Vol 26. No. 20- Court Upholds City’s Ban On Dispensaries

On August 15, 2011, the City of Anaheim was found to have the legal right to ban medical marijuana dispensaries from the city. Superior Court Judge David Chaffee ruled, in part, 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 case, Qualified Patients Association (QPA) v. City of Anaheim, has 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.

History of the Case

In 2007, the City adopted Ordinance No. 6067, which states: “It shall be unlawful for any person or entity to own, manage, conduct, or operate any Medical Marijuana Dispensary or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any Medical Marijuana Dispensary in the City of Anaheim.” After the Ordinance was adopted, QPA sued the City claiming, among other things, that the ordinance violated the MMPA. The City demurred to the complaint and the Superior Court granted the City’s demurrer. The case then went to the Court of Appeal, which sent it back to the Superior Court for trial.

At the request of Anaheim, 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. At the City’s request, we also 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.

Judge Chaffee’s Decision

Judge Chaffee noted that pursuant to Section 7 of Article IX of the California Constitution, “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws” of California. One such permitted ordinance is that which abates a public nuisance.” California law defines a public nuisance as “one which affects at the same time an entire community or neighborhood, or a considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” The judge then 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. It is important to note that the court also found that “Anaheim’s ordinance does not completely ban medical marijuana distribution; but it does proscribe mass distribution of medical marijuana.”

The court, in a very detailed and in depth analysis, discusses numerous decisions from the California Supreme Court, appellate court decisions, and interpretations of statutes in reaching its conclusions. It analyzes whether the state has fully occupied the field regarding medical marijuana distribution, and why it has not.

The court notes that the MMPA exempts qualified patients and/or primary caregivers from criminal prosecution “solely on the basis of the fact that they have associated collectively or cooperatively to cultivate marijuana for medical purposes. Anaheim’s ordinance targets mass distribution; not communal cultivation.”

The court, however, concludes that one portion of the city’s ordinance does conflict with the general laws of California. Since “the CUA does have the goal of protecting qualified patients and primary caregivers from being subject to criminal sanctions,” that part of the ordinance which imposes criminal sanctions for violating the ordinance, conflicts with that goal. As such, the court ruled that the criminal sanction provision was to be severed from the ordinance.


As noted above, this is a superior court decision and has no precedential value. It is not binding on any other persons or entities beyond those involved in the case. It cannot be relied upon to justify another jurisdiction’s ordinance, but it is obviously important as persuasive argument. The analysis by the court can and would be utilized if other jurisdictions adopted ordinances similar to the Anaheim ordinance, and they were legally challenged. Nonetheless, those cases would still have to be litigated.

In addition, there is no doubt that this will be addressed by the Court of Appeal and, hopefully, the appellate court will follow the logic and conclusions set forth by Judge Chaffee. There are, in addition, other cases pending before courts at this very time and they may or may not reach the same conclusion. What seems to be inevitable is that this issue will need to be decided by the California Supreme Court.

As with all legal issues, we urge that you confer with your agency’s attorney and seek legal advice and guidance on how to address this situation in your own jurisdiction. As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.

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