Posted by: Patricia Salkin | January 17, 2014

CA Appeals Court Holds Petitioner Lacks Standing to Challenge Zoning Ordinance Prohibiting Medical Marijuana Dispensaries and Notes that there is No Fundamental Right to Medical Marijuana

Jeffrey Schwartz legally used “medical marijuana pursuant to his physician’s recommendation.” Schwartz brought an action against the City of Dana Point alleging that it shut down all of the medical marijuana dispensaries in the City. The complaint also alleged that because Schwartz now had to drive 50 miles outside of the City, instead of 1.5 miles, to acquire medical marijuana that his rights to health care, health care decisions, control heath care decisions, and equal protection were violated as a result of the City’s actions. The superior court sustained the City’s demurrer and dismissed Schwartz’s action for lack of standing. The superior court found that Schwartz lacked standing because he did not have an “an ownership interest or control of the dispensary, and . . . there is no fundamental right to medical marijuana.”

The California Court of Appeal cited to City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc., 56 Cal. 4th 729 (2013) in support of its determination that the City could ban facilities, such as dispensaries. In Riverside, the City enacted a zoning ordinance that essentially banned establishments from distributing medical marijuana. The issue boiled down to whether the laws that now permitted the distribution and legalization of the use medical marijuana preempted this type of City ordinance that banned distribution. The court found that the only right the Compassionate Use Act (CUA) and Medical Marijuana Program (MMP) created was the right to be free from punishment, and not the right to unfettered access to medical marijuana. The court concluded that the City of Dana Point was permitted to shut down all dispensaries and collectives within its borders.

The court then addressed whether Schwartz had standing to challenge the zoning ordinance. The court found that because Schwartz was not attempting to open a dispensary, or collective, and that because he did not even live in the City, that his claim in its simplest form was that “the City’s action adversely affect[ed] his right to conveniently obtain medical marijuana.” Schwartz did not have standing to challenge the zoning ordinance for two reasons: first, Schwartz did not satisfy the “beneficial interest” standard, meaning he did not have some special interest to be protected above that of the public, and second, there was no “actual controversy relating to the legal rights and duties of the respective parties.”

Schwartz argued that the zoning ordinance infringed on his fundamental right to control his healthcare because the CUA and MMP legalized marijuana for medicinal purposes. The court did not find Schwartz argument convincing because he failed to provide any other reasoning or authority apart from his reference to the CUA and MMP. The court found that Schwartz did not have standing because the zoning ordinance did not infringe on Schwartz’s right to cultivate, use, or possess medical marijuana, but merely prohibited dispensaries or collectives from distributing it within its borders.

Schwartz v. City of Dana Point, 2013 WL 5780786 (Cal. App. 4th Dist. 10/25/2013)

The opinion may be accessed at:

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