March 7th, 2012
Posted by Kris HermesLandmark decision denies localities the right to ban dispensaries outright
Last week the California Court of Appeal issued another landmark decision on medical marijuana, which is sure to have a far-reaching ripple effect throughout the state. The Fourth Appellate District ruled in City of Lake Forest v. Evergreen Holistic Collective that localities may not pass outright bans on medical marijuana dispensaries, facilities which a majority of Californian patients rely on for their medication
. In its 48-page published decision, the Court of Appeal disagreed with the lower court’s ruling that “local governments may impose a per se ban on medical marijuana dispensaries without contradicting state law.”This is the first time an appellate court in California has rejected the argument that local governments can use their land use authority to prohibit medical marijuana dispensaries from operating outright
. The court reasoned that SB420, also known as the Medical Marijuana Program Act (MMPA), allows for medical marijuana dispensaries as a matter of statewide concern, so localities cannot simply ban them. The court’s decision brings into question nearly 200 such bans across the state. Unless or until it’s appealed and taken up on review by the California Supreme Court, the Lake Forest case throws a significant wrench into the efforts of medical marijuana opponents and favors the rights of patients to safely and legally obtain their medication.
That said, the Lake Forest decision was a mixed bag for the medical marijuana community. Even while agreeing with another recent landmark decision in People v. Colvin, that “a patient or primary caregiver [need not] personally  engage in the physical cultivation of marijuana” in order to enjoy the protections of California law, the Lake Forest court held that dispensaries must cultivate all of the marijuana they sell on-site.
[W]e conclude off-site dispensaries are not authorized by California medical marijuana law because nothing in the law authorizes the transportation and possession of marijuana to stock an off-site location.
Unfortunately, in this regard, the Lake Forest court got it wrong. The MMPA explicitly protects patients from arrest and prosecution for transportation of marijuana when engaged in collective medical marijuana activity. This part of the court’s decision is not only bad public policy, but has no basis in the law.http://safeaccessnow.org/blog/?p=2400