Posted by: Patricia Salkin | November 25, 2011

California Appeals Court Rules Individual does not have Standing to Oppose Medical Marijuana Dispensary Ban

Plaintiff, Malinda Traudt, brought an appeal to the California Court of Appeal, Fourth District, Division Three, seeking to overturn the City of Dana Point’s banning of medical marijuana dispensaries.  The trial court dismissed the case and the court of appeals affirmed, finding the plaintiff did not have standing to challenge the City’s actions.

The plaintiff brought suit against the City for actions that constituted a ban on medical marijuana dispensaries within the community.  The City opined that since medical marijuana dispensing facilities are not expressly listed as a permitted land use within the City, such uses constitute a nuisance and are prohibited.  The plaintiff claimed this action was preempted by state law, namely the Compassionate Use Act of 1996 and the Medical Marijuana Program Act.

The Court did not reach the merits of the plaintiff’s assertion, rather finding that the plaintiff lacked standing since to seek relief from the prohibition, the petitioning party must represent a group or facility and here the plaintiff was suing as an individual.

The Court based this determination on rules governing corporate standing because much like corporations, dispensaries, operating as collectives or cooperatives, are legal organizations required to incorporate with the state.  As such, action seeking relief for a harm inflicted upon the dispensary would need to be brought by the dispensary itself.  This is similar to the shareholder not having the right to bring a direct action in the name of the corporation, absent a derivative action.  Since the plaintiff did not own this dispensary, nor does the plaintiff assert that she is representing all the members of the dispensary, she could not have brought a direct action.  In fact, the court stated that “while she is a member of [the dispensing facility], she has no ownership or potential other control over how it or any other dispensary or potential cooperative or collective association of qualified persons will react to a decision on the merits.”  Thus, the court found to appeal the determination was a right of the dispensing facility – a right the dispensary has exercised – and affirmed the dismissal.

 Traudt v. City of Dana Point, 11 Cal.App.4th 886 (4th Dist. 2011),

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=16121933460245612616&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


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