Posted by: Patricia Salkin | April 26, 2014

CA Appeals Court Upholds Medical Marijuana Ordinance Finding No Preemption and No Constitutional Issues

The County of San Bernadino (“County”), California, adopted an ordinance (“Ordinance”) in 2011 that prohibited the operation of “medical marijuana dispensar[ies],” which are statutorily defined as facilities “where marijuana is cultivated, made available, and/or distributed by or to three or more persons within the following categories: a primary caregiver, a qualified patient, or a patient with an identification card.” Some uses that are excluded from this definition include in-patient health facilities, residential care facilities for the elderly or for people with chronic life-threatening illnesses, home health agencies, and hospices.

Plaintiffs are five medical marijuana dispensaries, who sued the County for a declaration that the Ordinance was unconstitutional. Specifically, Plaintiffs claimed that the Ordinance (1) violated their vested rights under state law to operate their medical marijuana facilities; (2) violated their equal protection rights by treating medical marijuana dispensaries differently from primary caregivers and health facilities; (3) is preempted by California’s Compassionate Use Act of 1996 (“CUA”) and Medical Marijuana Program (“MMP”), both of which allow for the cultivation and distribution of medical marijuana; (4) violates their freedom of association rights; and (5) violates their privacy rights under state law.

The County moved to dismiss Plaintiffs’ complaint, and the trial court granted the County’s motion. Thereafter, Plaintiffs appealed to the Court of Appeal of California, Fourth Appellate District, Division Two. The appellate court first addressed Plaintiffs’ preemption claim, which became moot shortly after they had filed their complaint. The California Supreme Court held in an unrelated case that neither the CUA nor the MMP preempt local government laws concerning medical marijuana dispensaries. As such, the appellate court found that there was no actual controversy between the parties on this issue.

Next, the court considered Plaintiffs’ constitutional claims. Plaintiffs argued that the ordinance was an unlawful exercise of the County’s police power for “unreasonably affecting the regional welfare of medical marijuana patients” by limiting their ability to lawfully obtain medical marijuana. The appellate court explained that according to the California Supreme Court, a local land use ordinance is constitutional if it is “reasonably related to the public welfare.” In order to assess whether a law fulfills this requirement, the court must (1) “forecast the probable effect and duration of the restriction”; (2) “identify the competing interests affected by the restriction”; and (3) “determine whether the ordinance, in light of its probable impact, represents a reasonable accommodation of the competing interests.” The appellate court agreed with the lower court’s dismissal of this claim. First, Plaintiffs raised this issue for the first time on appeal and not in the trial court. Second, the complaint failed to sufficiently plead any of the aforementioned factors; namely, facts to support the probable effect and duration of the ordinance, the competing interests affected, and the reasonableness of the accommodation. Finally, there is no constitutional right to cultivation, use, or distribution of marijuana. As such, the court affirmed the dismissal of this claim.

Plaintiffs made further claims of equal protection, privacy, and due process violations. The court found that these claims were largely unsupported and insufficiently pleaded. Moreover, the court reiterated the fact that there is no constitutional right to use of marijuana, so these claims were nevertheless unfounded.

Clearview Lake Corp. v. County of San Bernardino, 2014 WL 936831 (Cal. App. 2 Div. 3/11/2014)


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