An attorney representing three cooperatives in the city has filed a petition for review and an application for a stay with the state Supreme Court in San Francisco.
The city shut down the cooperatives because its zoning ordinance does not allow such facilities to operate.
G3 Holistic, Upland Herbal Patient Cooperative and Old World Solutions were shut down Aug. 13 after a preliminary injunction was awarded to the city by Judge Barry Plotkin at West Valley Superior Court in Rancho Cucamonga.
"The Court of Appeal declined summarily so now they're taking another bite at the apple, so to speak, seeking the Supreme Court opinion," Upland City Attorney William Curley said. "We're feeling pretty confident the court would uphold Judge Plotkin and his position, but certainly we'll see. It's certainly their right to seek the high level of review."
A request similar to the one sent to the state Supreme Court has been rejected by the Court of Appeal in Riverside.
"We have no ruling and we're hoping the Supreme Court will get involved," said Roger Jon Diamond, the attorney representing the three cooperatives. "It's difficult to get the attention of the Supreme Court because they're busy with a lot of cases, and they ordinarily don't like to take cases until there's been a few decisions by a Court of Appeal."
Diamond filed a petition for a stay with the Court of Appeal in Riverside, but it was denied, which led to the Supreme Court filing.
"The Court of Appeal, without giving any reason and with no explanation, denied our petition," Diamond said. "That order from the Court of Appeal filed Sept. 9 is what we're challenging in the Supreme Court."
Plotkin granted the injunction to the city after an opinion was made by an appeals court in Santa Ana regarding a similar case in Anaheim.
The case involved an Anaheim-based cooperative - Qualified Patients Association - that had sued the city of Anaheim in 2007. The city had attempted to implement an ordinance banning all dispensaries.
A dispensary is a for-profit entity that provides medical marijuana to qualified patients. A cooperative is a nonprofit that provides medical marijuana in a shop-like setting.
The opinion, published Aug. 18, was expected to address whether cities have the right to ban cooperatives, but the court ordered that part back to trial court for more hearings.
However, the court determined that California's Compassionate Use Act of 1996, which decriminalized medical marijuana, trumps federal law when cities attempt to ban dispensaries based on federal law. Federal law considers growing and using marijuana to be illegal. A footnote in the ruling went against an argument used by Anaheim attorneys.
The city of Upland relied on the same cases to argue for a preliminary injunction on the cooperatives.
"All of those that are representing cities or are on our side of the fence, so to speak, don't see that the Qualified Patients' case did anything to alter the status quo," Curley said. "Those in favor of the marijuana vending read into the footnotes and see a whole bunch of things that they cling to to say they're right."
Officials from the cooperatives announced they may present settlement terms to the city. Curley said he has not seen the terms and could not comment on them.
But, he said, the city does not intend to stop enforcing its ordinance.
Cooperatives "are prohibited. There's no middle ground, Curley said. "So if we have a proposal that says `Let us be open every other day,' there is no middle ground other than `you're not allowed.' I'm not sure what the proposal is, but, if and when we get it, we'll fairly look at it."
Officials from the cooperatives are also gathering signatures for a petition that could bring the issue up for vote in Upland. They will need about 3,500 signatures from registered voters in the city to get a measure on a ballot that would ask whether cooperatives can operate in the city under certain guidelines.
"The city is spending a lot of money fighting," Diamond said. "I don't know what their hang-up is. I mean, it seems to me that it is a crime not to allow someone undergoing chemotherapy whose nauseous, whose doctor recommends marijuana - it's a crime for the city to say you can't do it here in Upland."
Source: Inland Valley Daily Bulletin
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