What The State Court Ruling On Medical Marijuana Dispensaries Means To San Diego
May 7, 2013 1:19 p.m.
Alex Kreit, former chair of the city's Medical Marijuana Task Force and professor at Thomas Jefferson School of Law
CAVANAUGH: The issue of access to medical marijuana got even more complicated yesterday with a ruling from the California Supreme Court. The Court found that cities and counties can use their zoning powers to ban the establishment of dispensaries within their borders of the the rules was in response to a law banning medical marijuana shops in the city of Riverside. But it comes on the heels of an effort here in San Diego to develop zoning regulation, allowing dispensaries to legally set up shop. Joining us to discuss where the state court ruling puts us in the ongoing controversy is my guest, Alex Kreit, former chair of the city's medical marijuana task force and professor at Thomas Jefferson school of law. Welcome back.
KREIT: Thanks for having me.
CAVANAUGH: We asked the city attorney of Oceanside to join us. Oceanside is a city that has banned medical marijuana dispensaries. But the city attorney of Oceanside was unavailable. Now, Alex if you can, remind us of the details of the case that went before the state Supreme Court.
KREIT: This case came out of Riverside. And it was really a case that dealt with the ban they had there and asked pretty simply is it lawful for cities or counties in the State of California to ban dispensaries even though the state allows for this activity? And the California Supreme Court took this issue up, and I think not very surprisingly given how the oral argument went, said that it was okay for cities and counties to ban medical marijuana dispensaries in California.
CAVANAUGH: Did they say why?
KREIT: Well, the reason is the tradition land use power that cities and counties have. If you think about what localities do, land use, zone, that's at the heart of the power of cities and counties. So the Supreme Court said if the legislature wants to erode that in any way, they're going to have to speak more clearly. They didn't say that the legislature can't forbid a city or county from banning dispensaries. They just said under the current law that prohibition doesn't exist, that under the current law, the state hasn't really told cities and counties what to do. They have the power and the authority.
CAVANAUGH: Conversely, nothing in this ruling redistricts cities and counties have having legal medical marijuana dispensaries; is that right?
KREIT: That's correct. It basically just said this is sort of within the discretion of the localities. Under the current state law, we don't have a comprehensive regulatory scheme at the state level to say the at least. It's a very open-ended law this we have statewide in California. The Supreme Court said given the nature of this law, how open-ended it is, we can't say that the legislature wants to redistrict localities from banning dispensaries. At the same time, localities can if they want to to regulations permitting dispensaries.
CAVANAUGH: Given that, what impact do you think this ruling is going to have on California cities deciding whether or not to zone for dispensaries? Is this a setback?
KREIT: I don't think so. I think most localities that want to have bans already have enacted bans. So I think it's unlikely that we'll see cities and counties looking to ban dispensaries result of this ruling. There might be a few here and this. For the most part, if you look at things across the state, most localities where they want to ban, they've already enacted one. So I don't think this is likely to spur action on the local level although I do think it may help give some momentum to get more clarity at the state level. People have been saying for years, with really good reason, that California's medical marijuana laws needs to be clarified by the state legislature. And I think this decision may give a little bit more momentum to that argument.
CAVANAUGH: Yesterday San Diego city attorney Jan Goldsmith spoke about this ruling. He said it demonstrates that his office's interpretation of the medical marijuana law is correct.
NEW SPEAKER: If you heard the advocates, they accuse the city of violating the law, and we're going to sue you, and civil rights and all that. And that now goes away. So I think what it means is that the city, the City Council and the mayor can make their policy decisions without fear or concern about the city getting sued or retribution.
CAVANAUGH: Do you agree with that?
KREIT: Well, I think to an extent. The one thing I'd say is that San Diego is in a bit of a different situation than Riverside was. In Riverside, they had enacted a ban. In San Diego, we have almost a ban by default. So I think legally speaking it's in a different status right now. The City Council has never formally banned dispensaries. Instead we just have no law one way or another. The city attorney's office has taken the position that in absence of a law allowing for dispensaries, they must be prohibited. Certainly one could argue that we take the opposite view, if somebody creates a new good and wants to sell it, should we assume it's prohibited unless it's expressly allowed? That's a different question than in Riverside. I would say though he's correct on the more broad point, which is this ruling does tell the San Diego City Council they can move ahead, enact zoning regulations and they don't have to worry as much about the potential for litigation about whether those zoning regulations comply or conflict in some way or how they match up with the state law. The Riverside case I think tells the City of San Diego, the City Council and the mayor's office, if you want to go forward, enact some regulations, which is what they're looking at, you can likely do so you should your land use power without fear of litigation and response.
CAVANAUGH: I want to examine a little bit more of the reasons behind cities and counties wanting to ban dispensaries. You were on the medical marijuana task force. What kind of testimony did you hear from people who didn't want medical marijuana dispensaries allowed or near their area?
KREIT: Frankly, I think that it's largely people who are just opposed to medical marijuana. There's a lot of people out there who wish that Prop 215 had never passed in 1996, would like to relitigate the issue if you will in the state. And so they, even though they didn't get their way at the state level in 1996, hope to get their way at the local level and in localities that perhaps are more conservative or where there's more people who favor that sentiment. Those other kinds of places that might be more inclined to ban. San Diego is a place where at least so far there hasn't been much political interest in a ban. The City Council has never expressed any real interest in going down that road. And in fact right now, they're looking at trying to get regulations in place again. We're I think in a bit of a unique situation. Most of the big cities in the state already have regulations in place. In San Diego, I think the City Council has expressed an interest in the principle of getting regulations in place. And in fact they've done a lot of work on this issue. But there's just kind of been hurdles here and there along the way, and because of a lot of quirks and politics and a lot of policy disagreements about the details, we just don't have anything in place yet. But I do think it's unlikely that we'd see the City Council move to formally ban dispensaries, just given what the members have said on the issue.
CAVANAUGH: Not being an attorney, one of the things that occurred to me when I heard about this ruling yesterday is if local jurisdictions have the right to land use and zoning policies so that they ban medical marijuana dispensaries, would they also be free to ban other legal establishments like a liquor store?
KREIT: Yeah, I think there certainly could be some credence to that argument based on this decision. If you look at the Court's ruling, it really is a -- would be a case by case basis. The Court did say the state legislature can stop localities from banning certain land uses if they want to. It's a question of what exactly has the state said on this issue. So if the state has adopted a broad enough regulatory scheme, which they perhaps have in the case of alcohol, maybe that is going to be something that influences the decision. But alcohol is I think an interesting example. If you look at the history where you do still have in many states in the country wet and dry counties. And this is an area where it has been allowed to be decided on the local level. I think the argument that marijuana perhaps is different as far as the idea of wet county, dry counties, is that if the state believes that this is a medicine, and in California we do, and the voters have decided that, and the state legislature has affirmed that, I think that it's harder to defend on a policy basis the idea that we're going to redistrict patients from accessing something that has been declared to be a medicine. I think that's fundamentally a different story than saying we don't want to have bars or liquor stores in our city because this is something used for recreation. To the extent that marijuana has been recognized as a medicine in California, I think on a policy basis, it is a little bit of a different animal there.
CAVANAUGH: Okay, well, as you're saying, it seems to come back to the state legislature then. And as I understand it, there is a bill working its way through the assembly that directly addresses regulations for medical marijuana dispensaries. What would it do?
KREIT: Is this a bill by Tom Ammiano, and it's a bill that would in its current incarnation, and these things may change, but it contemplates establishing a division been ABC alcohol and beverage control department in the state to regulate medical marijuana on a statewide basis. And that would regulate the distribution aspect, the dispensaries, the manufacturers, the cultivation, are the labeling, testing to make sure if it's pure, to determine if there's adulterants. So I think it would get medical marijuana under more control at the state level. Is this one of the biggest problems in California, especially if you look at what we have in comparison to some other states like Colorado. While it makes sense to have a lot of land use issues decided locally, there's a lot of regulation that really is best done by the state here. In particular when you're talking about licensing, determining if people have criminal backgrounds and shouldn't be able to get a license, determining what sort of testing should be required, all that sort of thing is really something that's better done at the state level, more efficiently done at the state level, and a lot of these are things that localities just aren't used to regulating. I think it makes a lot of sense to get something done at the state level. The tricky part is always of course the politics and the details, getting everybody at the table to agree on something that everybody is going to find acceptable or at least enough people find acceptable that it can get passed through the legislature. I am hopeful this new decision may help give momentum to that. Because I think the legislature might take a look and say this issue has been in front of the California Supreme Court an unusual number of times. A couple of cases before the medical marijuana program account was passed, not to mention all the other cases that are currently working their way through the Courts of appeals. And when you have that much litigation on one issue, it says one thing: The current law is not as clear as it needs to be. If it was clear as it should be, there wouldn't be all this stuff to sue about. So hopefully the legislators will take a look and say let's put an end to this endless litigation or at least get some clarity here.
CAVANAUGH: We can't leave out the other factor in this equation, and that is the official government. Just so our listeners know, we contacted U.S. attorney Laura Duffy's office and asked if she'd join our discussion or send us a statement. Her office declined. There's a continuing crackdown on medical marijuana dispensaries in San Diego by the U.S. attorney. Just one day after mayor Filner presented his proposed medical marijuana ordinance to the City Council, DEA agents shut down one of the last remaining dispensaries in San Diego, the one-on-one patient association run by the guest we had on last time we discussed this issue, Ken Coal. Do you think that's a message to city leaders?
KREIT: I think it is hard to take a look at what the U.S. attorney has done going after this individual who was speaking out for forcefully on the issue without wondering whether their actions were motivated by this gentleman's political involvement and speaking out on his beliefs on this topic. And I think it's also -- the timing raises a possibility that they're doing this to try and interfere or try in some way to muddy the waters for what the City Council is doing, raiding one day after they're considering this issue.
NEW SPEAKER: There are federal decisions which we believe are clear that says that federal criminal laws on marijuana preempt state law. What does that mean? Even if you allow a dispensary, whether it be in an industrial, retail, or commercial, they can still get prosecuted under federal law because the possession, distribution, transportation of marijuana is a crime under federal law.
CAVANAUGH: There we go back, Alex, to the idea that the reason we're having all these state lawsuits is because there's not a clear definition in the state legislature about whether the regulations are for medical marijuana dispensaries. But can any state legislation resolve this conflict between federal law on marijuana and state law that legalizes medical marijuana?
KREIT: No state law is going to resolve that conflict between state and federal law. I would say it's important to distinguish the difference that's often overlooked here between what the city attorney, Mr. Goldsmith, called preemption, and direct prosecution. Preemption is a specific thing in the law, and federal law does not preempt state or local laws in this area. That would mean these laws are just null and void. And courts have been very clear that federal law does not preempt state law in that sense. But what is true, which he noted is that courts have been equally clear that the federal government and on its own if at the present times come in and prosecute individuals who are violating that federal law. I think it's unfortunate that Laura Duffy has resisted invasions to talk more about her position on this issue. I think it's incumbent upon her in her position to come out and talk about what her office is doing and explain what exactly her office's position is, why they're going after the people they're going after in light of what the folks at DOJ in DC have said and what President Obama has said. I think when you talk about this issue, when you look at Obama saying that we're not going to go after people in compliance with state law, Laura Duffy does have that legal authority, but I think it's really a shame that she doesn't explain why her actions haven't been in conformity with what President Obama said he was going to do.
CAVANAUGH: Thank you so much again.
KREIT: Thank you.