Seeking local control

Pub date June 26, 2012
WriterBrian Rinker

As a potentially troublesome court decision threatens the existence of cannabis dispensaries in cities throughout California, San Francisco City Attorney Dennis Herrera submitted an amicus brief last week urging the California Supreme Court to reverse the decision.

In October, the state Court of Appeal ruled in the case of Pack v. City of Long Beach that city ordinances regulating medical cannabis dispensaries are preempted by federal law. Local jurisdictions across the state have adopted discretionary rules for permitting cannabis dispensaries that vary by jurisdiction. The court decision throws out local ordinances, making it illegal for cities and counties to develop regulations.

“The Court of Appeal’s decision strips cities of an essential tool for protecting public health and welfare,” reads Herrera’s amicus brief, which is joined by Santa Cruz Counsel Dana McRae. An amicus brief is commonly filed in an appeal concerning broad public interest by parties not directly involved the court proceedings.

The ruling could have drastic consequences for cannabis dispensaries and the clients they serve. Most cities in the state, including San Francisco, rely on local ordinances to regulate the medical marijuana industry. Herrera says cities will be forced to choose between banning cannabis dispensaries altogether or allowing their operation without local controls, such as San Francisco’s extensive regulations on where and how dispensaries can operate.

In the absence of local regulations, he argues that ” dispensaries and cultivation sites have the potential to generate serious impacts on surrounding communities, including electrical fires, criminal activity, hazards to children’s safety, pollution, harm to wildlife, traffic, noise and odors.”

The appellate court ruled local ordinances go beyond Prop. 215, the California voter-approved decriminalization of medical marijuana, and cross into the realm of actually legalizing it, conflicts with the federal Controlled Substance Act.

In the wake of the court’s decision, the impact was felt immediately. Across the state, cities suspended all new permit activity.

Since the decision was sent to the state Supreme Court in January, where it is currently under review, San Francisco resumed its permitting process. Not all cities resumed. Herrera noted that as many as 12 jurisdictions continue to suspend or severely limit new cannabis dispensary permits, including Santa Cruz.

Rory Bartle, a lawyer at Pier 5 law offices and medical marijuana advocate, says that if the decision isn’t overturned, the entire industry could be upended. However, Bartle says the ruling isn’t widely supported, many counties have filed amicus briefs, and in his opinion the ruling will be overturned.

It is hard to imagine Ryan Pack and Anthony Gale, plaintiffs in the Pack v. City of Long Beach case and members of a cannabis collective that was shut down because of local ordinances, realized the implication of challenging such regulations. Long Beach required a $14,000 non-refundable application fee and annual $10,000 fee.

“Long Beach has some crazy regulations designed to pull as much money as they can out of the medical marijuana industry,” says Bartle. “It’s stupid and unfair.”

In San Francisco, the fees for an application permit are $8,656 and another $4,019 for a license and re-inspection.