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Court upholds injunction against medical marijuana dispensary in Claremont

September 24, 2009
Creative Commons

Creative Commons

On Tuesday, the city Council passed an ordinance issuing a 45-day moratorium on medical marijuana dispensaries in the city. To read my story about it, click here.

The moratorium is meant to give city officials time to analyze the legal and political landscape swirling around the pot shops.

Today, the California Court of Appeals upheld a lower court’s permanent injunction of the opening of a medical marijuana dispensary in the city of Claremont.This case and many others in the state’s court system could have bearing on what the city ends up doing.

From a press release from Best Best and Kriger Attorneys at Law, who represented Claremont in the suit :

California Court of Appeal Publishes Medical Marijuana Opinion

Opinion Upholds Claremont’s Ban of Dispensaries

Los Angeles _ A California Court of Appeal has published an opinion upholding a lower court’s permanent injunction preventing a medical marijuana dispensary from operating in the city of Claremont.

The publication of the opinion, City of Claremont v. Kruse, means that it is a precedent-setting case and for the first time provides clarity and guidance to California counties and cities facing difficult decisions regarding the regulation of marijuana dispensaries.

In this case, Claremont had issued a moratorium preventing the issuance of a business license or other approvals for medical marijuana dispensaries as uses not permitted under the city’s zoning ordinance.

Under Proposition 215, known as the California Compassionate Use Act, certain individuals may use marijuana for specified medicinal purposes under certain conditions without violating state criminal laws. However, federal law still forbids marijuana use.

“With this published opinion, cities now have legal guidance on what they can do to regulate marijuana dispensaries,” said Jeffrey V. Dunn, a Best Best & Krieger attorney who represented Claremont along with his colleague, BB&K attorney Marc S. Ehrlich. Their partner, Sonia Carvalho, serves as Claremont’s city attorney.

Dunn said the opinion issued by the 2nd District Court of Appeal earlier this week means the Compassionate Use Act does not preempt a city’s traditional zoning or business license decisions. The opinion also thoroughly analyzes state preemption law and determines that cities and counties can retain their broad police power to regulate and, if necessary, restrict such land uses in their jurisdiction.

The issue of medical marijuana dispensaries has garnered much attention in California recently.

Scott Smith, also of Best Best & Krieger, serves as city attorney for Lake Forest, which filed several lawsuits this month against medical marijuana dispensaries in an effort to remove them from the city. Lake Forest had adopted a zoning ordinance prohibiting business that do not adhere to state and federal law and, like Claremont, has taken the position that dispensaries are a use that is completely dissimilar to any use otherwise enumerated as permitted in its zoning ordinance.

Smith said the Claremont opinion will substantiate Lake Forest’s efforts.

“Lake Forest is concerned with the illegal activity associated with some of these dispensaries,” Smith said. “Cities have always had the police power to choose and permit land uses that enhance their quality of life. Lake Forest maintains a special quality of life that is inconsistent with these uses.”

In Santa Ana yesterday, the 4th District Court of Appeal heard an appeal in a challenge to an Anaheim ordinance banning marijuana dispensaries.

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