• California Supreme Court Takes Up Issue of Local Regulation of Medical Marijuana Dispensaries
  • January 26, 2012 | Author: Mona G. Ebrahimi
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • The justices of the California Supreme Court recently agreed to hear several cases involving local regulation of medical marijuana.  While some California cities have banned medical marijuana dispensaries altogether, others have adopted ordinances regulating them.  Because of continued uncertainty with respect to the scope of a city’s regulation and to avoid legal challenges, there are still other cities that have adopted moratoria until further guidance is provided by the court.  The Supreme Court’s review of the City of Long Beach case, the City of Riverside case, and two other cases involving local governments’ attempts to regulate medical marijuana may provide this guidance.

    In the Long Beach case, the City of Long Beach enacted a comprehensive regulatory scheme to govern medical marijuana collectives.  The ordinance allowed the city to issue permits to operate dispensaries.  The court of appeal struck down the permitting portion of the regulatory scheme because the court concluded it was preempted by federal law.  For more information on the City of Long Beach case, see our previous Legal Alert titled, “Federal Law Preempts City’s Medical Marijuana Ordinance,” October 26, 2011.

    The second case the Supreme Court agreed to review involves the City of Riverside.  Riverside’s Municipal Code prohibits medical marijuana dispensaries and further provides that any use prohibited by the code is a public nuisance that is subject to abatement.  A court of appeal held that neither the Compassionate Use Act of 1996 (“CUA”) nor the Medical Marijuana Program Act (“MMPA”) preempts the ordinance that bans medical marijuana dispensaries.  The court concluded the ban is valid and enforceable, and a violation of the ban constitutes a nuisance per se, which may be enjoined.

    In an unpublished decision issued the same day as the Riverside case, the same court of appeal held that the City of Upland’s ordinance imposing a complete ban on medical marijuana dispensaries was not preempted by state law.  G3 Holistic, Inc. sought a business license from the City of Upland to operate a medical marijuana dispensary.  The City of Upland refused to issue a business license because its Municipal Code provides that no medical marijuana dispensary shall be permitted to operate within any zone in the city.  After G3 Holistic refused the city’s request to close its business, the city filed a complaint against G3 Holistic seeking injunctive relief.  The court of appeal affirmed the trial court’s decision to issue a permanent injunction to prevent G3 Holistic from operating a dispensary.  The court of appeal held that G3 Holistic failed to demonstrate that the City of Upland’s ordinance was preempted by state law.  For more information on the cases involving the bans on medical marijuana dispensaries by the City of Riverside and the City of Upland, see our previous Legal Alert titled, “City’s Complete Ban On Medical Marijuana Dispensaries Is Valid And Enforceable,” November 13, 2011.

    Another case which the Supreme Court agreed to review involves the City of Dana Point.  The plaintiff in this lawsuit, a medical marijuana patient who is blind and suffers from numerous other ailments, claimed her quality of life was significantly improved through use of medical marijuana.  The patient sought a declaratory judgment on the grounds that the failure of the City of Dana Point’s zoning ordinances to expressly recognize medical marijuana dispensaries as permitted uses, constituted an effective ban on such dispensaries.  The plaintiff asserted the MMPA and the CUA preempt city zoning ordinances that ban dispensaries.  A court of appeal held that a medical marijuana collective or cooperative is the proper party to mount a challenge to a city’s zoning scheme, not the individual patient who uses the dispensary to obtain medical marijuana.  For more information on the City of Dana Point case, see our previous Legal Alert titled, “Medical Marijuana Patient Cannot Challenge Alleged Zoning Ban On Dispensaries,” October 26, 2011.

    The Supreme Court’s review comes as federal law enforcement officials have resumed enforcing marijuana laws.