By Jon Cassidy, Published in The Orange County Register
COSTA MESA – – A recent appeals court decision that cities should not invoke federal law as grounds for banning medical marijuana dispensaries has prompted Costa Mesa to revise its ban on the facilities.
The Planning Commission voted 4-1 to recommend a revision of the ban to the City Council.
The new ordinance would state that the city has never sought prosecution of medical marijuana dispensaries and “does not intend to do so in the future.” However, it would leave misdemeanor and infraction penalties in place, even though the Fourth District Court of Appeal frowned on criminalizing dispensaries “solely on the basis” of medical marijuana activities.
The city’s move came in response to the appeals court’s decision Aug. 18 in Qualified Patients Association vs. City of Anaheim.
The court declined to decide the legality of dispensary bans for procedural reasons, and returned the case to trial court with instructions. Its ruling is not binding on cities.
The ruling does provide a view on the court’s thinking on some aspects of the issue, such as federal drug law, criminal penalties, and what sort of regulations might be allowed.
The court rejected the idea of a conflict between state and federal laws on marijuana. Such a conflict would exist if the state required people to possess marijuana, but permission is not the same as a requirement, the court said.
Citing the decision in Felix Kha’s lawsuit against the Garden Grove Police Department, the court ruled that no conflict arises “based on the fact that Congress has chosen to prohibit the possession of medical marijuana, while California has chosen not to.”
It concluded, “the city may not justify its ordinance solely under federal law, nor in doing so invoke federal preemption of state law that may invalidate the city’s ordinance.”
Although state law prohibits criminal prosecution of medical marijuana groups under drug laws, the court said that it remains to be determined whether local governments may use nuisance abatement laws to ban dispensaries.
It suggested that some restrictions could be allowed, such as one on dispensaries that do not grow marijuana on-site.
The Costa Mesa ordinance, in response, would specifically ban dispensaries using off-site growers.
Current city law defines a dispensary as any one person involved with medical marijuana; the revision would change that to three people.
Commissioner Colin McCarthy was the lone no vote. He said the city was getting ahead of itself by aligning with the court’s interpretation rather than waiting for binding orders.
Sue Lester, a council candidate who runs a dispensary, praised the commission for “taking the high road.”