CALIFORNIA SUPREME COURT RULES CITIES/COUNTIES CAN BAN DISPENSARIES
On May 5, 2013, the California Supreme Court put to rest a controversy raging around the scope of the Compassionate Use Act, Cal. Health & Saf. Code § 11362.5 (the “CUA”), and the Medical Marijuana Program Act, Cal. Health & Saf. Code § 11362.7 et seq. (the “MMP”).[1] The Supreme Court, in a unanimous decision, in the case of City of Riverside v. Inland Empire Patients’ Health and Wellness Center, Inc., 2013 Cal. LEXIS 4003, held thatlocal governments may ban medical marijuana dispensaries as they see fit.
The Court concluded that “neither the CUA nor the MMP expressly or impliedly preempts the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by such nuisance actions.”
Facts
The City of Riverside’s zoning code prohibits the operation of dispensaries, designates dispensaries as public nuisances and, further, prohibits any use that constitutes a violation of State or federal law. Inland Empire asserted that the CUA and the MMP and, specifically, Section 11362.775 (quoted below), preempted the City from enacting a complete ban on dispensaries.
The dispensary argued that the City could not ban that which was authorized by state law. The trial court found no state law preemption and granted the City’s preliminary injunction and Inland Empire appealed. The Court of Appeal upheld the injunction, and Inland Empire sought review with the Supreme Court.
Despite the controversy, the Court’s analysis was straight forward, and fully consistent with the arguments made all across the State by cities and counties. Those arguments are that both the CUA and the MMP are limited statutes that only provide protection from criminal prosecution of state laws for a narrowly defined group of people and for narrowly defined conduct relating to the medical use of marijuana, and nothing further.
The firm of JONES & MAYER, as counsel for the California States Sheriffs Association, the California Police Chiefs’ Association and the California Peace Officers’ Association filed anamicus curiae brief supporting the City of Riverside.
The Court’s Rationale
The Court began its opinion with a recitation of the law governing marijuana, including federal law (which prohibits the use of marijuana under any circumstances). The Court acknowledged that the cultivation, harvesting, processing, possessing for sale, transporting and furnishing of marijuana continues to be subject to criminal penalties under California law. The CUA (enacted by initiative in 1996) provided protection to a qualified patient, or the patient’s qualified primary caregiver, from prosecution under California law, for possession and cultivation of marijuana.
The MMP, enacted originally in 2004 and later amended, was intended, among other things, to “[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” Accordingly, the MMP provides that “[q]ualified patients . . . and the designated primary caregivers of qualified patients . . ., who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctionsunder [s]ection 11357 [possession], 11358 [cultivation, harvesting, and processing], 11359 [possession for sale], 11360 [transportation, sale, furnishing, or administration], 11366 [maintenance of place for purpose of unlawful sale, use, or furnishing], 11366.5 [making place available for purpose of unlawful manufacture, storage, or distribution], or 11570 [place used for unlawful sale, serving, storage, manufacture, or furnishing as statutory nuisance], § 11362.775.” (Italics added).
The Court recognized that, in the area of zoning, over which local governments have traditionally exercised control, “California courts will presume, absent a clear indication of preemptive intent from the Legislature, that such regulation is not preempted by state statute.”
The Court then analyzed the goals of the CUA and the MMP, and concluded that the operative provisions of these statutes took small, measured, steps to achieve the statutes’ goals. The MMP, in addition to the immunities from criminal prosecution for qualified patients and their designated primary caregivers, provided for identification cards to be issued by the counties to patients and their primary caregivers, and would protect the holder of the identification card from arrest.
The Court’s earlier decisions analyzing the scope of the CUA “stressed the narrow reach of these statutes.” For example, in Ross v. Ragingwire, the Supreme Court held that the CUA did not compel an employer to provide reasonable accommodations for an employee’s use of medical marijuana.
In People v. Mentch, the Court held that a “‘primary caregiver’ must prove, at a minimum, that he or she consistently provided care in such areas as housing, health, and safety, independent of any help with medical marijuana, and undertook such general caregiving duties before assuming responsibility for assisting with medical marijuana.”
The Mentch Court interpreted the scope of the protections provided by Section 11362.765, which Mentch invoked in his defense and which has language very similar to Section 11362.775, which was invoked by Inland Empire.
In Mentch, the Supreme Court said that “the immunities conveyed by section 11362.765 have three defining characteristics: (1) they each apply only to a specific group of people; (2) they each apply only to a specific range of conduct; and (3) they each apply only against a specific set of laws.”
The Court extended this narrow interpretation to the immunities provided by Section 11363.775 regarding a place for the sale of medical marijuana.
State Law vs. Local Zoning Laws
Having established the narrow reach of the medical marijuana statues, the Court went on to analyze whether the City’s ordinance was preempted by the statutes. The Court found that neither the CUA, nor the MMP, created “a broad right of access to medical marijuana without hindrance or inconvenience,” nor do the statutes create any guarantee regarding the availability of locations where medical marijuana may be provided, nor do the statutes have any express language requiring local zoning laws “to accommodate the cooperative or collective cultivation and distribution of medical marijuana.”
The Court also found that the zoning law did not duplicate state law; nor that either statute “requires the cooperative or collective cultivation and distribution of medical marijuana . . . .” Furthermore, the Court found no attempt by the Legislature to fully occupy the field of regulation such as to evince an intent to preempt local regulation.
The Court rejected Inland Empire’s argument that the purposes of the CUA and the MMP indicate that the availability of marijuana for medical uses is an issue of statewide importance. Rather, the Court was persuaded that “significant local interests [relating to the secondary effects or appropriateness of dispensaries in certain localities] may vary from jurisdiction to jurisdiction,” thus further supporting the presumption against preemption.
Inland Empire also argued that the MMP prevents nuisance remedies because it provides a defense against the application of Section 11570 (commonly known as the drug-house abatement law). This exclusion, argued Inland Empire, is indicative that the Legislature intended to preclude public nuisance abatement against collectives and cooperatives by both state and local authorities.
The Court made short shrift of this argument and stated that “(n)uisance law is not defined exclusively by what the state makes subject to, or exempt from, its own nuisance statutes. . . . In section 11362.775, the MMP merely removes state law criminal and nuisance sanctions from the conduct described therein. By this means, the MMP has signaled that the statedeclines to regard the described acts as nuisances or criminal violations, and that the state’senforcement mechanisms will thus not be available against these acts. Accordingly, localities in California are left free to accommodate such conduct, if they choose, free of state interference.” (Italics in original).
While the Court recognized that the Legislature or the electorate could change the state of the law, it ended its opinion with a clear and unanimous statement in favor of local jurisdictions: “the CUA and the MMP are careful and limited forays into the subject of medical marijuana, aimed at striking a delicate balance in an area that remains controversial, and involves sensitivity in federal-state relations. We must take these laws as we find them, and their purposes and provisions are modest. They remove state-level criminal and civil sanctions from specified medical marijuana activities, but they do not establish a comprehensive state system of legalized medical marijuana; or grant a “right” of convenient access to marijuana for medicinal use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local accommodation of medical marijuana cooperatives, collectives, or dispensaries.”
HOW THIS AFFECTS YOUR AGENCY
The decision of whether or not a city or county can ban marijuana dispensaries has now been answered definitively – as of now, it is up to the local jurisdiction. The Supreme Court’s decision has recognized that the question is one of local police power and the right to establish zoning regulations in accordance with each jurisdiction’s needs and desires.
The Court also noted that “nothing prevents future efforts by the Legislature, or by the People, to adopt a different approach.” As such, law enforcement and others who oppose the establishment of dispensaries must be aware of this and remain diligent.
The Court held that neither the CUA, nor the MMP, created “a broad right to use marijuana without hindrance or inconvenience, or to dispense marijuana without regard to local zoning and business licensing laws.”
Furthermore, “the CUA expressly states that it does not preclude legislation prohibiting conduct that endangers others, and the MMP explicitly provides that it does not prevent a local jurisdiction from adopting and enforcing laws that are consistent with its provisions.”
The Court also recognized that different jurisdictions have different needs and limitations. Depending on the jurisdiction, “medical marijuana may pose a danger of increased crime, congestion, blight, and drug abuse,and the extent of this danger may vary widely from community to community. Thus, while some counties and cities might consider themselves well suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens.”
Obviously, the zoning decisions of any community are made by their elected officials and not by law enforcement. However, providing those officials with reasoned, documented and accurate information about the impact dispensaries (or, as another example, liquor stores) will have from the perspective of crime and/or public nuisance, is an important role for law enforcement to fulfill.
As with all legal issues it is important to seek advice and guidance from your agency’s counsel. However, and as always, if you wish to discuss this case in greater detail, feel free to contact me or Elena Gerli at (714) 446 – 1400 or via email at mjm@jones-mayer.com oreqg@jones-mayer.com.
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.
[1] All further statutory references are to the California Health & Safety Code, unless otherwise indicated.