County Ban on Medpot Dispensaries Ruled Illegal

In a decision that may have major implications for the City of Long Beach's ban on medical-marijuana dispensaries, an appeals court has ruled that a similar ban imposed by Los Angeles County is preempted by state law.

"[… T]he County’s complete ban on all 'medical marijuana dispensaries,' including collectives and cooperatives authorized under Health and Safety Code section 11362.775, conflicts with, and is thus preempted by, California’s medical marijuana laws," writes Judge P.J. Mallano in the unanimous decision handed down by the California Court of Appeals (2nd District) on July 2.

The case, County of Los Angeles v. Alternative Medicinal Cannabis Collective, et al., concerns a ban of medpot dispensaries in all unincorporated areas of L.A. County, a ban the County contended did not conflict with the Compassionate Use Act and the Medical Marijuana Program and was a "permissible land use regulation."

However, noting that "[t]he electorate thus 'directed the state to create a statutory plan to provide for the safe and affordable distribution of medical marijuana to qualified patients,' to '[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects,'" the appeals court found that state law "expressly authorize[s] collective, cooperative cultivation projects as a lawful means to obtain medical marijuana under California law," and that "such projects [are] beyond the reach of nuisance abatement under [HSC] section 11570, if predicated solely on the basis of the project’s medical marijuana activities."

While the City's ban, LBMC §5.89, does not directly cite HSC §11570, its explicit rationale concerns nuisance abatement ("negative secondary effects"), as well as zoning (i.e., land-use) issues.

Due to the lateness of the issuance of the decision, the city attorney could not be immediately reached for comment.

The ruling seems to implode many arguments made in defense of the legality of dispensary bans. For example, it has often been argued by city officials that storefront dispensaries, and sales of marijuana therein, are not authorized by state law. However, the appeals court found that the Medical Marijuana Program

repeatedly refers to "medical marijuana cooperative, collective, dispensary, operator, establishment, or provider.” (§ 11362.768, subds. (b)–(g), italics added.) Subdivision (e) of section 11362.768 expressly contemplates that a “medical marijuana cooperative, collective, dispensary, operator, establishment, or provider” may have a “storefront or mobile retail outlet”: “This section shall apply only to a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider that is authorized by law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a local business license.” (Italics added.) Further, an examination of the activities immunized by section 11362.775 reveals that the Legislature necessarily contemplated a dispensary function by collective or cooperative cultivation projects by authorizing such projects to maintain a place for the sale, use, and distribution of marijuana (§ 11366); use property to grow, store, and distribute marijuana (§ 11366.5); and possess marijuana to distribute (§ 11359).

The court also found that many arguing for the legality of such bans "have relied upon an unduly narrow view of California’s medical marijuana laws as providing only 'limited criminal immunities under a narrow set of circumstances.' […] Although section 11362.775 refers to 'criminal sanctions,' it also expressly affords immunity from nuisance abatement actions under section 11570 […]."

"[B]ased on this ruling, the current all out ban on medical marijuana dispensaries by the City of Long Beach appears to be preempted by state law, and cannot be enforced," said Jina A. Nam, an attorney for the Long Beach Collective Association, in a written statement. "The City Attorney's argument that dispensaries are not permitted under State Law is erroneous under this ruling. It also appears that if the City chooses one of the lesser measures such as a temporary moratorium or the types of regulations that were included in its old ordinance, that such measures would be allowed."

Monday's ruling was the second such decision handed down by a state appeals court since Long Beach instituted its ban. In February, the California Court of Appeals (4th District) "conclude[d that] local governments may not prohibit medical marijuana dispensaries altogether," and that state law "exempts qualified medical marijuana patients and their primary caregivers not only from criminal prosecution for authorized collective or cooperative activities, but also from nuisance abatement proceedings. Thus, the Legislature has determined the activities it authorized at collective or cooperative cultivation sites, including a dispensary function, do not constitute a nuisance."

(Note: the Second Appellate District includes Long Beach.)

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