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Cities can ban pot dispensaries, according to state Supreme Court

The California Supreme Court's decision Monday allowing individual municipalities to ban medical marijuana dispensaries won't deter San Diego City Council's attempts to pass an ordinance that will allow the controversial shops to operate here.

Council members, along with the city attorney's office, are currently crafting legislation that would allow medical marijuana dispensaries to open in certain parts of the city.

“I maintain my belief that legitimate patients should have safe access to medical marijuana without impeding on the safety and character of our neighborhoods,” said City Council President Todd Gloria.

The council recently rejected a package of proposals by San Diego Mayor Bob Filner that would have allowed the dispensaries to operate in certain commercial as well as industrial zones with restrictions to ensure they were only selling to card-carrying patients.

City Council would prefer to have more restrictive zoning and public-safety language, Gloria said.

San Diego City Attorney Jan Goldsmith has filed approximately 100 civil lawsuits against medical marijuana dispensaries in the past two years, claiming the businesses are not allowed under San Diego's existing zoning laws. The local courts have sided with Goldsmith, resulting in the closure of most of the city's dispensaries.

"This California Supreme Court decision demonstrates that our office’s interpretation of the law, which has been upheld by local Superior Court Judges, is sound," Goldsmith said. "If the City Council wants to allow dispensaries to locate in San Diego, they may do so. But, they are not required to do so.”

The debate about the legality of medical marijuana dispensaries began almost the moment California voters passed the Compassionate Use Act in 1996, which prevented patients and caregivers from being prosecuted under federal law.

The California legislature added a statute in 2003, the Medical Marijuana Program, further defining how dispensaries can operate.

Monday, the state's high court said neither statute has language that "expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders," the court opinion said.

In 2011, San Diego City Council briefly passed an ordinance that would allow for the dispensaries to exist in certain industrial areas, but they quickly rescinded the legislation.

The council is looking at a similar proposal — originally drafted by Councilmember Marti Emerald — but with new restrictions.

Thomas Jefferson School of Law professor Alex Kreit, the former chair of the city's medical marijuana task force, said the ruling won't likely change that likelihood of some form of regulation being enacted in San Diego.

"I haven't really seen anyone on council — or at least not a majority — indicate any interest in banning medical marijuana dispensaries in San Diego," he said. "I think council wants to have regulation and allow dispensaries.

"The way things have played out, there's no ordinance and, because there's no ordinance, there's a defacto ban."

The debate revolves around what areas — and how many areas — in San Diego should be allowed to have medical marijuana dispensaries.

There's little disagreement when it comes to residential areas, but the problem surfaces when discussing commercial areas that allow for residential uses. Some want those areas off limits, even if no residents live there.

Filner said he is disappointed with the ruling, but he is still determined to pass some form of legislation to allow their operation in San Diego.

“Although this ruling does a disservice to those who need compassionate care through the use of medical marijuana, it does not hinder our aim to provide regulated access to medical marijuana,” he said.

San Diego attorney Lance Rogers, whose clients include medical marijuana dispensaries, said the ruling could actually be a good thing for medical marijuana proponents.

"It establishes the rule of law that a city can pass an ordinance regulating medical marijuana," he said. "It establishes the fact that dispensaries are a legally recognizable entity and exist under California law and cities can regulate them. There should be no additional argument that a city is not able to pass regulation."

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