Posted by: Patricia Salkin | August 18, 2012

CA Appellate Court Holds Total Ban on Medical Marijuana Dispensaries Pre-Empted by State Law

On December 7, 2010, the Los Angeles County Board of Supervisors banned medical marijuana dispensaries in all zones in unincorporated areas of the County. Los Angeles County Code (LACC) section 22.56.196B provided that “medical marijuana dispensaries which distribute, transmit, give, or otherwise provide marijuana to any person, are prohibited in all zones in the County.” Subdivision A.1 stated “the purpose of the ordinance is to ban medical marijuana dispensaries in all zones in the County.” In the event the ordinance was deemed “unlawful,” a former ordinance would take effect, which requires a conditional use permit and business license and imposes location restrictions and operating requirements.

In March of 2011, the County filed a new nuisance action against defendants based on the new ban. The first cause of action sought injunctive relief. The County also alleged that defendants “have been operating [a medical marijuana dispensary] which is not in compliance with state law.” The second cause of action sought declaratory relief on the grounds that defendants “established and are operating [a medical marijuana dispensary] on the Subject Property in violation of the Los Angeles County zoning code.” The trial court granted the motion and “enjoined defendants and anyone acting on their behalf from operating or permitting to operate a medical marijuana dispensary and/or possessing, offering, selling, giving away or otherwise dispensing marijuana on or from the subject … and from any other location within the unincorporated area of the County of Los Angeles.” The trial courts concluded that the County’s ban was not preempted by state law. Defendants appealed the order granting a preliminary injunction and filed a petition for a writ of supersedeas staying the enforcement of the preliminary injunction.

On Appeal, the Court focused solely on the preemption issue. The Court first looked at California’s laws on medical marijuana, which is embodied in two enactments, the CUA and the MMP. Through the CUA, the voters “directed the state to create a statutory plan to provide for the safe and affordable distribution of medical marijuana to qualified patients.” The Legislature responded by enacting the MMP, to “(1) Clarify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. (2) Promote uniform and consistent application of the act among the counties within the state. (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.”

The Court then discussed how it evaluates a claim of preemption. “Whether state law preempts a local ordinance is a pure question of law subject to de novo review. The first step in a preemption analysis is to determine whether the local regulation explicitly conflicts with any provision of state law. When local government regulates in an area over which it traditionally has exercised control, such as the location of particular land uses, California courts will presume, absent a clear indication of preemptive intent from the Legislature, that such regulation is not preempted by state statute.” The Court noted that a “conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.” Furthermore,  “local legislation enters an area that is ‘fully occupied’ by general law when the Legislature has expressly manifested its intent to fully occupy the area, or when it has impliedly done so in light of one of the following indicia of intent: (1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is 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 held that the MMP authorizes “marijuana cooperatives, collectives, and dispensaries and shields them from nuisance abatement actions.” The Legislature placed such projects “beyond the reach of nuisance abatement under section 11570, if predicated solely on the basis of the project’s medical marijuana activities.” The Court held that is was “abundantly clear that the medical marijuana cooperatives or collectives authorized by section 11362.775 are permitted by state law to perform a dispensary function.”

The County attempted to avoid preemption by relying upon Civil Code sections 3479 and 3480. Civil Code section 3479 provides, “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” Civil Code section 3480 states, “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” The Court held that “to permit a nuisance prosecution under Civil Code section 3479… would frustrate the Legislature’s express intent to exempt from nuisance abatement the medical marijuana activities it identified in section 11362.775.” Furthermore, “Civil Code section 3482 precludes such a contradictory result by specifying that nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” Since medical marijuana cooperative or collective cultivation projects are authorized by the terms of Health and Safety Code section 11362.775, “Civil Code section 3482 applies, and their mere existence and operation pursuant to state law cannot be deemed a nuisance under Civil Code sections 3479 or 3480.” Accordingly, the County’s ban is preempted.

The Court then turned to section 11362.768, which was added to the MMP in 2010. The County relied upon subdivision (f), which states, “Nothing in this section shall prohibit a city, county, or city and county from adopting ordinances or policies that further restrict the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider,” and subdivision (g), which states, “Nothing in this section shall preempt local ordinances, adopted prior to January 1, 2011, that regulate the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider.” The Court disagreed with the County that by these sections the Legislature intended to authorize local governments to ban all medical marijuana dispensaries that are otherwise “authorized by law to possess, cultivate, or distribute medical marijuana.” The Court held that the ordinary meanings of “restrict” and “regulate” suggest a degree of control or restriction falling short of “banning,” “prohibiting,” “forbidding,” or “preventing.”

The Court also held that Section 11362.5, subdivision (b)(2) does not authorize County’s ban. “Merely operating a medical marijuana collective or cooperative authorized by section 11362.775 cannot be deemed to constitute “engaging in conduct that endangers others” or “condon[ing] the diversion of marijuana for nonmedical purposes.” The CUA and the MMP expressly pertain to marijuana used for medical purposes.

Lastly, the Court held that viewing County’s ban as a zoning law does not save it from preemption. The City County contended that the MMP does not “mandate cities and counties to allow and zone for medical marijuana dispensaries.” The Court held noted that “preemption does not arise only from an express legislative statement; a contradiction is sufficient. Thus, the Legislature’s failure to include in the MMP express provisions (1) prohibiting local governments from enacting zoning” provisions banning all medical marijuana dispensaries or from bringing a nuisance action enforcing such provisions or (2) mandating that local governments zone for medical marijuana dispensaries does not negate preemption.”

County of Los Angeles v. Alternative Medicinal Cannabis Collective, 2012 WL 2511800 (Cal.App. 2 Dist.)

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