By Steve Elliott of Toke of the Town
A Riverside County, California judge ruled in favor of a medical marijuana dispensary on Tuesday, ordering the city of Rancho Mirage to have the building inspected for code violations and to issue a certificate of occupancy.
Rancho Mirage on February 3, 2011.
Rancho Mirage has a city ordinance prohibiting storefront medical marijuana dispensaries "due to the significant negative secondary effects that such dispensaries have been found to create -- such as increase crime," City Attorney Steve Quintanilla claimed in a written statement. (He's mistaken or lying; the shops have been shown to create no such thing.)
Quintanilla and attorneys for Desert Heart argued on Tuesday in Indio before Riverside County Superior Court Judge Randall D. White on the patient collective's motion for a writ of mandate requiring the city to conduct a code inspection and consider issuing a certificate of occupancy to the dispensary, according to court papers.
City attorneys opposed the motion, claiming that requiring Rancho Mirage to issue the permit would "affirmatively authorize and entitle a medical marijuana dispensary to operate in the city."
"Such an affirmative authorization is not contemplated by state law, and would potentially subject the city to federal prosecution," city attorneys argued. "The city should not be forced to issue any entitlements that would ostensibly authorize a federally designated illegal use."
But attorneys for the collective countered that issuing the permit only gives the permit holder "the option to conduct an activity."
"It does not constitute a command to conduct the activity," attorneys for the collective wrote in their reply to the city's opposition. "Moreover, simply using the permit does not involve handling marijuana or any other activity that is illegal under federal law."
Judge White had previously ruled that Rancho Mirage's ban on medical marijuana dispensaries was invalid without resolving Desert Heart's damages claim. In January, he ordered the collective's owners to produce financial records and evidence of their claims.
City Attorney Quintanilla said Rancho Mirage will appeal Judge White's ruling on its dispensary ban.
The California Supreme Court is currently reviewing cases involving the rights of four cities -- Riverside, Long Beach, Dana Point and Upland -- to regulate or prohibit dispensaries, according to Quintanilla. A decision isn't expected for about a year, he said.
California law has specifically allowed patient collectives to operate since SB 420 clarified and expanded the state's1996 medical marijuana law in 2003. Riverside County has a ban on storefront dispensaries and is in the process of forcing several of them to shut down in unincorporated communities.
Article From Toke of the Town and republished with special permission.