Posted by: Patricia Salkin | February 6, 2016

CA Appeals Court Upholds City of Los Angeles “Prop D” Making It Unlawful to Own, Establish, or Operate Medical Marijuana Businesses Absent Compliance with Narrow Exception Requirements

The City of Los Angeles Prop D enacted City Ordinance No. 182580, which repealed the existing sections of the municipal code relating to medical marijuana, and enacted new provisions. Prop D provided that it was “unlawful to own, establish, operate, use, or permit the establishment or operation of a medical marijuana business …” in the City. However, there was a limited exception for medical marijuana businesses meeting several requirements, including the condition that the medical marijuana business must have timely registered under both the Interim Control Ordinance and the Grandfather/Lottery Ordinance. The Interim Control Ordinance prohibited dispensaries except for any dispensary established before the ordinance’s effective date (September 14, 2007) and operating in accordance with state law, if the owner or operator of the dispensary were to register with the City Clerk by filing certain identified documents within 60 days (by November 13, 2007). The Grandfather/Lottery Ordinance allowed all collectives which had been in operation on or before September 14, 2007 to register for the right to participate in a lottery, from which 100 collectives would be chosen for inspection and, if all other requirements were satisfied, registration. Other requirements included restrictions on hours of operation, limits on proximity to land zoned residential, and limits on proximity to schools, parks, religious institutions, and other medical marijuana businesses. The City prevailed on a demurrer to appellants’ first amended complaint, and on appeal the Appellants challenged the process by which Prop D was enacted.

Appellants’ principle contention was that Prop D was adopted in violation of Government Code section 65804, a section of the state Zoning Act, which imposes minimal procedural standards for city zoning hearings. The City argued that the Zoning Act requirements applied only to the enactment of ordinances by local legislative bodies and not to the enactment of ordinances by initiative or referendum (whether in a charter city or general law city). The court agreed, finding that “when zoning is enacted by initiative, landowners have the same opportunity as their opponents to present their case to the electorate.” Therefore, it held that any failure to follow the Zoning Act notice and hearing requirements for council-enacted ordinances had no effect on the validity of Prop D.

Appellants next argued Prop D was preempted by California’s Medical Marijuana Regulation and Safety Act (MMRSA), which created a state licensing scheme for medical marijuana. However, because Prop D was a municipal initiative on a wholly municipal matter, it was properly enacted without a planning commission hearing. Moreover, the MMRSA stated that nothing in its regulatory scheme “shall be interpreted to supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements.” It also explicitly stated that issuance of a state medical marijuana license “shall in no way limit the ability of the City of Los Angeles to prosecute any person or entity for a violation of, or otherwise enforce, Proposition D”. Accordingly, the court affirmed the trial court’s dismissal of the Appellants’ claims, and denied leave to amend.

Safe Life Caregivers v City of Los Angeles, 2016 WL 146695 (Ca. App. 1/13/2016)


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