dispensaries and who “use medical marijuana laws as a shield.”

In directing U.S. Attorneys, Deputy Attorney General Eric Ogden wrote that “prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law … is unlikely to be an efficient use of limited federal resources.”

While the new U.S. Attorney General guidelines have helped, confusion remains for owners and operators of medical marijuana dispensaries which are allowed to operate under state law but which remain illegal under federal law and face an array of differing approaches from local cities, from bans to strict zoning regulations to moratoriums. While more than 40 localities have adopted ordinances regulating medical marijuana dispensaries, at least 120 localities have banned their operation outright.
In 2003, the state Legislature enacted legislation (the aptly numbered “SB 420“) which was intended to clarify confusion created after Prop. 215, establishing a medical marijuana ID card program to issue identification cards to qualifying patients.
In August 2008, the California Attorney General’s office issued guidelines pursuant to SB 420 which were designed to  ensure the safe regulation of medical marijuana and their dispensaries in California.

In spite of these guidelines, it remains unclear whether, and how much, cities can regulate  medical marijuana dispensaries.  Last month, the Fourth District Court of Appeal heard oral arguments in a Qualified Patients Association v. City of Anaheim which may decide whether local governments can ban medical marijuana dispensing collectives from operating entirely.  That case arises out of a citywide ban on medical marijuana dispensaries the City of Anaheim implemented in July 2007.  If the Court of Appeal rules in favor of the city, it may mean any city can ban entirely medical marijuana dispensaries.  If, on the other hand the Court of Appeal overturns Anaheim’s ban, it may open the floodgates, requiring cities to allow dispensaries to operate within their borders.

In another case published in September of this year, the Second District Court of Appeal upheld an injunction disallowing a medical cannabis dispensary in Claremont, California. The court ruled that the city could deny a dispensary a business permit on the grounds that no such businesses were authorized under the city’s land use and development code. It left open the possibility of applying for a code amendment.  That decision applies only to situations where a local ordinance states explicitly “if not listed as a use, it is prohibited.”  It does not necessarily apply to other situations, such as the permanent dispensary bans enacted by Anaheim and Fresno, which are still under litigation.

As advocates of medical marijuana use await the court’s ruling, the Obama Administration’s ruling provides little comfort.  What point is it, after all, in being told medical marijuana users won’t be prosecuted if their cities have nowhere to buy it?