Herrera defends local regulation of medical marijuana dispensaries in Supreme Court brief
Legal validity of local ordinances at stake in potentially landmark California Supreme Court case, Pack v. City of Long Beach
SAN FRANCISCO (June 18, 2012) -- City Attorney Dennis Herrera today strongly defended the right of local governments in California to issue permits authorizing medical cannabis collectives to serve their patients, urging the state Supreme Court to reverse a Court of Appeal holding that such regulation is substantially preempted by federal law. The amicus brief joined by Santa Cruz County Counsel Dana McRae argues that discretionary permitting, an integral element in planning and land use policy, is particularly essential for local regulation of medical marijuana dispensaries. The appellate court's Oct. 4, 2011 ruling, Herrera and McRae contend, wrongly hinders the ability of local governments to protect public health and safety effectively, and to enact policy innovations tailored to local needs.
The potentially landmark case now before the state's high court arose from a legal challenge to a City of Long Beach ordinance that sought to regulate medical cannabis collectives within city limits. Plaintiffs Ryan Pack and Anthony Gayle sued on August 30, 2010, seeking a preliminary injunction and court declaration that the Long Beach law was invalid and federally preempted. When the Superior Court declined to enjoin Long Beach, plaintiffs appealed to the California Court of Appeal, which ruled last October that the ordinance was in large part preempted by the federal Controlled Substances Act. The three judge appellate panel granted the injunction -- effectively halting local permitting of medical marijuana collectives statewide, including in San Francisco and Santa Cruz. San Francisco resumed its permitting process when the California Supreme Court granted review on Jan. 18, 2012, while Santa Cruz's moratorium on permitting remains in effect.
"What's at stake in this case is more than just an ordinance in Long Beach," said Herrera. "It's about whether local governments will be allowed to fulfill the promise of California's Compassionate Use Act, which voters enacted in 1996 to ensure the safe availability of medical marijuana to those in need. San Francisco's model regulatory system has for many years carefully balanced the needs of patients and caregivers with neighborhood concerns over health and safety. Our ordinance works. But an unworkable interpretation of federal law, which would undercut local regulation, serves no public interest -- not for patients, not for neighbors. I'm very grateful to Santa Cruz County Counsel Dana McRae for joining San Francisco in our amicus brief urging the California Supreme Court to reverse the appellate court's ruling. I also applaud Assemblymember Tom Ammiano for his leadership on state legislation to regulate and protect safe access to medical cannabis throughout California."
On May 31, 2012, the California Assembly passed AB 2312, the Medical Marijuana Regulation and Control Act, to create the first statewide regulatory framework for the medical cannabis industry in California. The legislation authored by Assemblymember Tom Ammiano (D-San Francisco) would establish the Board of Medical Marijuana Enforcement within the California Department of Consumer Affairs to oversee and regulate California's medical marijuana industry. It would also authorize local governments to impose an excise tax.
"Fifteen years after voters passed Proposition 215, with local governments like San Francisco and Long Beach making great progress, the California Legislature is finally taking responsibility to effectively regulate medical cannabis statewide," said Ammiano. "Now is not the time for the state Supreme Court to turn back the clock. With the continuing federal crackdown, we simply cannot afford to continue keeping our heads in the sand and pretend that everything is fine. The compassionate use of medical marijuana is supported by over 80 percent of Californians. I'm grateful to City Attorney Dennis Herrera and Santa Cruz County Counsel Dana McRae for their amicus brief, and I urge the Supreme Court to heed it."
The case is: Pack v. Superior Court of Los Angeles County (City of Long Beach), California Supreme Court Case No. S197169.
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