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Court of Appeals Rules Against Dispensary

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On March 29, 2013, the Second District Division Eight of the California Court of Appeal ruled that the City of Agoura Hills was within its right to ban medical marijuana “dispensaries” as defined by the Agoura Hill Municipal Code.

The Court, in a ruling similar to that of Riverside v Inland Empire Patient’s Health and Wellness Center, held that neither the CUA or the MMPA preempts a city’s or county’s right to ban so called dispensaries. That the CUA and the MMPA did not create the right to distribute medical marijuana, but only created the “right” of a qualified patient or primary caregiver to possess or cultivate or distribute medical marijuana without thereby becoming subject to criminal prosecution under various sections of the California Health and Safety Code sections 11357, 11358 and 11358.

The ruling runs contrary to the recent decision by the same Appellate District but a different division in County of Los Angeles v Alternative Medicinal Cannabis Collective which held just the opposite, i.e the MMPA prevented the absolute ban on the distribution of medical marijuana. This case, however, along with the Riverside case and other cases ruling on the same subject matter, has been taken for review by the California Supreme Court who heard argument on February 5, 2013 and is expected to rule within 90 days of that date.

The rub is this. Will this case be also taken up for review due to the conflicting nature of the ruling by two different divisions of the same district court of appeal before the Supreme Court issues its ruling on the cases now before it or will the Supreme Court rule on the cases now before it before it takes this case on review, which surely should happen given that the court has taken up similar cases.

Meanwhile, while this case stays on the books, it is citable by those cities and counties that seek, by ordinance, to ban dispensaries. And as surely as night follows day, cities and counties hostile to medical marijuana distribution will send to court, as soon as possible, their legions of attorneys requesting injunctions to shut down existing “dispensaries” before this case evaporates into the ether.
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