Judge Issues Injunction Against L.A.’s Medical Marijuana Law

December 11, 2010 – A judge handed Los Angeles a setback in its faltering drive to limit the number of medical marijuana dispensaries, granting a preliminary injunction on Friday that bars the city from enforcing key provisions in its controversial six-month-old ordinance.

The decision, issued by Los Angeles County Superior Court Judge Anthony J. Mohr, leaves the city with limited power to control pot stores, which opened by the hundreds, angering neighborhood activists when city officials failed to enforce a 2007 moratorium.

Near the end of his 40-page ruling, Mohr acknowledged “there is a good chance that a large number of collectives could open once this injunction takes effect,” but said his order was warranted because the dispensaries that sued the city are highly likely to prevail in a trial.

The City Council first discussed regulating dispensaries 5 1/2 years ago. At the time, the Los Angeles Police Department could find just four of them. It was five years before the city’s ordinance, one of the most complex and convoluted in the state, took effect.

More than 100 dispensaries have filed at least 42 lawsuits challenging the ordinance. “We’re singing ‘Happy Days Are Here Again,’” said Stewart Richlin, an attorney who represents nine dispensaries, while David Welch, an attorney who represents more than five dozen, described his clients as “ecstatic.” He said Mohr’s decision would curtail city enforcement efforts. “It means they can’t use strong-arm tactics, such as arresting my clients,” Welch said.

But Jane Usher, a special assistant city attorney, said, “I suspect that their exuberance will be short-lived.” She noted that Mohr, in ruling against some provisions, also suggested ways to fix the ordinance. “He left 90% of it intact and gave us methods for quickly correcting the remaining provisions. I think we’ll be gracious and accept,” she said.

Councilman Ed Reyes, who led the City Council’s drive to draft the ordinance, said he hoped to have a proposal to address the judge’s ruling by Monday. “My sense of urgency is that great,” he said. “I’ve already learned from the past that, if you open up the window a little, people just crash through. We have to close that window as quick as possible.”

Mohr enjoined a crucial provision of the ordinance that outlawed all dispensaries in Los Angeles except those that registered with the city under the moratorium the council placed on new stores. He ruled that the provision is unconstitutional because the ban was not properly extended and expired almost two months before the Nov. 13, 2007, registration deadline for dispensaries.

“The justification for using that date as a bright line was compromised, if not confounded, by the fact that it was unnecessary to register,” he wrote.

His decision throws into disarray the city’s ongoing process for identifying which dispensaries are qualified to stay open. The council has already delayed by six months enforcement of the ordinance’s restrictions, such as requiring dispensaries to be at least 1,000 feet from schools.

The judge, however, offered the council a quick remedy. He said the council could simply allow all dispensaries that existed before a certain date and ban the others. He noted that the documents that dispensaries filed with the city in 2007 when they registered could be used as proof they were operating at the time. “Amending the ordinance accordingly would most likely be the easiest way to avoid another equal protection challenge,” he said.

Usher said the city attorney’s office would probably recommend the council do that.

Michael Larsen, president of the Eagle Rock Neighborhood Council, said, “I think what Judge Mohr has said is that the city attorney and City Council have written a flawed ordinance, and they need to go back to the drawing board very quickly to get it fixed.”

Mohr’s decision came after the fast-multiplying lawsuits were routed to his courtroom. The judge delved deeply into the state’s medical marijuana laws in a series of hearings that stretched out over more than half the year.

Defending the ordinance has cost the city many hours of legal time. At some hearings, half a dozen city lawyers showed up. Usher said the city would probably appeal some of the ruling.

The judge also decided the ordinance violated the due-process rights of the dispensaries because it shut them down without a hearing, and the privacy rights of patients because it required dispensaries to make records on members available to the police.

The judge concluded state law preempts a provision that makes violations of the ordinance subject to criminal penalties under the municipal code and a provision that sunsets the ordinance after two years, which he said is “a blanket ban” on collectives and “goes too far.” By John Hoeffel Source.

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