Posted by: Patricia Salkin | December 9, 2011

CA Appeals Court Holds Regulations Authorizing Medical Marijuana Consumption Preempted by Federal Law

In 2010, the City of Long Beach, California instituted a comprehensive medical marijuana dispensing facility permitting ordinance.  The plaintiffs, members of medical marijuana collectives, brought this action for declaratory relief after their collectives were ordered closed.  The plaintiffs claimed the ordinance was preempted by federal law, as the ordinance went beyond decriminalizing medical marijuana, affirmatively permitting conduct that was prohibited by the federal Controlled Substance Act. 

The trial court denied the plaintiff’s request for a preliminary injunction based upon unclean hands; that if the injunction was to be granted, the plaintiffs would continue to violate the same federal statute.  The plaintiffs soon thereafter brought this instant action in the form of a writ of mandate, challenging the trial court’s denial.  The appeals court determined that the ordinance is preempted in part by the federal Controlled Substance Act, and therefore granted the plaintiffs’ petition.

The Court of Appeal began their analysis by stating that there is a presumption against preemption where the subject matter is an area traditionally under State or Local control.  Since regulation of medical practice and criminal drug possession are matters historically under state control, and land use regulation is traditionally an area under local control, in this instance, there is a presumption against federal preemption.  Thus, if any federal preemption would be found, it would need to be clear.

The court further provided that federal preemption can be of four types: express, conflict, obstacle, and field.  Express preemption is found where there is a statement of preemption.  Conflict preemption is present where compliance with both federal and state or local law is impossible.  Obstacle preemption occurs where the state or local law is an obstacle to the execution of federal law.  Lastly, field preemption arises where the federal government has manifested an intent, through comprehensive regulation, to occupy an entire subject matter of law.

In view of the preemptive language provided by Congress in the Controlled Substance Act, the court found it was clear that no express or field preemption could occur.  With conflict and obstacle preemption still alive, the court first addressed conflict preemption.  At first glance, the court found there was no conflict preemption.  Although the ordinance allows for the dispensing of medical marijuana, it does not require anyone to do so.  However, the ordinance does require dispensing facilities to have their product tested by independent laboratories.  The court found that this regulation required conduct in conflict with federal law, resulting in this portion of the ordinance to be preempted.  That the dispensaries are already engaged in conduct illegal under the CSA is of no consequence, as the ordinance requires the perpetration of further acts that are illegal under the CSA. 

Moving next to obstacle preemption, the court provided that in order for the ordinance to be preempted, it must stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  The Court of Appeal, Sixth District, determined that there is no such thing as medical marijuana as Congress is concerned, and that any use is therefore for recreational purposes.  Congress’s purpose for the enactment of the CSA was the combating recreational marijuana use.  Since the ordinance provided a permitting scheme that, under federal law, provided for the distribution of marijuana for recreational use, the permitting scheme is an obstacle to Congress’s purpose.  Since the permitting scheme constituted an obstacle, it is preempted. 

In addressing how an action can constitute obstacle preemption, the court explained that one needs to look to the type of action the state or locality is taking; they can either prohibit, not prohibit nor authorize, or they can authorize the conduct.  Where the federal government prohibits conduct, and the state or local law does not prohibit nor authorize such conduct, there is no preemption.  This is the case with California’s Compassionate Use Act, as the decriminalization of medical marijuana use does not create an obstacle to Congress’s criminalization.  However, in this matter, the local ordinance authorizes conduct, illegal under federal law, through the requirement that the dispensary pay a fee, enter into a lottery system, obtain a permit to operate, and pay annual fees.  These requirements constituted authorization, which created an obstacle to the federal law.  The key here for the court was the distinction between mere decriminalization and authorization.

Addressing the severability of the preempted sections of the ordinance, the Court of Appeal provided that this is an issue of first impression and should be determined by the trial court.  However, the court did explain that the provisions of the ordinance not permitting or authorizing medical marijuana dispensing facilities could be severed and continue to operate.  These provisions include limitations on the hours of operation of such facilities and the consumption of alcohol on-site, among others.

Pack v. Superior Court, 132 Cal.Rptr.3d 633 (Ct. App. 2nd Dist. Oct. 4, 2011)

The opinion can be accessed at: http://www.courtinfo.ca.gov/opinions/documents/B228781.PDF.


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