Medical Marijuana Patient Cannot Challenge Alleged Zoning Ban On Dispensaries

October 26, 2011 | Bulletin No. 983241.2

A medical marijuana patient is not the proper party to challenge a zoning ordinance which patient alleges bans medical marijuana dispensaries. In Traudt v. City of Dana Point (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., September 30, 2011), a Court of Appeal held that a medical marijuana collective or cooperative is the proper party to mount a challenge to a city’s zoning scheme, not the individual patient who uses the dispensary to obtain medical marijuana.

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

Malinda Traudt ("Traudt") is blind and suffers from numerous other aliments. After Traudt had a severe reaction to Oxycontin, a pain specialist replaced Traudt's pain medication with medical marijuana. Traudt claims her quality of life significantly improved and her pain became manageable through continued use of medical marijuana. Traudt's mother obtained medical marijuana for Traudt from the Beach Cities Collective ("Beach Cities").

The City of Dana Point ("City") filed a nuisance abatement action seeking to shut down Beach Cities. Traudt filed a lawsuit against the City asserting that it was improperly attempting to close all of the medical marijuana collectives in Dana Point. Traudt sought a declaratory judgment that the failure of the City's zoning ordinances to expressly recognize medical marijuana dispensaries as permitted uses constituted a zoning ban on such dispensaries and that the Medical Marijuana Program Act ("MMPA") and the Compassion Use Act ("CUA") preempt city zoning ordinances that ban dispensaries. The trial court dismissed Traudt's lawsuit.

Decision

The Court of Appeal dismissed Traudt's appeal because she lacks standing to challenge the alleged zoning ban on dispensaries. A medical marijuana patient cannot challenge a generally applicable zoning provision because the Legislature vested whatever rights there may be to engage in a medical marijuana collective or cooperative to the collective or cooperative entities not to individuals. Shareholders do not have standing to challenge an alleged infringement of a corporation's rights. Similarly, an individual patron or stakeholder of a dispensary does not have standing to challenge an alleged infringement of a right belonging to a medical marijuana cooperative or collective. In either situation, the group as a whole or the group's agents must determine how to defend or assert its rights.

Traudt cannot challenge the City's application of its zoning plan to a particular piece of property because she does not own or lease a property on which Beach Cities has sought to operate a dispensary. She also cannot challenge the City's zoning ordinances that generally affect dispensaries, because she is not a dispensary. If there is a right to ensure that medical marijuana is available through a dispensary, that right is a group or corporate right, not an individual right.

Whether a dispensary is organized under California law as a cooperative or a collective, the MMPA requires that the group's operation be a nonprofit enterprise. Just because collectives and cooperatives are organized to provide goods or services to their members and distributions or dividends of both consumer and agriculture cooperatives may be given to individual members, these facts do not convert the group nature of a collective's or cooperative's activities into an individual right to resist a zoning ban.

Traudt is allegedly a member of Beach Cities, but she has no ownership interest in the collective. Even if Traudt prevailed in her lawsuit, such favorable decision may not benefit her because she does not have a voice in the decision of whether the collective will remain open. The Court held that Traudt did not have standing to pursue an appeal. Accordingly, the Court dismissed the appeal. Given the dismissal due to Traudt's lack of standing, the Court did not address the substantive merits of the action.

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, Jonathan P. Hobbs or William T. Chisum | 916.321.4500