The California Supreme Court heard arguments Tuesday on whether local governments can ban retail pot dispensaries within their borders, a question that could lead to the medical marijuana industry's expansion or further contraction depending on the outcome.
After several hours of arguments at a special session convened at the University of San Francisco in honor of the law schoo's 100th anniversary, it was hard to tell which way the justices were leaning. They are expected to issue a ruling within 90 days.
At issue is a Southern California pot club - the Inland Empire Patient's Health and Wellness Center - that sued the city of Riverside over its decision to ban pot clubs.
Opponents argue state law empowers local governments to ban the establishment of pot clubs but supporters contend local governments can only regulate the pot industry, not ban it all together.
"I feel that we clearly have some justices that are in our corner," said J. David Nick, an attorney representing the city of Riverside. "Some of them showed their hands more than others, and I'm feeling optimistic that they can convince the others that may have a doubt."
Many of the local bans were enacted after the number of retail medical marijuana outlets exploded in Southern California after the U.S. Department of Justice said in 2009 that prosecuting pot sales would be a low priority under the Obama administration.
"These places are popping up everywhere, and the typical city that had one or two, two became four and four became 16 or 20," said Jeffrey Dunn, an Orange County lawyer who argued along with Nick in favor of the local bans. "What has happened as a practical matter is this state law, which authorizes the medical use of marijuana, and federal law that prohibits it, has forced cities and counties to be the ones to regulate this like any other entity that crops up in our business districts."
Medical marijuana advocates maintain that the state's medical marijuana laws, the nation's first, allow local governments to set limits on dispensaries, but not to outlaw them. About 200 cities and counties already have outlawed storefront pot shops, according to the pro-dispensary group Americans for Safe Access, but this was the first time the state high court considered if such all-out prohibitions are legal or barred by California's medical marijuana laws.
"If it's the case localities can ban, you could end up with the entire southern and middle portion of the state banning dispensaries, which clearly does not promote uniformity throughout the state or safe access" to marijuana, Americans for Safe Access legal director Joe Elford said before the hearing.
Along with the permissibility of local dispensary bans, the state court's seven justices must weigh whether marijuana's federal status as an illegal drug prohibits local governments from explicitly authorizing its distribution at all, as about 50 California counties and cities have.
The arguments come in a case out of Riverside, where city lawmakers used their zoning powers to declare storefront pot shops as public nuisances and to ban them in 2010. The Inland Empire Patient's Health and Wellness Center, part of the explosion of retail medical marijuana outlets, sued to stop the city from shutting it down.
A mid-level appeals court sided with the city, but other courts have come to opposite conclusions. Last summer, a trial judge ruled that Riverside County could not close medical marijuana dispensaries in unincorporated areas because the move did not give the shops any room to operate legally under state law.
An appeals court in Southern California also struck down Los Angeles County's 2-year-old ban on dispensaries, ruling that state law allows cooperatives and collectives to grow, store and to distribute pot.
In a separate case in Long Beach, however, an appeals court said federal law pre-empts municipalities from allowing dispensaries.
The rush to adopt bans has lessened over the last 18 months, since the four federal prosecutors in California launched a coordinated crackdown on dispensaries by threatening to seize the properties of landlords that leased space to them. Hundreds of pot shops have since been evicted or closed voluntarily.
Monte Francis works for NBC Bay Area. Lisa Leff works for the Associated Press.