City May Not Impose Total Ban on Marijuana Dispensaries

Thursday, March 1, 2012

Page 1

City May Not Impose Total Ban on Marijuana Dispensaries—C.A.

By KENNETH OFGANG, Staff Writer

A city may not impose a total ban on medical marijuana dispensaries that operate at cultivation sites, the Fourth District Court of Appeal ruled yesterday.

“We conclude local governments may not prohibit medical marijuana dispensaries altogether, with the caveat that the Legislature authorized dispensaries only at sites where medical marijuana is ‘collectively or cooperatively . . . cultivate[d],’ “ Justice Richard Aranson wrote for Div. Three. “[Health and Safety Code] Section 11362.775 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.”

Because the City of Lake Forest sought not merely to regulate, but to declare illegal, that which the Legislature says is permissible, the ban is preempted by state law, the justice said. And because Orange Superior Court Judge David Chaffee’s order shutting down the Evergreen Holistic Collective was based on the city’s preempted ordinance, reversal is required, Aronson explained.

In seeking to enjoin the collective, the city noted that it was located in the “commercial community district,” and that the Lake Forest Municipal Code specifies the activities that may take place there, which do not include medical marijuana distribution. The city also noted that outside that district, no commercial activities are allowed unless specifically approved by the city, and that medical marijuana distribution is not a permitted activity.

Since it is not permitted anywhere in the city, officials alleged in their complaint, it is a categorical public nuisance, even though a specific moratorium on dispensaries had expired. Chaffee agreed and issued the injunction.

Matter of Statewide Concern

Aronson, however, writing for the Court of Appeal, said that by enacting the Medical Marijuana Program Act, of which Sec. 11362.775 is a part, the Legislature made medical marijuana distribution a matter of statewide concern, meaning that conflicting local ordinances are invalid. While a city may still use the nuisance abatement laws to prevent a dispensary from operating in an improper manner, the justice said, it may do not prevent it from operating at all.

“Instead, the City must show the dispensary did not grow its marijuana on-site or otherwise failed to comply with applicable state medical marijuana law or permissible local regulations,” the jurist wrote. “Put another way, the City’s purported per se nuisance bar 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, and because the Legislature has determined the issue is a matter of statewide concern, the City’s ban is preempted.”

The city’s argument that it was seeking to ban the dispensary not just because it existed, but because it was operating in violation of a per se zoning ban, was “specious,” the justice said. Nor can the city rely on its constitutional home rule powers, Aronson explained, because the Constitution bars cities from enacting laws that are “in conflict with general laws” of the state.

Last Year’s Amendment

Nor, he went on to say, does last year’s MMPA amendment, allowing cities to “restrict the location and establishment of a….dispensary,” support the city’s position. The plain meaning of the word “restrict,” the justice said, shows that the Legislature did not intend to allow cities to “ban” or “prohibit” dispensaries within their borders, as long as the facilities are operated in the manner required by state law.

Aronson emphasized that the court was ruling only on Lake Forest’s complete ban, and was not considering whether the city could ban dispensaries from specified areas. And he noted that the Court of Appeal has upheld local measures requiring dispensaries to obtain business licenses, to follow local land use laws, and to pay local taxes, just like other businesses.

“We recognize our conclusions today may disappoint the parties in this case and the opposing sides in California’s ongoing debate concerning medical marijuana: dispensaries because they may wish to operate independently of cultivation sites, and some cities and other local governments because they want to ban dispensaries altogether,” the justice wrote. “We emphasize that these are policy outcomes outside our power to reach or grant because we are constrained by the voters’ and the Legislature’s enactments. “

The case is City of Lake Forest v. Evergreen Holistic Collective, G043909.