May 172012
 

A new medical marijuana dispensary is open in Fresno, but police say they plan to move quickly to shut it down.

The California Herbal Relief Center near Ashlan and Willow avenues doesn’t have a sign and relies on a doorman to allow entrance to the business, Jim Guy reports in the Fresno Bee. Once inside, workers are quick to ask visitors if they have a medical marijuana card. A worker, who did not identify himself, also said that the business can operate in spite of a city ordinance against dispensaries because “of a loophole” in the city code. He did not specify what the loophole was before asking a reporter to leave.

Lt. David Newton of the Fresno Police Department, disputed the claim of a loophole and said the department has “hand delivered a note that he needs to stop doing what he is doing.”

Newton said it is a common tactic for dispensary operators to cite a positive court decision received by a dispensary anywhere in the state as applying everywhere else.

“I am not aware of any decision that would allow it,” he said.

At least one of the dispensary’s neighbors is not happy to see the business in the area.

Yeu Cha, owner of Hmong USA TV, said the dispensary is drawing “people who are coming here and hanging out.” While he doesn’t know for certain that there is a connection, he said someone recently walked away with a 32-inch television that he had in the front of his business when the receptionist was absent.

The shopping center “kind of has a new kind of customer now,” he added.

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Bud’s note: The “loophole” is called federal pre-emption, upon which Fresno’s dispensary ban is based. The wording of the ordinance allows dispensaries to open in areas zoned for medical offices, but only if they comply with state and federal laws. Since marijuana remains illegal under federal law, that clause provides the legal basis for the city’s ban.

Unfortunately for the city, the 2007 ordinance has been upstaged by a 2010 appellate court ruling addressing Anaheim’s dispensary ban, which also relied on federal pre-emption. Citing earlier cases out of Garden Grove and San Diego, the court in Qualified Patients v. City of Anaheim reaffirmed the principle that “The city may not justify its ordinance solely under federal law, nor in doing so invoke federal preemption of state law that may invalidate the city’s ordinance.”

Anaheim’s ordinance is worded very similarly to Fresno’s dispensary ordinance, so collectives like CHRC that had to shut down under Fresno County’s dispensary ban may have concluded their legal standing is more favorable in the city. Anaheim’s ordinance is still in legal limbo after being upheld again by a lower court, but the current appeal involves state law, not federal.

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