Posted by: Patricia Salkin | November 29, 2015

CA Appeals Court Finds Enactment of Ordinance Restricting Medical Marijuana Businesses Did Not Require Public Hearing Before City Planning Commission

On May 21, 2013, the voters of the City of Los Angeles approved Proposition D, a measure placed on the ballot by the City Council to regulate medical marijuana businesses (MMB’s), making it a misdemeanor to “own, establish, operate, use, or permit the establishment or operation of a MMB” Medical marijuana business, Optimal Global Healing, Inc., and its chief executive officer (CEO) were convicted of operating medical marijuana business in violation of city ordinance. In this case, Defendants Optimal Global Healing, Inc. and CEO Demarcio Posey appealed the judgment resulting from their convictions for two counts of operating an unlawful MMB. California law allows medical marijuana dispensaries to be lawfully operated notwithstanding California statutes which otherwise make the possession, transportation, and sale of marijuana a criminal act. According to defendants, Proposition D conflicts with zoning laws contained in the Government Code, and is therefore invalid.

Defendants also argued that Proposition D’s regulation of MMB’s affected land use and, as such, contained a zoning component, which in turn required the City’s planning commission “hold a public hearing on the proposed zoning ordinance or amendment” and provide notice thereof as set forth in the indicated code sections. However, because Proposition D was enacted by voters rather than the City Council a hearing before the planning commission was not required. The court found that the removal of the ordinance from the City Council to the electorate rendered the planning commission hearing component of the Government Code inapplicable while simultaneously protecting the rights of the citizenry to notice of the proposed ordinance, and an opportunity to participate in the democratic process of passing the ordinance. As to Defendants’ argument that they lacked the requisite mens rea, the court found that LAMC section, subdivision A, does not use such words as “knowingly,” “willfully” or “intentionally” in specifying the unlawful conduct, or otherwise state an explicit mens rea requirement. Furthermore, the ease with which defendants could determine they were engaged in the prohibited conduct of operating an MMB weighed in favor of strict liability. Accordingly, the trial court’s holding that the People were not required to prove mens rea in order to secure a conviction for the illegal operation of an MMB was affirmed.

People v Optimal Global Healing, 2015 WL 6940135 (CA App. 11/5/2015)

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