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Medical marijuana ruling over nuisance ordinance adds to confusion over med-pot

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POSTED March 1, 2012 8:47 p.m.

SANTA ANA  (AP) — A California appellate court has ruled that cities cannot use nuisance ordinances to ban medical marijuana dispensaries, further adding to the confusion about how municipalities should regulate clinics protected under state law.

The Fourth District Court of Appeal on Wednesday struck down a 2010 preliminary injunction by a trial judge that would have shut down Evergreen Holistic Collective in Lake Forest, but a stay was granted. Evergreen was shuttered in October as part of a statewide crackdown by federal authorities.

In its ruling, the three-judge panel said nonprofit collectives can only dispense marijuana from where it's cultivated and cannot be brought from somewhere else and dispensed at a store.

State law "requires that any collective or cooperative activity involving quantities of marijuana exceeding a patient's personal medical need must be tied to the cultivation site," the judges wrote.

The ruling is the latest in a string of cases that attempts to interpret the state's medical marijuana law and provide guidance for cities and counties that are trying to curtail pot shops.

A Los Angeles-based appellate court last year struck down Long Beach's attempt to license pot stores, ruling the local ordinance conflicted with federal law. And another appellate court upheld Riverside's right to close and prohibit dispensaries despite the state's medical marijuana law.

Given the various rulings at the appellate level, the California Supreme Court will review the cases, possibly later this year, to determine how municipalities should handle dispensaries.

Recognizing the ongoing debate over medical marijuana, the Fourth District judges said they realize their decision might disappoint those on opposing sides.

"We emphasize that these are policy outcomes outside our power to reach or grant because we are constrained by the voters' and the legislature's enactments," the panel wrote.

The ruling also comes amid a stronger enforcement by the federal government to harness pot clinics in California. While pot remains illegal under federal law, California became the first state to legalize marijuana for medical use in 1996.

Earlier this week, the U.S. attorney's office in Los Angeles mailed about 50 letters to dispensaries to three cities in San Bernardino County, ordering them to close or face possible criminal charges and fines. About 140 dispensaries in more than 20 Southern California cities have been told to shut down since October when federal authorities began their statewide effort.

Meanwhile, a judge in Sacramento this week dismissed a lawsuit that challenged the crackdown. U.S. District Judge Garland Burrell rejected an argument by a collective that the Obama administration had reneged on a promise to let states set their own medical marijuana policies.

A lawyer for the collective said it plans to appeal.


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