The Holistic Collective (THC) provides medical marijuana to patients in Palm Springs, CA. The property is located within Palm Spring’s C-1 zoning district where medical marijuana dispensaries (MMD) are not a permissible use. Palm Spring’s Ordinance 1758 provided a process for legal operation of MMD’s in permissible zones. The ordinance provided for a 90 day application period for a permit and provided that there could not be more than two (later amended to three), MMD’s operating in Palm Springs at any time. THC not only was operating in a non-permissible area, they failed to obtain a permit for operating as well. Palm Springs sought a permanent injunction against THC and requested that THC be assessed up to $500 a day for violations and be cited as a public nuisance. THC filed a motion for summary judgment arguing that Palm Springs was preempted by state law and had violated THC’s rights to equal protection. The trial court denied summary judgment and the Court denied THC’s petition for writ of mandate. Palm Springs filed a motion for summary judgment, which THC did not file opposition to, and the trial court granted the motion. THC appealed from the trial court’s ruling denying THC’s summary judgment motion.
The Court first addressed the issue of preemption by considering the scope and purpose of California’s marijuana laws, the CUA and MMP. By ballot initiative, the Compassionate Use Act (CUA) was intended to “encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in need of marijuana.” The Court noted that it did not “create a statutory of constitutional right to obtain marijuana, or allow the sale or nonprofit distribution of marijuana by MMD’s.” The California Legislature enacted the MMP to promote “uniform and consistent application of the Compassionate Use Act of 1996 among the counties within the state.” MMP section 11362.83 clarifies “that cities have authority to enact local ordinances regulating MMD’s.”
The Court stated that “there is no clear indication the Legislature intended for state law to preempt local restrictions on the number and location of MMD’s permitted within the city.” Furthermore, the Court said that since the Palm Spring ordinance did not “duplicate, contradict, or enter an area fully occupied by state law, the ordinance is not preempted by state law.” The state statutes covering MMD’s do not prevent local governments from regulating the industry through zoning ordinances, nothing to the contrary is found within the statutes. The statutes do not mandate that MMD’s be permitted or prevent them from being limited in number and location. THC contends that the ordinance is invalid because it is inconsistent with the MMP. While the MMP provides “limited immunity to those using and operating lawful MMD’s, the MMP does not restrict or usurp in any way the police power of local governments to enact zoning and land use regulations restricting the number and location of MMD’s.” THC then argues that since the MMP exempts an operator of an MMD from liability for nuisance, state law preempted the ordinance. The Court disagreed since Palm Springs was prosecuting THC for a zoning violation and not “solely on the basis” THC was operating an MMD.
The Court then examined whether the local legislation was entering an area fully occupied by the field of State law. “Local legislation entered an area that is fully occupied by general law when the Legislature has expressly manifested its intent to fully occupy the area.” Since the State regulations sis not expressly state “an intent to fully occupy the area regulating, licensing, and zoning MMD’s,” the ordinance did not enter into the area. Furthermore, the Court held that “Palm Spring’s zoning ordinance banning MMD’s is not impliedly preempted by state law since Palm Spring’s ordinance does not enter an area of law fully occupied by the CUA and MMP by legislative implication.” Local legislation can be found to enter an area impliedly when it does so in one of the following indicia of intent: “(1) the subject matter has been so fully and completely covered by the 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 same 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 ordinance had not been “fully and completely covered by general law,” that the “state statutory scheme expresses an intent to permit local regulation of MMD’s, (so) preemption by implication of legislative intent may not be found,” and that THC did not show that “any adverse effect on the public from Palm Spring’s MMD ordinance outweighs the possible benefit to the city.”
THC also contends that the “total ban on Appellant’s otherwise conduct contradicts state law,” because of the intent of the state statutory scheme to promote uniformity and access. However, the Court notes that THC is operating without a permit. Furthermore, it is not a complete ban, but a restriction on number and location. The MMP also recognizes “local governments’ interest in exercising their police powers in regulating the distribution of medical marijuana in furtherance of maintaining a safe and law-abiding community.” The Court notes that while this may lead to differences between communities, MMD regulations still remain consistent with the general provisions of the MMP.
Finally, the Court addressed the issue of equal protection. THC contends that the ordinance is not rationally related to any valid legislative purpose and furthermore that MMD’s should be permitted to operate in the same districts as pharmacies. The Court rejected this argument. First, MMD’s and pharmacies are not “similarly situated for public health and safety purposes,” so they do not need to be treated equally. Medical Marijuana still remains illegal under federal law. Furthermore, the “decision of the zoning authorities as to matters of opinion and policy will not be set aside or disregarded by the courts unless the regulations have no reasonable relation to the public welfare or unless the physical facts show that there has been an unreasonable, oppressive, or unwarranted interference with property rights in the exercise of police power.” The Court found that since medical marijuana was still an illegal drug, there was a sufficient justification for Palm Springs to regulate MMD’s. Finally, THC failed to show that Palm Spring’s ordinance was not a “justifiable exercise of police power under such circumstance.”
City of Palm Springs v. The Holistic Collective, 2012 WL 1959571 (Cal.App. 4 Dist. 5/31/2012)