CALIFORNIA SUPREME COURT HEARS ARGUMENTS REGARDING MARIJUANA DISPENSARIES
The conflicting opinions from various California Courts of Appeal, regarding the authority of cities and counties to ban medical marijuana dispensaries, will, hopefully, be put to rest shortly. On February 5, 2013, the California Supreme Court heard oral argument in the case of the City of Riverside v. Inland Empire Health & Wellness Center, Inc. which resulted from the Court of Appeal upholding the City’s ban on all such dispensaries.
The firm of JONES & MAYER, as counsel to the California Police Chiefs’ Association (CPCA), the California State Sheriffs’ Association (CSSA), and the California Peace Officers’ Association (CPOA) drafted and submitted an amicus curiae brief to the Supreme Court arguing that law enforcement’s position is that dispensaries are illegal under both state and federal law. Nonetheless, recognizing that the Supreme Court might disagree that they are illegal under state law, we argued that, at the very least, the Court must find that local governments retain the authority to totally ban dispensaries, if that’s their choice.
Up to that point, six different appellate court decisions addressing this issue had been published. In four of the cases, the courts ruled that local governments could bandispensaries; in a fifth case, the court ruled that local governments could not bandispensaries, since it was preempted by state law; and, in a sixth case, an appellate court ruled that local government could not ban dispensaries but, to be lawful, the dispensary had to cultivate the marijuana on site.
Ironically, the day after the Supreme Court heard oral argument, still another appellate court decision was published. The 3d district Court of Appeal held, in the case of Browne v. County of Tehama, (2/6/13) 2013 DAR 1706, that the County’s regulations did not consist of an outright ban on all dispensaries and, therefore, was constitutional. The court stated that the California Constitution, Article XI, sec. 7 gives authority to “a county or city . . . to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”
The petitioners argued that the Tehama County ordinance was in conflict with the Compassionate Use Act (CUA). However, the court held that the Medical Marijuana Program Act (MMP) “does not ‘prevent a city or other local governing body from adopting or enforcing law consistent with this article.’
A very recent amendment of the MMP . . . expressly permits adoption and enforcement of ‘local ordinances that regulate the location, operation or establishment of a medical marijuana cooperative or collective.”
Supreme Court’s Issues
Six of the seven members of the Court seemed to focus on (1) the fact that the CUA and the MMPA provided limited protection from the state criminally prosecuting qualified patients and/or primary care givers for cultivating, possessing, transporting, marijuana for medical use and (2) the City of Riverside was imposing a civil restriction on the dispensary, namely a zoning restriction. Justice Goodwin Lui observed that, although the law protects medical marijuana patients from criminal prosecution by the state, the law “says nothing about immunity from local sanctions.”
Questions and comments from members of the Court emphasized that the California Constitution, as stated above, confers local governments with the authority to make regulations to protect the health and safety of its residents. The City of Riverside argued that its ban on dispensaries was imposed pursuant to those constitutional powers.
Several justices commented that, if the Legislature wanted to prevent local governments from banning dispensaries, it could have so stated – but it did not. Justice Marvin Baxter asked, “If the Legislature wanted to prevent localities from banning dispensaries, why didn’t they say so expressly?” The attorney for the dispensary argued that the law states that its aim is to promote uniform application of medical marijuana laws throughout California and, therefore, individual localities must be consistent in applying the law. As such, allowing each jurisdiction to decide if it will ban the dispensaries would be contrary to the consistent application of the law.
Justice Lui stated that, nonetheless, individual jurisdictions could, even according to the petitioner, apply regulations short of a ban, but those regulations could be so severe as to effectively ban the dispensaries. When Justice Lui asked counsel for the petitioners if he “would have the courts get in the business of examining . . . each of these regulations,” counsel’s response was “yes.”
HOW THIS AFFECTS YOUR AGENCY
Pending the decision by the California Supreme Court, the law remains as it has been – convoluted and confusing. The majority of court of appeal decisions, up to this point, support a local government’s decision to ban dispensaries, if that’s their desire. But, it must be recognized that others say a ban is not permitted.
The Supreme Court has ninety (90) days to publish a decision and, at this time, all we can do is wait. Once the decision is rendered, and assuming it is permissive, meaning it states that local jurisdictions can ban dispensaries – but are not obligated to do so – then each city and county will have to determine what they want to do.
It is obvious that, when the Court renders its decision, seeking advice and guidance from legal counsel becomes imperative. As always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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