Tuesday, March 15, 2016

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Judge Properly Barred Marijuana Delivery App—C.A.

By a MetNews Staff Writer

The Court of Appeal for this district yesterday upheld a preliminary injunction, obtained by the City of Los Angeles, barring the marketing or further development of a marijuana delivery app.

Div. Five, in an opinion by Justice Lamar Baker, found that retired Los Angeles Superior Court Judge Robert H. O’Brien, sitting on assignment, correctly found that the city is apt to ultimately prevail in the matter.

The decision keeps in place O’Brien’s Dec. 23, 2014 order barring Michael Joseph Pycher, Roddy Radnia, and their company, Nestdrop, LLC, from providing a marjuana delivery service in the City of Los Angeles, through their Nestdrop smartphone app. The preliminay injunction did not affect the complanty’s alcohol delivery service.

Download link for Nestdrop on Google.com

Meanwhile, Nestdrop continues to connect marijuana users with cultivators in other geographic areas. The Google store offers the app for dfownloading and notes:

“Available in San Francisco/Orange County/Oceanside/Pasadena/Stockton/Portland/Seattle.”

Proposition D

The controversy in the City of Los Angeles’ action centers on an interpretation of Proposition D, enacted by voters in 2013. While banning marijuana businesses, it accords grandfathered status to medical marijuana businesses in existence as of Sept. 14, 2007 which registered with the city, have continually operated at the same location, and meet other criteria.

Baker wrote:

“Defendants argue Proposition D permits medical marijuana dispensaries that are entitled to limited immunity under the ordinance to deliver marijuana to qualified patients by vehicle. If that interpretation is correct, defendants maintain the City has not shown a likelihood of success on the merits because the City did not proffer sufficient evidence to show defendants intended to facilitate deliveries of marijuana from what defendants knew to be non-immune businesses. The City counters that defendants misinterpret Proposition D, and that properly read, the ordinance prohibits any vehicle delivery of marijuana to patients (except by a designated primary caregiver). The City gets the better of the argument: Proposition D does prohibit virtually all deliveries of marijuana by vehicle, and the City has therefore shown it is likely to succeed in its suit against defendants on an aiding and abetting theory.”

Treatment of ‘Vehicles’

Under Proposition D, a “medical marijuana business” is defined in terms of a physical location or a “vehicle or other mode of transportation...which is used to transport, distribute, deliver, or give away marijuana to a qualified patient, a person with an identification card, or a primary caregiver.”

(By statute, a “qualified patient” is a person legally entitled to use medical marijuana but who has not obtained an identification card, and a “primary caregiver” is someone “who has consistently assumed responsibility for the housing, health, or safety” of the permissible marijuana user.)

Proposition D generally prohibits use of a vehicle in connection with delivery of marjuana, except that it permits “a primary caregiver to transport, distribute, deliver, or give away marijuana to a qualified patient or person with an identification card who has designated the individual as a primary caregiver.”

Baker wrote:

“That Proposition D expressly addresses how vehicles should be treated under the ordinance, and indeed makes a very limited exception to permit vehicle delivery of medical marijuana to patients by their designated primary caregiver..., belies defendants’ contention that Proposition D implicitly treats vehicle delivery as a permissible activity for a business that enjoys limited immunity at a fixed location.

“To be sure, there are more direct ways in which the drafters of Proposition D could have conveyed the intention to ban vehicle delivery of medical marijuana by otherwise immune businesses. A single sentence so stating would suffice. But we do not discard a meaning that is apparent upon review of a text merely because additional wordsmithing might have produced a more elegant phrasing.”

The case is People v. Nestdrop, LLC, B262174.

Michael D. Grahn representewd Nestdrop and Assistant Supervising Deputy City Attorney Anh Truong acted for the city.