Blog: Dispensaries won’t get a Supreme makeover

I riffed this from my response to a Save Cannabis email, which suggested a successor to AB 2312 would be introduced in the 2013 session of the California Legislature. If so, that’s very good news for medical cannabis dispensaries (and patients, too). Here’s why:

Improving and strengthening our medical cannabis laws is hardly a task that needs to be postponed until after the Riverside ruling. Assuming the most positive outcome possible, the Supreme Court may strike down per-se nuisance bans, which would be welcome news indeed. Unfortunately, per-se nuisance bans are only part of the bigger legal puzzle (albeit a ginormous part), as cities and counties still hold all the land-use trump cards. If Riverside falls, they can be counted on to pass new cannabis laws and operating requirements that stop short of a total ban, and those Dispensary Bans Lite will generate a whole new set of conflicts and lawsuits.

Our state appellate courts are not staffed by lawmakers, but by judges who interpret the laws passed by others. A positive Riverside ruling will negate the worst type of anti-dispensary ordinance at the local level, but it will not magically erect a pre-emptive scheme of state cannabis regulations in doing so. We cannot afford another long, hot summer of federal dispensary raids invited in part by our own failure to regulate dispensaries better. Whatever its flaws, AB 2312 set up a registry of cannabis suppliers, created a state Board of Medical Marijuana Enforcement, authorized receipt of cannabis tax revenues at both the state and local level, and provided other controls that fell far short of anything found in Colorado. Even so, those modest steps have drawn cries of “monopolist” opposition. Seriously?

As for the state courts, they’ve repeatedly directed medical cannabis advocates back to the Legislature to seek fixes to the laws, which don’t protect us nearly as well as we all assume they do. Putting all of your eggs in the SB 420 basket and hoping a good Riverside ruling will make it all better doesn’t strike me as prudent. We did that with Anaheim. We were doing it with Long Beach until the California Supreme Court declined to review its moot dispensary law. We did it with Kelly, too, and look where that got us: 99-plant recs for every grower and a new round of outdoor growing bans to deal with all the 99-planters. Kelly was great news for marijuana defense lawyers, but it’s turned into a total zoning disaster … because MMJ patients either misunderstand what the justices actually said, or more likely they just don’t care. (True or false: the Kelly court overturned the 6-plant limit as being unconstitutional in all cases. Careful now…)

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Any single court case will address a single set of facts, not provide guidance for the full range of behaviors, regulations and business models that comprise the California medical cannabis industry. That’s up to the state Legislature and the attorney general or, in their appalling absence, the local yokels. Are Long Beach-style regulations legal under SB 420 and/or federal law? What about Mendocino County’s defunct zip-tie cultivation program, which is now the subject of a federal subpoena? How about the statewide rush to embrace outdoor growing bans? Riverside isn’t going to tell us, so the flurry of local pseudo-dispensary-bans and non-dispensary, growing ordinances will continue unabated.

AB 2312 wouldn’t have stopped the stampede, either, but it would have tilted the scales more in our favor by limiting the ability of cities and counties to pass dispensary bans without certifying patients had some sort of safe access in other jurisdictions nearby. It stopped short of fully “occupying the field” of cannabis regulations, but that’s the main beef against SB 420 right now. If the Riverside ban stands up, it’s because the Supreme Court will have ruled that it’s not pre-empted by SB 420 or the state Controlled Substances Act. We can hope for the best, of course, but we also should prepare for the worst by taking the issue of state pre-emption out of the court’s hands (with cities, counties and local cops and sheriffs fighting all the way).

Cannabis laws are not either-or propositions. They are plural, not singular, and they can be proposed and pushed concurrently, much like our efforts to draft new legalization measures. We may all breathe a little bit easier if and when the Riverside ordinance goes down, but it won’t provide much cause for celebration as the feds continue to pick and choose their targets. We need to counter the fed-local pushback and address some of the very real problems that have been documented with the unregulated cannabis marketplace.

A more robust regulatory scheme is in California’s future, and there is zero harm to be suffered by introducing and debating a bill that does what SB 420 cannot. In fact, the much greater harm comes from doing nothing while California burns. Failing to take action now would push bill introductions back to February 2014 at the earliest, and there’s simply no good justification for sitting out 2013 on the legislative bench. Kudos to ASA, CalNORML and others for shouldering the heavy load.