Vol. 25 No. 15- Qualified Patients V. Anaheim Remanded For Further Hearings

On August 18, 2010, California’s Fourth District Court of Appeal finally acted in the case ofQualified Patients Association v. City of Anaheim, by remanding it back to the Superior Court to allow the plaintiffs to pursue their motion for declaratory relief.

The Court ruled that the trial judge should not have granted the City’s demurrer to the plaintiffs’ complaint, which alleged that the City’s ban on dispensaries was preempted by state laws, both the Compassionate Use Act (CUA) and the Medical Marijuana Program Act (MMPA).  The ordinance makes it a misdemeanor for a person to “own, manage, conduct, or operate any Medical Marijuana Dispensary or to participate as an employee, contractor, agent or volunteer …” in any dispensary.

The plaintiffs also alleged that the City’s ordinance violated the Unruh Civil Rights Act by discriminating against medical marijuana users by denying them access to medical marijuana dispensaries.  On that issue, however, the Court of Appeal ruled in favor of the city, stating that the Unruh Act did not apply to legislative bodies but only to “business establishments.”

Long Awaited Decision

The Court spent an extensive amount of time on this case taking almost a full year to write its opinion.  After the first ninety days, on the last day before a decision was due,  the Court ordered the parties, and amici curiae, to submit supplemental briefs on a particular legal issue.

Jones & Mayer submitted an amicus brief from the California State Sheriffs’ Association, the California Police Chiefs’ Association and the California Peace Officers’ Association supporting the City of Anaheim.

It appears obvious that this has been a difficult decision for the Court but it has resulted in no definitive answer to the question of whether a city can ban such facilities

Unanswered Questions

The Court held that too many questions regarding the operation of the facility still needed to be answered.  The Court found that “factual issues that we may not resolve on appeal (of the demurrer) remain, including whether plaintiffs qualify as primary caregivers or otherwise for the MMPA’s asserted protection against an ordinance imposing criminal punishment for operating a dispensary, and the manner in which plaintiffs intend to conduct their medical marijuana activities.”

The Court stated that “we have precious few facts concerning the plaintiffs’ planned medical marijuana activities.  At demurrer, on the few facts known about the manner in which QPA intends to operate, we cannot say plaintiffs have failed to state a cause of action to obtain declaratory judgment on whether the MMPA preempts the city’s ordinance.”

The Court further stated that “we express no opinion on the merits of the parties’ positions, but instead remand to allow the parties and the trial court to address these issues in further proceedings, including summary judgment or trial, if triable issues of fact remain unresolved.”

CUA and MMPA Do Not Violate Federal Law

One thing the Court did find was that neither the CUA nor the MMPA violate federal law since “California’s decision in the CUA and the MMPA to decriminalize for purposes of state law, certain conduct related to medical marijuana does nothing to ‘override’ or attempt to override federal law, which remains in force.”  (Emphasis in original.)

This point of law has been highlighted by Jones & Mayer on numerous occasions, for example, see our Client Alert Memo entitled, “California’s Medical Marijuana ID Card Program Is Not Unconstitutional,” published August 4, 2008.

How This Affects Your Agency

Unfortunately, this decision merely puts off a definitive answer regarding whether California courts will support a city if it wishes to ban medical marijuana dispensaries, cooperatives or collectives.  It will remain to be seen if the Qualified Patients Association is able to prove that it meets the requirements set forth in the MMPA and articulated in the Attorney General’s Guidelines.

Among other things, to be able to provide medical marijuana to others it must be proven that the provider is the “primary caregiver” for the qualified patient. According to the California Supreme Court, in People v. Mentch, (2008) 45 Cal.4th 274, that requires a showing that “he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana.”

In addition, the Mentch court said, “a patient may not confer primary caregiver status merely by designating a person as a primary caregiver, nor does a person qualify simply by providing medical marijuana to the patient.  Rather, the person must show a caretaking relationship directed at the core survival needs of a seriously ill patient, not just a single pharmaceutical need.”  As such, local agencies can still require facilities which are dispensing “medical marijuana” to prove they meet the definition of a primary caregiver.