Anaheim Ruling Could Be Useful in Upland Case

UPLAND – Three Upland medical marijuana cooperatives will remain closed, despite a published opinion filed Wednesday in a state appellate court.The co-ops appeared in court Friday to request a lifting of a preliminary injunction granted by a judge at the West Valley Superior Court in Rancho Cucamonga.

The judge ruled to uphold the injunction and keep the shops closed until the trial.

Upland is attempting to permanently close at least three medical marijuana cooperatives in the city. The city passed a zoning ordinance a few years ago that prohibits medical marijuana cooperatives from operating within city limits.

Aaron Sandusky, president of one of the shops, G3 Holistic, said he thinks the judge’s decision violates patients’ rights to life, liberty and the pursuit of happiness.

“I’m not saying medical marijuana will cure disease, but it’s a means of treatment from harmful side effects of prescription drugs or life-saving treatments that patients need,” Sandusky said. “And denying access affects their life and pursuit of happiness.”

The published opinion addresses the case of Qualified Patients Association, an Anaheim-based medical marijuana cooperative, versus the city of Anaheim. Qualified Patients sued the city in 2007, when Anaheim attempted to implement an ordinance banning all medical marijuana dispensaries.

The opinion was expected to address whether cities have the right to ban medical marijuana

cooperatives, but the judges ordered that component of the case to go back to trial court for more hearings.They did, however, determine that the state’s Compassionate Use Act, which decriminalized medical marijuana, applies over federal law when cities attempt to ban dispensaries based on federal law.

“The opinion there was certainly not bad news,” said Lanny Swerdlow, president of the Inland Empire chapter of the Marijuana Anti-Prohibition Project. “There was definitely good news, just not as much good news as we would have liked.”

It will be some time before the dispute between medical marijuana cooperatives and cities over the right to ban dispensaries through ordinances will be resolved, he said.

A footnote in the opinion was expected to prove useful for the shops, according to the cooperatives’ attorney Roger Jon Diamond.

The footnote ruled against an argument used by attorneys for the city of Anaheim in a case against a medical marijuana cooperative in the city. The city of Upland relied on the same cases to argue for a preliminary injunction on the co-ops that was granted by a judge at the West Valley Superior Court in Rancho Cucamonga.

The injunction was granted on the basis of the two cases and the three shops were forced to close on Tuesday.

“Footnote 4 discredits those two cases and distinguishes them just as I did to Judge Plotkin,” Diamond said. “I was unable to persuade Judge Plotkin that these two cases did not apply and now Footnote 4 agrees with me.”

The cases referred to were the city of Claremont vs. Kruse and the city of Corona vs. Naulls, which did not involve an ordinance like Anaheim’s, according to the opinion.

Bill and Sherrie Heim operate Old World Solutions, one of the three medical marijuana co-ops shut down Tuesday.

“We really want to take this from an illicit business to a licit business,” said Bill Heim. “I don’t think staying open and defying the court, even though we don’t agree with the court, is going to get us there.”

http://www.contracostatimes.com/california/ci_15846236?nclick_check=1