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July 3, 2012

County’s Comprehensive Ban on Medical Marijuana Dispensaries Is Preempted by State Law

County’s Comprehensive Ban on Medical Marijuana Dispensaries Is Preempted by State Law

County of Los Angeles v. Alternative Medicinal Cannabis Collective [Second District Court of Appeal No. B233419, filed 7/2/12]

By Andrea A. Matarazzo

The Alternative Medicinal Cannabis Collective (“Collective”) appealed a trial court order granting an injunction prohibiting them from operating a medical marijuana “dispensary” in any unincorporated area of the County of Los Angeles.  The Collective argued that the injunction was improper because the County’s blanket ban on medical marijuana dispensaries conflicted with, and was preempted by, the Compassionate Use Act (“CUA”) [Proposition 215] enacted by the voters in 1996 authorizing the use of marijuana for medical purposes and the Medical Marijuana Program (“MMP”) enacted by the Legislature authorizing the operation of a “medical marijuana cooperative, collective, dispensary” in a “storefront . . . outlet.” The County maintained that its ban was a permissible land use regulation consistent with, and not preempted by, state medical marijuana laws.

 

California medical marijuana law is embodied in two enactments, the CUA and the MMP.  The CUA is codified at Health and Safety Code section 11362.5.  Subdivision (d) of section 11362.5 provides:  “Section 11357, relating to the possession of marijuana, and [s]ection 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.”  Through its approval of the CUA, the electorate “directed the state to create a statutory plan to provide for the safe and affordable distribution of medical marijuana to qualified patients.”  (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1014.)  The Legislature responded by enacting the MMP, which added Health and Safety Code sections 11362.7 through 11362.83.  The Legislature expressly stated that by enacting the MMP, it intended to “(1) Clarify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.  [¶]  (2) Promote uniform and consistent application of the act among the counties within the state.  [¶]  (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.”  (Stats. 2003, ch. 875, § 1, subd. (b)(1)–(3).)

 

In enacting the MMP, the Legislature expressly authorized collective, cooperative cultivation projects as a lawful means to obtain medical marijuana under California law and immunized the activities of such projects from both criminal sanctions and nuisance abatement actions.  Section 11362.775 provides:  “Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, 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 sanctions under Section 11357 [possession of marijuana or “concentrated cannabis”], 11358 [cultivation of marijuana], 11359 [possession of marijuana for sale], 11360 [transporting, importing, selling, furnishing, or giving away marijuana], 11366 [maintaining a place for the sale, giving away, or use of marijuana], 11366.5 [making real property available for the manufacture, storage, or distribution of controlled substances], or 11570 [abatement of nuisance created by premises used for manufacture, storage, or distribution of controlled substance].”  Section 11570 states, “Every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance, precursor, or analog specified in this division, and every building or place wherein or upon which those acts take place, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance.”

 

The Legislature contemplated the lawful operation of medical marijuana dispensaries in the circumstances specified in section 11362.775, namely, using property collectively or cooperatively to grow, store, and distribute medical marijuana, and expressly immunized that activity from nuisance abatement.  The County’s complete ban on medical marijuana dispensaries prohibited what the Legislature authorized in section 11362.775.  In the view of the Court of Appeal, “[t]he contradiction is direct, patent, obvious, and palpable:  County’s total, per se nuisance ban against medical marijuana dispensaries directly contradicts the Legislature’s intent to shield collective or cooperative activity from nuisance abatement ‘solely on the basis’ that it involves distribution of medical marijuana authorized by section 11362.775.”  Accordingly, the appellate court found that the County’s comprehensive ban on all “medical marijuana dispensaries,” including collectives and cooperatives authorized under Health and Safety Code section 11362.775, conflicted with, and was preempted by, California’s medical marijuana laws.

 

Authored by:

Andrea A. Matarazzo

Andrea’s practice focuses on land use law and related environmental issues in California and the western United States.  She assists developers, business owners, and public agencies in all aspects of project permitting and entitlements, environmental compliance, and litigation, particularly in connection with environmental review under CEQA and NEPA.  Her practice includes planning and zoning law, endangered species regulations, air quality, water supply and water quality mandates, wetlands, and other regulatory requirements.

(916) 496-8500

(916) 737-5838 (Direct)

andrea@pioneerlawgroup.net

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