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California Supreme Court to weigh cities' bans on medical marijuana

David McNew / Getty Images file

Marijuana is shown at the Perennial Holistic Wellness Center, a medical marijuana dispensary, on July 25 in Los Angeles.

For the first time, the California Supreme Court will enter the medical marijuana debate Tuesday and hear arguments on whether municipal governments can ban retail pot dispensaries within their jurisdiction.

In the years since California voters legalized medical marijuana in 1996, about 200 cities and counties have outlawed pot shops, according to Americans for Safe Access, a pro-dispensary group. But Tuesday’s hearings in the state’s high court will mark an unprecedented test on whether cities can legally restrict them.

The hearing stems from a Southern California case from two years ago when a dispensary sued the city of Riverside, Calif., on its decision to ban pot shops. The dispensary claimed that cities and counties cannot ban or restrict something the voters have already approved.

“What the appellate court decided was that cities have a choice, and, in fact, 14 cities in the county of Santa Clara decided to ban dispensaries, San Jose being really the only one to allow it,” San Jose City Councilman Sam Liccardo told NBCBayArea.com.

Many of the citywide bans on pot dispensaries were enacted after the U.S. Department of Justice said in 2009 that prosecuting pot sales would be a low priority under the Obama administration, prompting an explosion of retail medical marijuana outlets in Southern California.

"These places are popping up everywhere, and the typical city that had one or two, two became four and four became 16 or 20," Jeffrey Dunn, an Orange County lawyer who will be arguing in favor of the local bans on Tuesday, told The Associated Press. "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." 

But advocates for medical marijuana say that California’s laws allow local governments to set limits on dispensaries, but not to ban them entirely.

"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 told the AP. 

Liccardo said he supports limiting the number of dispensaries but wants the cities to have the final decision.

“It is disconcerting if the state rules that cities don’t really have the ability to control when, how and where dispensaries operate,” Liccardo said. “It’s very important for a lot of communities because we know there are a lot of impacts with dispensaries – not all of them are good.” 

Courts have delivered mixed results on the issue in the state.

In two other cases, an appeals court in Southern California struck down Los Angeles County's two-year-old ban on dispensaries, and another appeals court upheld the ban in Long Beach, Calif., ruling federal law pre-empts municipalities from allowing dispensaries. 

But Alex Kreit, a Thomas Jefferson School of Law professor said the Supreme Court may be reluctant to strip cities of the right to enact the bans, likening the situation to states that permit counties to be "wet" or "dry" in allowing alcohol sales.

"It is really unusual for a locality to try to outright ban something that is legal under state law," Kreit told the San Jose Mercury News. "But I still think it's going to be an uphill battle for the medical marijuana argument in this case."

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