ubdate: Wed, 12 May 2010
Source: National Law Journal (US)
Copyright: 2010 NLP IP Company
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Details: 
Author: Amanda Bronstad
Cited: Americans for Safe Access 
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Bookmark:  (Cannabis - California)
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Calif. Cities Sued Over Medical Marijuana Ordinances

Medical marijuana dispensaries have filed lawsuits against California 
cities, including Los Angeles, challenging ordinances that 
effectively threaten the existence of their businesses.

Besides the dispensaries, the plaintiffs include medical marijuana 
users and organizations that promote the use of medical marijuana.

Vincent Howard, founding partner of Howard | Nassiri, based in 
Anaheim, Calif., who represents at least 10 dispensaries in Los 
Angeles, expects more suits to be filed.

"As long as cities want to turn a blind eye and pretend like this 
isn't coming, there's going to be a lot of lawsuits and a 
proliferation of dispensaries," he said.

"We continue to see in California dispensaries trying all sorts of 
creative ways to try to establish their legality under cities' 
municipal codes," said Jeffrey Dunn, a partner in the Irvine, Calif., 
office of Best Best & Krieger. He is defending Lake Forest, Calif., 
in several suits. "To date, none of them has been successful."

On March 18, the nation's largest medical marijuana organization, 
Americans for Safe Access, sued the city of Los Angeles over an 
ordinance that requires that dispensaries be located at least 1,000 
feet from schools, parks, libraries, churches and other "sensitive uses."

Earlier this month, city prosecutors sent letters to 439 medical 
marijuana dispensaries, demanding they be shut down by June 7. 
Violators face six months in jail and a $1,000 fine, which increases 
to $2,500 per day after the deadline.

Americans for Safe Access sued on behalf of two dispensaries, Venice 
Beach Care Center and PureLife Alternative Wellness Center. In its 
complaint, the organization said that the ordinance is too 
restrictive. It would be too burdensome for many dispensaries to 
relocate, "effectively forcing plaintiffs, as well as the vast 
majority of medical marijuana collectives in the City, to close their 
doors," the complaint said. "This violates due process, since 
plaintiffs have a vested right to operate their collectives, which 
cannot be deprived in such an unreasonable manner."

Joe Elford, chief counsel for Americans for Safe Access, which is 
based in Oakland, Calif., did not return a call for comment. Frank 
Mateljan, a spokesman for Los Angeles City Attorney Carmen Trutanich, 
said: "We're ready to defend the city's ordinance against any 
challenges, and we're confident that the ordinance will stand up in court."

Two other cities that have been sued in recent months include Lake 
Forest and Costa Mesa, Calif., both in Orange County. A proposed 
class action was filed on April 2 in federal court in Los Angeles 
against both cities on behalf of four medical marijuana users. The 
plaintiffs alleged that the towns have discriminated against them 
under the Americans with Disabilities Act by denying them fair access 
to public services.

"Each plaintiff is dependent on the use of medical marijuana to 
assist with their being able to participate in major life activities 
and receive services or participate in programs provided by public 
entities such as: use of public transportation, public roadways, 
libraries, parks and other public services," the complaint alleged.

U.S. District Judge Andrew Guilford in Santa Ana, Calif., on April 30 
denied the plaintiffs' motion for a preliminary injunction. "Because 
marijuana cannot be prescribed under the ADA, the Court finds no 
likelihood of success on the merits," he wrote.

A lawyer for the plaintiffs, Matthew Pappas of the Law Offices of 
Matthew Pappas in Mission Viejo, Calif., said that he was exploring 
his interlocutory appeal options.

"Our position is that the federal government has acted to allow an 
exception" under the ADA, he said. He noted that city leaders in 
Washington recently approved the use of medical marijuana.

A lawyer for Costa Mesa, James Touchstone of Jones & Mayer in 
Fullerton, Calif., did not return a call for comment.

Dunn noted that the Lake Forest ordinance does not ban dispensaries; 
it merely disallows them in commercial zones. "Whether they're in 
compliance with state law, they're not in compliance with our zoning," he said.

Lake Forest has sued 21 dispensaries since September, he said. One 
dispensary, the Lake Forest Wellness Center and Collective, 
countersued on April 13, alleging that the city's actions violate state law.

"I know the subject of marijuana has been a taboo subject for a long 
time, but it's a legal business," said Howard, who represents the 
Lake Forest Wellness Center and Collective. "People should be allowed 
to move forward and open these businesses. It's not up to the cities 
to change California law."

Another suit, filed on April 16, alleged that Costa Mesa "severely 
restricts access to medical marijuana effectively forcing plaintiffs, 
as well as the vast majority of medical marijuana collectives in the 
City, to close their doors."

The suit was filed by the Orange County Directors Association and two 
dispensaries, Herban Elements Inc. and Medmar Patient Care 
Collective. An attorney for the plaintiffs, Christopher Glew of Glew 
& Kim in Santa Ana, did not return a call for comment.