Vol. 26 No. 28 – Cities Win Right To Ban Dispensaries


Several significant state court decisions have been issued by the California Courts of Appeal over the past few weeks dealing with the issues of medical marijuana.  On October 4, 2011, the Second District Court of Appeal ruled, in the case of Pack v. Superior Court of Los Angeles County (City of Long Beach), that cities can ban medical marijuana dispensaries but cannot authorize them by issuing business licenses and permits.

As we noted in our Client Alert, Vol. 26, No. 23, published on 10/12/11, the Pack Court found 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.”  The Court noted further that, 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 decision appears to have created concern amongst those who still want to permit and regulate such facilities.  Despite that concern, the federal Department of Justice is increasing its efforts to shut down dispensaries by, among other things, notifying the owners of buildings renting to dispensaries, that they face the potential of the federal government seizing those properties since the owners are allowing tenants to engage in activity prohibited by federal law.

Two New Decisions

The Fourth District Court of Appeal issued two opinions on November 9, 2011 upholding the right of cities and counties to ban dispensaries, ruling that such action is not prohibited by state law.

In cases arising out of the City of Riverside (involving the Inland Empire Patient’s Health and Wellness Center) and the City of Upland (involving the G3 Holistic collective), the Court reinforced the legal right of cities to ban dispensaries.  The Riverside case is a published decision, whereas the Upland case is not.

It is likely that in one or both of these cases, the dispensaries will petition the California Supreme Court for review.  The City of Long Beach has already petitioned the Court for review since it is the City’s position that, as the City Attorney is quoted as saying, “(t)here is no clarity and consistency.”

In the Riverside case, the Court of Appeal said that “the key issue in determining whether Riverside’s zoning ordinance is legally enforceable is whether state medical marijuana statutes, such as the CUA and MMP, preempt Riverside’s zoning ordinance banning MMD’s [medical marijuana dispensaries].  If the local ordinance is not preempted by state law, the ordinance is valid and enforceable.”  The Court then held that such zoning ordinances arenot preempted by the state law.

The Court notes that the “CUA is narrow in scope.  It provides medical marijuana users and care providers with limited criminal immunity for use, cultivation, and possession of medical marijuana.  The CUA does not create a constitutional right to obtain marijuana, or allow the sale or nonprofit distribution of marijuana by medical marijuana cooperatives.”

Furthermore, states the Court, “the CUA and MMP do not expressly mandate that MMD’s shall be permitted within every city and county, nor do the CUA and MMP prohibit cities and counties from banning MMD’s.”  Additionally, “the MMP does not restrict or usurp in any way the police power of local governments to enact zoning and land use regulations prohibiting MMD’s.”


During this past year we have seen much activity involving medical marijuana and, in particular, dispensaries and industrial size marijuana cultivation.

JONES & MAYER has issued several Client Alert Memos addressing these issues including, “U.S. Attorney Warns Oakland About Allowing Large Scale Cultivation of Marijuana” (2/4/11); “U.S. Attorney Warns Cities Against Permitting Industrial Marijuana Cultivation Facilities” (7/26/11); “Court Upholds City’s Ban on Dispensaries” (8/22/11); and “Cities May Ban Medical Marijuana Dispensaries But Cannot Permit Them” (10/12/11).

JONES & MAYER has been involved in successfully prosecuting several cases, for cities in which we serve as the City Attorney, which resulted in the shutting of illegally operated dispensaries.  We have also been involved in many of the appellate cases taken to the California Courts of Appeal, the California Supreme Court, and the U.S. Supreme Court as counsel to the party or as counsel to associations submitting amicus curiae briefs supporting the efforts of the various cities to ban such operations.

As it stands right now, the Pack decision is unchallenged and clearly states that cities and counties cannot authorize that which is prohibited by federal law.   And now, the

Riverside decision reinforces the rights of cities and counties to impose outright bans on dispensaries using their zoning regulations.

As always, seeking the advice and guidance of an agency’s legal counsel is imperative, especially when confronted with such a volatile area of the law.  If you wish to discuss these cases in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail atmjm@jones-mayer.com.