ATTITUDE CHANGE TOWARDS MEDICAL MARIJUANA?
By: Martin J. Mayer, General Counsel
California State Sheriffs’ Association
The state of California has been attempting to deal with the advent of medical marijuana since Proposition 215 [Compassionate Use Act (CUA)] was passed by the public many years ago. The original intent behind the initiative was to enable persons who were seriously ill, and for whom the use of marijuana would be beneficial, to have access to marijuana without being charged with violating the law.
Specifically, the proposition stated that its purpose was “(t)o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes . . . . ” As such, it exempted, from criminal prosecution, those who were “qualified patients” and/or “primary caregivers” and enabled them to cultivate, use, possess, give, etc. marijuana for medical use based on the “recommendation” of their doctor.
A few years ago, the state experienced a surge in the opening of medical marijuana “dispensaries.” These dispensaries, predominantly storefront operations, started to appear in cities throughout the state in incredibly large numbers. In addition, doctors advertised in newspapers, on the internet, and on billboards stating that they would provide the necessary recommendation following an “examination” to determine if one were a “qualified patient.”
Federal Intervention
In addition to the proliferation of dispensaries, it appeared that cities were going to allow the development of “industrial” size marijuana cultivation facilities. The City of Oakland, for example, in 2010, had issued permits for the development of four such complexes. It was only after concerns about possible prosecution by the federal government that the permits were temporarily suspended.
Following that, the City of Chico, also considered issuing permits for permitting such industrial size facilities. However, in a letter dated July 1, 2011, to Mayor Ann Schwab of the City of Chico, Benjamin B. Wagner, U.S. Attorney for the Eastern District of California, expressed his concern that the City “is considering an ordinance which would authorize permits for two medical marijuana cultivation facilities, each up to 10,000 square feet.”
Mr. Wagner noted that, in prior memoranda from the Department of Justice (DOJ), the federal government said that it would “not focus its limited resources on prosecuting seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law . . . .” However, Mr. Wagner stated that the Department of Justice (DOJ) “will enforce the CSA [Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”
It should be noted that there is no exception made, under federal law, for the cultivation of marijuana for “medical” purposes. As such, all cultivation is in violation of federal law, unless it is part of a federally authorized program. In addition, in the opinion of many, these large scale marijuana “grows” are not permitted even under California law. California law allows only the “qualified patient” and/or the “primary caregiver” to cultivate marijuana for medical purposes. Unless the “grower” can prove such status, he or she is not exempt from prosecution under California law, nor under federal law.
The U.S. Attorney’s letter also points out that “the Department maintains the authority to pursue criminal or civil actions for any CSA violations whenever the Department determines that such legal action is warranted.” These actions include, but are not limited to, prosecuting the illegal manufacturing or distributing of marijuana; the opening, leasing, renting or using property for the manufacturing, storing or distribution of marijuana; the use of civil injunctions; and the forfeiture of drug proceeds and/or property traceable to drug violations.
The letter concludes by noting that “the Department is concerned about the proposed ordinance in the City of Chico, as it would authorize conduct contrary to federal law and threatens the federal government’s efforts to regulate the possession, manufacturing, and trafficking of controlled substances. Individuals who elect to operate industrial marijuana cultivation facilities will be doing so in violation of federal law.” Mr. Wagner points out that those who “knowingly facilitate such industrial cultivation activities, including property owners, landlords, and financiers, should also know that their conduct violates federal law.”
Superior Court Upholds Anaheim’s Ban On Dispensaries
We also appear to be seeing changes in attitude by state courts, although it’s only the beginning. It is necessary that the appellate courts weigh in on the issue before the decisions have the “force of law.”
However, on August 15, 2011, Superior Court Judge David Chaffee ruled, in Qualified Patients Association (QPA) v. City of Anaheim, that the City of Anaheim has the legal right to ban medical marijuana dispensaries from the city. The court said that “it is readily apparent that the statute [Medical Marijuana Program Act (MMPA)] does not protect mass distribution [of medical marijuana] from designation by a local government entity as a nuisance. There is nothing in the MMPA that contradicts Anaheim’s ordinance.”
The judge held that “[i]t is clear that Anaheim has the power to enact its ordinance abating the nuisance per se of “medical marijuana dispensaries,” provided that it is not preempted by existing California law.” The court then concludes that there is no state law in place which would preempt a city from establishing this type of ordinance.
This case had gone from the Superior Court to the Court of Appeal and back to the Superior Court over the past four years. It has been closely watched by cities and counties throughout the state to see if a court would uphold their right to ban dispensaries from their communities. Many jurisdictions permit dispensaries, but regulate them as to number and location. The issue in QPA v. Anaheim, however, focuses on the total banning of such facilities. It is, obviously, important to note that this decision is at the trial level, it is binding only on the parties involved, and QPA has already stated that it will appeal the decision.
At the City’s request, the firm of JONES & MAYER submitted an amicus curiae brief from the California Police Chiefs’ Association (CPCA), the California State Sheriffs’ Association (CSSA), and the California Peace Officers’ Association (CPOA), supporting the City’s right to establish such a ban. Also at the City’s request, we presented oral argument to the Court of Appeal, focusing on the increased obligations and burdens on law enforcement to deal with problems created by the proliferation of dispensaries.
It is, again, important to note that this decision is at the trial level, it is binding only on the parties involved, and QPA has already stated that it will appeal the decision.
Superior Court Grants Costa Mesa’s Request for a Preliminary Injunction
On September 1, 2011, in the case of Costa Mesa v. D’Alessio Investments, et al, Superior Court Judge Chaffee held that a zoning ordinance adopted by Costa Mesa, which prohibits medical marijuana dispensaries in all zones of the City, was enforceable and did not conflict with the Medical Marijuana Program Act (MMPA). The firm of JONES & MAYER serves as city attorney to Costa Mesa and was counsel to the City in the petition for a preliminary injunction.
The court noted that “(b)y this action the City of Costa Mesa seeks injunctive relief to prohibit the continued operation of the defendant medical marijuana dispensaries within the jurisdictional boundary of the City, and in particular upon property owned and operated by Defendants D’Alessio.”
The Costa Mesa Municipal Code states that “medical marijuana dispensaries, as defined by CMMC section 13-6, are not a permitted use anywhere within the City of Costa Mesa.” The court found that “(t)he City’s ordinances do not, however, impose a total ban on medical marijuana; instead CMMC §13-16 defines a dispensary as “[a] facility or location where medical marijuana is cultivated or by any other means made available to and/or distributed by or to three or more of the following: a primary caregiver, a qualified patient or a person with an identification card in strict accordance with State Health and Safety Code Sections 11362.5 et seq. and 11362.7 et seq.”
The court reinforced the right of cities to use zoning ordinances to regulate various types of businesses. “Zoning authority is an essential power of the government. Beverly Oil Co. v. Los Angeles, 40 Cal. 2d 552, 557 (1953). Under CMMC § 13-30, there are no permitted zones for medical marijuana dispensaries as defined by CMMC § 13-6.”
The defendants claimed that the City issued them a business license and, therefore, they have been approved to operate their facility. There was a dispute over whether parts of the application were misleading but that did not seem to impress the court which stated, “(r)egardless of whether Defendants acquired a business license with misleading or accurate statements, the operation of the dispensaries violates zoning ordinances and their uncontested existence constitutes a nuisance per se.”
“Defendants contend that the CUA and MMP preempt Costa Mesa’s ordinance, because the ordinance directly contradicts, and falls into an area of law fully occupied by the CUA and the MMP. However, the CUA and MMP were never intended to address local governmental authority over regulation of businesses and nuisances.”
In addition, the court held that the “MMP immunizes certain individuals from criminal sanctions under some circumstances, but that is limited; the protected activities can be cumulated in such a way to constitute a nuisance subject to the loss of that protection. In the instant case, when those immunized individuals collect together to cultivate and distribute medicinal marijuana they create a nuisance by providing the mass distribution of medicinal marijuana. Because the MMP does not preempt city authority to regulate businesses and land use, or to locally determine nuisances, Costa Mesa’s ordinance is valid.”
Conclusion
It may be too soon to tell but, it appears, that the federal government is beginning to recognize that state laws which allow the use of marijuana for medical purposes can be, and are being, abused. Initially, there appeared to be a reluctance on the part of the federal government to use scarce resources to enforce the CSA in states which permit use of medical marijuana, but Mr. Wagner’s letter helps clarify the point. Although it appears that DOJ will still not expend resources prosecuting seriously ill individuals, the U.S. government will not turn a blind eye to blatant violations of federal law, such as large scale cultivation operations.
Also, we now see, in the two cases referenced above, at least one California judge reinforcing the right of cities to use their zoning laws to regulate, and/or ban, marijuana dispensaries. In both the Anaheim and Costa Mesa cases, the courts held that the right of cities to enforce zoning prohibitions does not conflict with the state law since it doesn’t totally ban access to medical marijuana. The ban is on dispensaries – not on medical marijuana.
As noted above, these are superior court decisions and have no precedential value. They are not binding on any persons or entities beyond those involved in the cases. They cannot be relied upon to justify another jurisdiction’s ordinance, but they are, obviously, important as persuasive argument. The analysis by the court, in both cases, can and would be argued if other jurisdictions adopted ordinances similar to the Anaheim or Costa Mesa ordinance, and they were legally challenged.
As in all matters involving interpretation of law, it is imperative that you confer with your city attorney or county counsel for legal advice and guidance.
Martin J. Mayer is a name partner in the public sector law firm of JONES & MAYER, and has served as the CSSA General Counsel for more than 25 years.