Compassionate Use Act and Medical Marijuana Program Do Not Preempt a Municipality’s Police Power to Prohibit the Cultivation of Marijuana

Overview: A California court of appeal recently affirmed a trial court’s dismissal of a lawsuit challenging a city ordinance prohibiting the cultivation of marijuana within the city limits. Applying the ruling in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) to this case, the court held since it had already been determined the Compassionate Use Act (CUA) and Medical Marijuana Program (MMP) do not preempt the authority of cities and counties to regulate and prohibit facilities that distribute medical marijuana, the same reasoning should apply to the cultivation of medical marijuana. As a result, the court held the CUA and MMP do not preempt a city’s police power to prohibit the cultivation of all marijuana within the city.

Training Points: Prior to passing a similar ordinance, cities and counties can take guidance from the factual findings made by the Live Oak City Council, which the court highlighted in its ruling. Marijuana-related ordinances should consider factual findings similar to the following:

• The cultivation of medical marijuana has had significant impacts or the potential for significant impacts on the jurisdiction;
• The significant impacts on the jurisdiction include damage to buildings, dangerous electrical alterations and use, inadequate ventilation, increased robberies and other crime, and the nuisance of strong and noxious odors;
• Possession and cultivation of marijuana is illegal under federal law and the jurisdiction did not wish to violate federal law.

Summary Analysis: In Maral v. City of Live Oak, the city council passed an ordinance prohibiting the cultivation of marijuana for any purpose within the city. Maral, on behalf of the Live Oak Patients Caregivers and Supporters Association (Plaintiffs) brought suit against the city challenging the ordinance on the grounds the ordinance violated the CUA, the MMP, equal protection and due process. Plaintiffs argued the CUA and MMP grant them the right to cultivate medical marijuana. In rejecting this argument, the court cited to the Supreme Court’s recent ruling in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) where the court held the CUA and the MMP do not preempt the authority of cities and counties to regulate, and even prohibit, facilities that distribute marijuana. (A case BB&K attorneys successfully argued for the City of Riverside.)