City's Complete Ban On Medical Marijuana Dispensaries Is Valid And Enforceable

November 13, 2011 | Bulletin No. 985304.2

The Compassionate Use Act of 1996 (“CUA”) and the Medical Marijuana Program (“MMP”) do not preempt a city ordinance that bans medical marijuana dispensaries. The ban is valid and enforceable, and a violation of the ban constitutes a nuisance per se, which may be enjoined. (City of Riverside v. Inland Empire Patient’s Health and Wellness Center, Inc. (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., November 9, 2011).)

Update

The justices of the California Supreme Court recently agreed to hear several cases involving local regulation of medical marijuana.  See our Legal Alert entitled, "California Supreme Court Takes Up Issue of Local Regulation of Medical Marijuana Dispensaries", January 25, 2012.

Facts

A group of patients who collectively cultivate and redistribute medical marijuana formed a medical marijuana dispensary ("MMD"), known as the Inland Empire Patient's Health and Wellness Center, Inc. ("Inland"), in the City of Riverside ("Riverside"). Riverside Municipal Code, however, prohibits MMDs. The City's code further provides that any use prohibited by the code is a public nuisance and subject to abatement by Riverside.

In 2009, Riverside filed a complaint against various individuals and companies that owned, leased, or managed Inland. Riverside sought injunctive relief to abate the public nuisance and prohibit Inland from operating the MMD. The trial court held that Riverside may properly prohibits MMDs by local ordinance, and the court issued a preliminary injunction enjoining Inland from operating its MMD in Riverside. Inland appealed.

Decision

The primary issue on appeal was whether state law, specifically the CUA and the MMP, preempt Riverside’s ban of MMDs. The Court of Appeal held Riverside’s ordinance banning MMDs is not preempted by state law and is valid and enforceable, affirming the preliminary injunction issued by the trial court.

The appellate court observed that the CUA was designed to make sure that seriously ill Californians can obtain and use medical marijuana where such use has been recommended by a physician. The CUA, however, does not create either a constitutional or statutory right to obtain medical marijuana or a right for an MMD to sell or distribute marijuana. The MMP was enacted to promote consistent and uniform application of the CUA and enhance both patients’ and caregivers’ access to medical marijuana through collectives and cooperatives. The MMP also provides limited immunity from prosecution, including immunity from the “drug den” abatement law. Specifically, the MMP provides that qualified patients and caregivers with identification cards who associate to collectively or cooperatively cultivate marijuana for medical purposes shall not solely on the basis of that activity be subject to criminal sanctions. But, neither the CUA, nor the MMP preclude local regulation or prohibition of MMDs.

The court noted that municipal zoning ordinances are presumed valid, and that Inland bears the burden of demonstrating the invalidity of the ordinance. The Court rejected Inland’s argument that either the CUA or the MMP preempt or prohibit local governments from enacting ordinances to ban MMDs. Neither the CUA nor the MMP provide patients or caregivers with inalienable rights to establish, operate, or use an MMD. The laws also do not preclude local governments from implementing local ordinances to regulate MMDs. Therefore, the establishment and operation of MMDs are subject to regulation by local business and zoning laws.

Inland asserted that because a provision of the MMP exempts an MMD’s operator from liability for nuisance, an ordinance which bans MMDs and declares them a nuisance is preempted by state law. The Court of Appeal disagreed, finding that although the MMP may allow lawful MMDs, a local government can prohibit or limit MMDs through zoning or other regulations, and it may prosecute violations of the regulation by bringing a nuisance action.

The Court found that the Legislature did not expressly state an intent in the CUA or MMP to fully occupy the area of regulating, licensing, or zoning MMDs to the exclusion of local laws, and that Inland also failed to show implied preemption. In fact, in 2010, the Legislature added a provision to the MMP that states the law does not prohibit a local government from adopting policies or ordinances that further restrict the establishment or location of an MMD. This addition to the MMP cleared up any doubt about whether the Legislature intended to allow local governments to regulate MMDs. The Court rejected Inland’s argument that Riverside could not completely ban MMDs. A complete ban or prohibition is simply another type of regulation or restriction.

Because Inland's operation of an MMD constitutes a violation of a valid and enforceable zoning ordinance, its operations constitutes a nuisance per se that is subject to abatement. Therefore, the Court of Appeal found that the trial court did not abuse its discretion in granting Riverside injunctive relief, and it affirmed the trial court’s decision.

In an unpublished decision issued on the same day as the Riverside case, the same Court of Appeal held that a City of Upland ordinance imposing a complete ban on MMDs was also not preempted by state law. (See People v. G3 Holistic, Inc., Court of Appeal Case No. E051663 (4th Dist., Div. 2, November 9, 2011).) In that case, the City of Upland refused to issue a business license to G3 Holistic, Inc. to operate an MMD because Upland’s municipal code provides that no MMD shall be permitted to operate within any zone in the city. Upland asked G3 Holistic to close its business, but G3 Holistic refused Upland’s request. Upland filed a complaint against G3 Holistic seeking injunctive relief. The trial court issued a permanent injunction to prevent G3 Holistic from operating an MMD. G3 Holistic appealed. The Court of Appeal affirmed the judgment enjoining G3 Holistic from operating an MMD, finding, similar to the Riverside case, that G3 Holistic failed to demonstrate that Upland’s ordinance was preempted by state law.

Because the G3 Holistic case was not certified for publication by the Court of Appeal, it cannot be cited or relied upon as precedent. The Riverside case, however, having been certified for publication, does constitute binding precedent in California. The Riverside case is important because it is the first published decision in California explicitly confirming a local agency’s authority to completely prohibit MMDs by local ordinance.

Note

Kronick, Moskovitz, Tiedemann & Girard's Jonathan P. Hobbs is a member of the League of California Cities' Medical Marijuana Ad Hoc Committee, which has been monitoring recent legislative efforts and court cases involving local agency regulation of medical marijuana. Mr. Hobbs has also represented various cities in their efforts to regulate or prohibit MMDs, including representing cities in litigation to enforce their local ordinances. With his help, we will continue to update you on important developments in this area of the law.

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Jeffrey L. Massey or Jonathan P. Hobbs | 916.321.4500