9:10am | Reporting by Greggory Moore | The Second Appellate District Court of Appeal ruled Tuesday that much of Long Beach's medical-marijuana ordinance is in violation of federal law, thus striking down several of its provisions, including all of those pertaining to the permitting process for collectives.
The ruling, authored by Judge Patrick T. Madden, was handed down in the case of Ryan Pack et al. v. the Superior Court of Los Angeles County, in which petitioners Pack and Anthony Gayle sued the City of Long Beach under the theory that the City's entire medpot ordinance is invalid because it is preempted by federal law, since (as Madden writes) "the City’s ordinance went beyond decriminalization and insteadpermitted conduct prohibited by the federal CSA [i.e., Controlled Substances Act], and thus was preempted."
The case is remanded to the trial court for the resolution of several issues, but what seems to be the crux of the matter has been decided: the City's entire permitting process has been found to be illegal, since "[a] law which 'authorizes [individuals] to engage in conduct that the federal [Controlled Substances] Act forbids … "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress"' and is therefore preempted."
This would appear to mean that not only must the City cease its permitting activity — which has consisted mainly of various enforcement actions against collectives (including armed raids) for operating without a permit — but it will likely be compelled to refund all of the approximately $800,000 collected in regards to the September 20, 2010 lottery.
Additionally, it appears the City will have to dismiss all criminal and civil charges, be they against individuals or collectives, related to operating a collective without a permit.[i]
Lastly, the City is likely to face numerous lawsuits from patients and collectives who will claim to have been denied their state-sanctioned right "collectively or cooperatively to cultivate marijuana for medical purposes" by virtue of a permitting process that has been found to be illegal.[ii]
This decision came as no surprise to Matthew Pappas, Pack and Gayle's attorney, who says that during oral arguments at a September 13 hearing the judges in the case stated that by that point they had already "tentatively determined that the ordinance is preempted. [So] the question is no longer whether it's preempted, it's how much of it might survive preemption."
That is what the trial court will decide when they take up the remaining issues. But Pappas says that hardly matters, calling the ordinance "effectively dead now."
Important to note is that in no way does the Pack decision affect the protections afforded California medpot patients. As Madden writes, "Case law has concluded that California’s statutes are not preempted by federal law, as they seek only to decriminalize certain conduct for the purposes of state law. … [And] [w]hile the [Compassionate Use Act] decriminalizes the cultivation and possession of medical marijuana by patients and their primary caregivers,the [Medical Marijuana Program Act] extends that decriminalization to possession for sale, transportation, sale, maintaining a place for sale or use, and other offenses."
Long Beach Post attempted to contact the City Attorney's office late in the day Tuesday, without success.
[i] In August 2011 the offices of the City Prosecutor and City Attorney tallied for Long Beach Post the amount of outstanding cases, placing the number at more than 50, most of which related to operating a collective without a permit. However, several more similar charges have been filed since then.
[ii] The first cost the City will have to pay, though, has already been determined, as Madden notes at the end of his decision: "The petitioners shall recover their costs in this proceeding."