By Ryan Hagen Staff Writer
Posted: 06/23/2011 06:20:46 PM PDT

COLTON – The city’s lawyers had hoped that today they could begin fining the president of a medical marijuana collective $1,000 per day for defying a court order to shut down.

Instead, Judge Donald Alvarez – who issued a preliminary injunction in April ordering the dispensary to shut down because it was violating Colton’s ban – said in San Bernardino Superior Court on Thursday that the contempt hearing scheduled for that day was moot.

A court of appeals had delayed Alvarez’s order until it decided whether the city’s ban violates the state constitution.

And medical marijuana bans – in Colton and throughout the state – might be the next thing the court reverses.

In a two-paragraph explanation, the staate’s 4th District Court of Appeal said state law allows medical marijuana dispensaries and that evidence in court has not determined them to be a nuisance.

“Having reviewed the petition, opposition and record, we have concluded that the balance of hardships shown by the evidence favors defendants/appellants, that a substantial issue of law is presented by the appeal, and that we should therefore exercise our discretion to preserve the status quo pending the appeal,” the judges said in nearly identical decisions staying the preliminary injunctions against G3 Holistic and Organic Garden Collective.

Both medical marijuana dispensaries are located in Colton and represented by James DeAguilera, a Redlands-based attorney.

“These decisions would not be issued unless the court of appeals was pretty sure that the cities were violating state laws,” DeAguilera said. “It’s very rare that (a stay) is issued in the court of appeals. The reason they did is that voters, by 53 percent if I recall, passed Proposition 215 making medical marijuana legal and the Legislature passed a lot of laws for how to operate those dispensaries.”

DeAguilera said “chaos in the law” would result if cities, which are creations of the state, could reverse state laws.

But the issue isn’t that clear-cut, especially when federal law prohibits marijuana, said John D. Higginbotham, who represents the city for the law firm Best Best & Krieger.

“As a result, there are complex questions concerning marijuana dispensaries in our courts,” Higginbotham wrote in an e-mail. “There are many cases throughout California addressing the issues and already, several court of appeal decisions have recognized the need for cities and counties to make their own decisions on where marijuana distribution facilities can be located.”

Higginbotham said he expects the court to allow cities to ban dispensaries based on cities’ long-standing power to protect public safety.

Marijuana advocates say there’s no evidence that properly managed dispensaries increase crime.

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