Pubdate: Wed, 04 Jul 2012
Source: Long Beach Post (CA)
Copyright: 2012
Contact: http://www.lbpost.com/
Details: http://www.mapinc.org/media/5286
Author: Greggory Moore
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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MAP posted-by: Jay Bergstrom