Plaintiff, City of Riverside, California brought suit against the Inland Empire Patient’s Health and Wellness Center. The trial court granted Riverside’s motion for preliminary injunction, determining that Inland’s operation of a medical marijuana dispensary created a public nuisance per se subject to abatement and issued an injunction on its operation. Inland appealed, claiming Riverside’s ordinance banning medical marijuana dispensaries was preempted by state law; namely the Compassionate Use Act of 1996 and the Medical Marijuana Program. The Appeals Court affirmed the trial court’s ruling, finding the state legislation does not preempt local authorities from banning medical marijuana dispensaries.
The Riverside Municipal Code provides that medical marijuana dispensaries are not permitted as of right in any of the zone districts of the City. Additionally, the code states that if a use is illegal under state or federal law, it is a prohibited use. Lastly, the code provides that if a prohibited use is initiated, the use constitutes a public nuisance, regardless of its actual effects upon the community.
Addressing the preemption issue, the Court stated the burden of proof lies on the challenger, in this case being Inland. The court said that state preemption can be found in three different instances: where local law duplicates, contradicts, or enters in an area fully occupied by state law. Since this regulation was in a field usually dominated by local governments, zoning, the court began their analysis with the presumption that no state preemption exists. Given this presumption, the court stated that there would need to be a clear indication that “the Legislature intended to regulate the location of [medical marijuana dispensaries].”
The Court began their discussion of the preemption issue by agreeing with Inland that the fact that marijuana is an illegal drug is not a ground for prohibiting medical marijuana dispensaries withnin a jurisdiction, as was ruled in Qualified Patients Ass’n v. City of Anaheim. However, the court found no state preemption, either by duplication, contradiction or field occupation. There was no duplication preemption, as Riverside’s zoning regulation did not – in either scope or substance – mimic state law. Contradiction preemption was also not present, as state law protected medical marijuana dispensing facilities only from criminal (state law) liability based on the distribution of medical marijuana and did not remove liability from the violation of ordinances. The court stated there would have been contradiction preemption if the State Legislature had expressly prohibited municipalities from banning medical marijuana dispensaries. Lastly, the court found there was no field preemption, either express or implicit. Express preemption was not found as the State Legislature did not declare any intent to fully occupy the field. Implicit preemption was also not found as: the subject matter was not dominated by State law, making preemption clear; the subject matter was not partially covered by State law in such a way illustrating State control; and, the subject matter is not partially covered and “of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the locality.”
The Court stated that if it is to find state preemption, Inland would carry the burden of proof. The court found Inland did not meet this burden. Therefore state preemption was not found, the determination that there was a public nuisance per se subject to abatement was affirmed, and the injunction prohibiting the operation of the medical marijuana dispensary was not lifted.
City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 2011 WL 5386590 (Cal. Ct. App., 4th Dist. 11/9/2011)
The opinion can be accessed at: http://scholar.google.com/scholar_case?case=13593308934049003927&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
For an article on the land use aspects of medical marijuana see: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1635438
