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Friday, Apr 04 2014 04:21 PM

Judge upholds Bakersfield's marijuana dispensary ban

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BY STEVEN MAYER Californian staff writer smayer@bakersfield.com

A Kern County Superior Court judge on Friday rejected a challenge to Bakersfield's ordinance banning medical marijuana dispensaries.

The decision by Judge Kenneth C. Twisselman will allow the city to sue in civil court businesses and locations where medical marijuana is sold or distributed.

Jamie Hall, a Long Beach-based attorney for a group called Concerned Citizens of Bakersfield, argued the ordinance changes the law and the city's practices, thereby making it subject to an environmental review before it may be approved by the court.

The case revolved around that narrow question.

Hall, who communicated with the court from a remote location through speakerphone, argued that the ordinance significantly changes the law, and suggested under the language of the ordinance, people cultivating cannabis in their own homes as part of a cooperative effort or as a group of patients could be subject to a law that purports to target only retail dispensaries.

"There could be 7,000 home cultivation sites as a result of this ordinance," Hall argued. And that, he said, would bring about a significant change to the local environment.

He compared, for example, the 2013 ordinance with the city's 2004 resolution banning dispensaries. But that strategy seemed to backfire when Twisselman pointed out that a resolution is not technically a law.

Associate City Attorney Richard Iger, who represented the city in defending the ordinance, kept his argument simple.

"The city did not change, modify or expand an existing law," he told the judge. "It's not changing anything, therefore there is no change to the environment."

Twisselman ultimately agreed with Iger, ruling that the city has always had land-use powers to abate nuissance actions. The ordinance did not change the law, he said. Instead, it simply made express what has always been implied in the zoning code.

Therefore, the judge concluded, a review under the California Environmental Quality Act was not called for.

Twisselman's decision allows the city to move forward in enforcing the ordinance. The city will first send letters to pot shops in the city.

"If they don't comply, we file in court," Iger said.

Judge Twisselman's decision comes less than two months after a seemingly conflicting ruling in which he found against the county of Kern in a similar case.

Twisselman decided Feb. 14 that an environmental review was required regarding Measure G, the county of Kern's attempt to regulate cannabis dispensaries in unincorporated Kern.

Approved by voters in June 2012, Measure G placed tight restrictions on where medical marijuana dispensaries could open.

But Twisselman's ruling Friday did not conflict with his February ruling, Iger said. The county did change the law, he said, first allowing, then prohibiting dispensaries in various locations.

The city, he said, has always banned dispensaries.

Friday's decision may be subject to appeal.

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