In January 2010, the City of Los Angeles (City) passed an ordinance regulating the number and location of medical marijuana collectives within city limits. Respondents, a group of medical marijuana collectives, filed various suits seeking an injunction on enforcement of the City ordinance. At trial, the court granted a preliminary injunction based on respondents’ arguments that the ordinance violated equal protection, state right to privacy laws, and due process, and that the ordinance was preempted by state two major state laws – the Compassionate Use Act, 1996, (CUA) and the Medical Marijuana Program Act, 2003 (MMPA). The City here appeals.
Both the CUA and MMPA singled out individuals and groups, such as physicians, qualified patients, primary caregivers, and those who provide assistance in cultivating and administering medical marijuana, for immunity from criminal prosecution, provided their possession, use, or distribution of marijuana was solely for medical purposes. Under those regulations, the state specifically provided that the statutes would not preclude the passage of local ordinances on the “location, operation, or establishment of a medical marijuana cooperative or collective.”
In response to complaints and law enforcement concerns about the increasing number of medical marijuana dispensaries within city limits, the City of Los Angeles in 2007 passed an interim control ordinance which prohibited the establishment of any new marijuana dispensaries within city limits. Dispensaries existing before September 2007, which operated in compliance with state laws, were permitted to continue operation provided they registered with the City Clerk within 60 days of the ordinance’s adoption. The City allowed itself up to two 180-day extensions of the prohibitions, which the City then took advantage of. Approximately 187 dispensaries complied with the registration requirements by the City’s imposed deadline. An additional 30 caregiver organizations also registered with the City under the same ordinance.
In June 2009, the City enacted a new temporary control ordinance which extended the prohibitions through March 2010, or until a permanent ordinance was passed, whichever came first. In January 2010, the City passed a permanent ordinance, to take effect in June 2010, after holding 16 public hearings and hearing testimony from numerous members of the public and law enforcement officials who testified that there had been an “explosive increase” in crime and complaints involving medical marijuana dispensaries, taxing the City police department. The new regulations required that collectives submit new registrations to continue operating and placed a cap on the number of collectives permitted in the City at 70, to be distributed throughout City neighborhoods according to population.
Under the new regulations, the only collectives permitted to register were those that previously registered, had operated continuously at their current location since September 2007, have the same owners and operators as those who applied for the original 2007 registration, have not been cited for nuisance or public safety violations, and are meeting or plan to meet new requirements on the distance from other collectives, schools, parks, libraries, and other land uses. Within one week of the new ordinance’s effective date, collectives wishing to continue operation were required to notify the City of their intent to re-register. Priority was given to collectives that had previously registered because, according to the City, such collectives had shown a willingness to comply with local medical marijuana dispensary regulations. In the event that the total number of operating collectives ever fell below 70, the City planned to hold a lottery to give new collectives not permitted to operate under the 2010 ordinance the opportunity to register.
On the question of whether the ordinance violated equal protection, the court held that it did not, because it did not discriminate on its face, it did not create a suspect class, and the City’s justification for imposing limitations on medical marijuana collectives, given safety and crime-related concerns, withstood rational basis scrutiny. On the question of whether the ordinance created a suspect class, the court held that the only potential class which might have an equal protection claim – collectives in existence prior to the 2007 ordinance who, because of reported misunderstandings about the applicability of the new law, failed to register before the 60 day window had lapsed – was not represented by any of the collectives involved in the claim. All of the collectives involved in the suit had adhered to the registration requirements and thus were unable to sustain an equal protection challenge on behalf of other unregistered collectives, as such a challenge was purely theoretical. The court dismissed the equal protection challenge.
On the question of preemption, the trial court had voided portions of the ordinance because of conflict preemption with the MMPA. The trial court had determined that, because the MMPA immunized against criminal prosecution for collective cultivation of medical marijuana, while the City ordinance made it a misdemeanor for a collective to violate the City’s new provisions, conflict preemption existed. In addition, the ordinance included a sunset provision which, if the City failed to pass an extension, would have effective a ban on all collectives within City limits, outlawing conduct which the MMPA allowed. Since conflict preemption exists where a local law expressly prohibits conduct which is otherwise permitted by state laws, the trial court held that the ordinance suffered conflict preemption here. However, the appellate court held that reasoning to be in error.
Rather, the appellate court held that the state had not intended to fully occupy the field of medical marijuana dispensary regulation merely by passing the CUA or MMPA for two reasons. First, the MMPA and CUA gave targeted exemptions from criminal prosecution for certain individuals and groups engaged in the possession, distribution, and administration of marijuana for medical purposes. These regulations did not include controls on the location, number, or operation of dispensaries or collectives. Second, the MMPA included specific statutory language which provided that the law was not intended to prevent municipal ordinances controlling the location and operation of such dispensaries. Because the state had both expressly and impliedly left room for local regulations, the court held the City ordinance was not preempted by state laws.
Due process claims were dismissed because, according to the court, there was no statutory benefit or entitlement held by the medical marijuana dispensaries that would have triggered California’s expansive due process protections. The court noted that the MMPA did not create a statutory right to collectively cultivate, distribute, or administer medical marijuana; the legislation merely protected those engaged in that activity from criminal prosecution. Further, the court stated that, even if the MMPA had created a benefit or right, there was no deprivation without due process since the City action complained of was a letter sent to dispensaries that would be unable to register under the new law. The court held that the letter was merely a courtesy notice explaining the new regulations and not itself an action that would constitute deprivation of due process.
420 Caregivers, LLC v. City of Los Angeles, 2012 WL 2552150 (Cal. Ct. Appl., 2d Dist., 7/19/12)
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