State Law Does Not Preempt Local Ordinances Regulating Medical Marijuana Dispensaries

February 20, 2011 | Bulletin No. 963983.2

In County of Los Angeles v. Hill, (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., February 10, 2011) a court of appeal considered whether county ordinances that prohibit medical marijuana dispensaries from dispensing marijuana anywhere in the unincorporated areas of the county without first obtaining the necessary licenses and permits are preempted by state law, inconsistent with state law, or violate the California Constitution’s equal protection clause.

The court held that the ordinances are neither preempted by, nor inconsistent with state law, and that they do not violate the state’s equal protection clause. Because the defendants were in violation of the county’s ordinances, the court affirmed a preliminary injunction in favor of the county precluding the defendants from operating a medical marijuana dispensary in the county. In doing so, the court confirmed that state law does not preempt local regulation of medical marijuana dispensaries.

Facts

In 1996, California voters adopted Proposition 215, commonly known as the Compassionate Use Act ("CUA"). The purpose of the CUA is to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes," to "ensure that patients and their primary caregivers who obtain and use medical marijuana for medical purposes upon recommendation of a physician are not subject to criminal prosecution or sanction," and to "encourage the federal and state governments to implement a plan to provide for safe and affordable distribution" to those in need of medical marijuana. The CUA provides "that it shall not 'be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others.'"

In 2003, the Legislature enacted the Medical Marijuana Program Act ("MMPA") to promote consistent and uniform application of the CUA. The MMPA provides for limited immunity from certain criminal prosecutions for qualified patients and their caregivers. The MMPA states, "Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article."

In June 2006, the County of Los Angeles ("County") adopted a series of ordinances to regulate operation of medical marijuana dispensaries in the County's unincorporated areas. The ordinances provide that a conditional use permit and a business license are required for the establishment and operation of any medical marijuana dispensary. The ordinances also provide that such dispensaries may "not be located within a 1,000 foot radius of schools, playgrounds, parks, libraries, places of worship, child care facilities, and youth facilities." The ordinances limit operation of dispensaries to specified commercial zones. The County's ordinances provide that any "use that does not comply with the zoning code is a public nuisance."

Defendants Martin Hill and the Alternative Medicinal Collective of Covina (collectively, "Hill") opened a medical marijuana dispensary in the County without obtaining a conditional use permit. The dispensary was also located within 1,000 feet of a public library, without a zoning variance, in violation of the County's ordinances. The County brought a nuisance abatement action against Hill seeking injunctive and declaratory relief to halt the dispensary's operations. The trial court issued a temporary restraining order and a preliminary injunction prohibiting Hill from "possessing, offering, selling, or giving away" marijuana anywhere in the unincorporated areas of the County without first obtaining the necessary permits and licenses. Hill appealed.

Decision

While the appeal was pending, the Legislature enacted Health and Safety Code section 11362.768 (effective January 1, 2011). Section 11362.768 prohibits a dispensary from operating within a 600-foot radius of a school. The new law also provides that nothing in its provisions shall prohibit a city or county “from adopting ordinances or policies that further restrict the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider.” The law also specifically states that it does not preempt local ordinances adopted prior to January 1, 2011 that regulate the “location or establishment” of medical marijuana dispensaries.

The court of appeal rejected Hill’s claim that the County’s ordinances are preempted by state law. Hill argued the ordinances are totally preempted by state law because the CUA and the MMPA fully occupy the area of the law governing medical marijuana. The court rejected this claim because the MMPA specifically states that nothing in its terms prevents a local governing body from adopting and enforcing laws that are consistent with the MMPA.

The court further found that there is no partial preemption of the County’s ordinances by state law. Hill argued that the County’s ordinances are invalid because they are inconsistent with state law and are therefore preempted. The language in the MMPA stating that nothing in its terms prevents a local governing body from adopting and enforcing laws consistent with the MMPA shows that the Legislature “expected and intended that local governments adopt additional ordinances.” The court noted that “the newly enacted section 11362.768 has made clear that local government may regulate dispensaries.” The court confirmed that the County may use nuisance abatement laws to enjoin unlawful dispensaries violating the County’s Code.

Hill further claimed the ordinances are inconsistent with the CUA and MMPA as applied because the ordinances place so many restrictions on dispensaries that it is practically impossible for them to exist in the County’s unincorporated areas. For example, Hill asserted the $11,500 application fee for a conditional use permit was prohibitive because collectives are not allowed to distribute marijuana for a fee and can only charge for overhead and operating expenses as allowed by the Attorney General’s Guidelines. The court found these facts to be insufficient to show the application fee is inconsistent with the CUA or MMPA. Hill did not present any evidence that the fee charged to a dispensary is higher than the fee charged to any other business.

The court also rejected Hill’s argument that the ordinances relegate dispensaries to remote and commercially infeasible locations. Finally, the court found that the fact that the County has not approved a single permit for operation of a dispensary does not show that the ordinances are inconsistent with the CUA and MMPA. Only two applicants have filed applications for conditional use permits to operate dispensaries. One of the applicants later withdrew his application and the County denied the other application because the proposed dispensary would have been located adjacent to single-family residences.

Finally, the Court rejected Hill’s claim that the County’s ordinances violate the California Constitution’s equal protection clause because they do not allow dispensaries to operate in the same zones as pharmacies. The court found that there are safety issues and other risk factors associated with dispensaries that are not associated with the location of pharmacies due to large amounts of cash kept at the location, the increased risk of violent crime, the negative quality of life impacts, and the concern for attracting an illegal resale market for marijuana. The court concluded that the “County had a rational basis for zoning [dispensaries] differently than pharmacies” and held there was no equal protection violation.

During the pendency of the appeal, the County had passed an ordinance banning dispensaries in all areas of the County. The ban was to stay in effect unless held “unlawful” by the Court of Appeal or Supreme Court, in which case the prior ordinances regulating dispensaries would again become effective. However, the validity of the ordinance banning dispensaries was not before the court on this appeal, and it was not addressed by the court. For cases upholding a ban on medical marijuana dispensaries, and affirming corresponding preliminary injunctions prohibiting operation of such dispensaries, see our previous Legal Alerts for City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 and City of Corona v. Naulls (2008) 166 Cal.App.4th 418.

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 | 916.321.4500