Vol. 26 No. 23 – Cities May Ban Medical Marijuana Dispensaries But Cannot Permit Them


On October 4, 2011, the Second District Court of Appeal unanimously ruled, in the case of Pack v. Superior Court of Los Angeles County (City of Long Beach), that “the City’s ordinance, which permits and regulates medical marijuana collectives rather than merely decriminalizing specific acts, is preempted by federal law.”

The Court held that “California’s statutes are not preempted by federal law, as they seek only to decriminalize certain conduct for the purposes of state law.”  The state statute, the Medical Marijuana Program Act (MMPA), which codified Proposition 215 the Compassionate Use Act (CUA), “simply decriminalizes for the purposes of state law certain conduct related to medical marijuana, [and] is not preempted by the CSA (Controlled Substances Act).”

However, the Court noted, the “City of Long Beach has enacted a comprehensive regulatory scheme by which medical marijuana collectives within the City are governed” and, to the extent that the City’s ordinance permits collectives, it is preempted by federal law.


The Pack court acknowledged that “we disagree with our colleagues who, in two other appellate opinions, have implied that medical marijuana laws might not pose an obstacle to the accomplishment of the purposes of the federal CSA because the purpose of the federal CSA is to combat recreational drug use, not regulate a state’s medical practices.”

The Court, however, noted that “Congress has concluded that marijuana has no accepted medical use at all. . . .  Thus, to Congress, all use of marijuana is recreational drug use, the combating of which is admittedly the core purpose of the federal CSA.”  Therefore, a city’s “ordinance which establishes a permit scheme for medical marijuana collectives stands as an obstacle to the accomplishment of this purpose.”  (Emphasis in original.)

The Court also finds that Proposition 215 does not, in and of itself, violate federal law.  “The CUA simply decriminalizes (under state law) the possession and cultivation of medical marijuana; it does not attempt to authorize the possession and cultivation of the drug.  The City’s ordinance, however, goes beyond decriminalization into authorization.” (Emphasis added.)

“A law which ‘authorizes [individuals] to engage in conduct that the federal Act forbids . . . ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ and is therefore preempted.”


Cities, especially those within the 2d District Court of Appeal, must review their ordinances to determine whether they are “permitting” medical marijuana dispensaries.  If they are, it appears that this decision has concluded that such ordinances are in conflict with federal law and the dispensaries operating under such ordinances, are prohibited.  Ordinances which ban all such dispensaries are in compliance with federal law and, therefore, not preempted.

The firm of JONES & MAYER has been involved in many of the cases dealing with medical marijuana and has generated information for many years as courts rendered decisions.  For example, in June, 2005 we published a Client Alert Memo, following the decision by the U.S. Supreme Court in the case of Gonzales v. Raich, and pointed out that “Raich supports a jurisdiction’s decision to prohibit such centers [dispensaries], since allowing them would require “permitting” a venture which violates federal law.”

Furthermore, in July, 2007, we published another Alert, after the federal Department of Justice sent letters to property owners informing them that renting to marijuana dispensaries could result in the forfeiture of those properties.  We noted that “when cities issue zoning regulations which permit the establishment of such dispensaries, even though regulating locations to commercial or industrial areas, such zoning regulations are in violation of California law.  Government Code Section 37100 prohibits local governments from promulgating ordinances which are in violation of the U.S. Constitution or state or federal law.”

In October, 2008, we alerted our clients to the fact that “the California Supreme Court unanimously denied an application to review the case of San Diego County v. San Diego NORML, which had held, in part, that Proposition 215 was not unconstitutional merely because it required counties to issue identification cards to individuals who have a doctor’s recommendation to use marijuana for medical purposes.”

We agreed that Prop 215 was not unconstitutional.  We pointed out that “all Proposition 215, and its enabling legislation, accomplished was to declare that “qualified users” of medical marijuana, and/or their “caregivers,” would not be prosecuted under state law, for the cultivation, possession, transfer or use of the drug.”

Finally, in May, 2009, we issued an Alert, after the U.S. Supreme Court denied a petition to review the case of San Diego County v. San Diego NORML, and reiterated what we had stated previously that “cities may not authorize the operation of dispensaries, or even cooperatives or collectives, for the purpose of cultivating or distributing marijuana for medical purposes.  Government Code 37100 states that a city’s ‘… legislative body may pass ordinances not in conflict with the Constitution and laws of the State or the United States.’

As with all legal issues, it is imperative that you confer with your agency’s attorney before taking steps based on this court’s decision.  As always, if you wish to discuss the case in greater detail, please feel free to contact me at (714) 446 -1400 or via e-mail at mjm@jones-mayer.com.

The Court of Appeal, in Pack, appears to validate virtually all of the information we set forth in the Client Alerts noted above.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.