The California Supreme Court recently resolved the issue of whether a city could enact zoning ordinances prohibiting and banning medical marijuana dispensaries. The Supreme Court held that state medical marijuana laws do not preempt a local ban on medical marijuana dispensaries. (City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., (--- P.3d ----, 2013 WL 1859214 (Cal.).) The Court concluded that cities, exercising their traditional and constitutional police powers, may prohibit medical marijuana dispensaries within their borders if they so choose.
The City of Riverside (“City”) had declared through its zoning ordinances that medical marijuana dispensaries are prohibited land uses. Those ordinances defined “medical marijuana dispensary” as “[a] facility where marijuana is made available for medical purposes in accordance with” the Compassionate Use Act of 1996. The City’s ordinances also provide that a medical marijuana dispensary may be abated as a public nuisance.
Inland Empire Patients Health and Wellness Center, Inc. (“Inland Empire”), in conjunction with other property owners, tenants and operators, had operated a medical marijuana distribution facility in the City of Riverside since 2009. The City’s Community Development Department notified the operators that the City’s zoning ordinances ban medical marijuana dispensaries, collectives, and cooperatives, and that the operations must cease. When the City did not secure voluntary compliance with its ordinances, the City filed a complaint against Inland Empire and related persons and entities. The complaint alleged that the defendants were violating the City’s zoning ordinances by operating a medical marijuana distribution center, which constitutes a public nuisance. The complaint sought an injunction against operation of the facility.
The trial court issued a preliminary injunction prohibiting the defendants from using the subject property, or allowing the property to be used, for “any activities or operations related to the distribution of marijuana.” The Court of Appeal affirmed the decision of the trial court. The Supreme Court granted review of the Court of Appeal’s decision.
Supreme Court Decision
The Supreme Court held that the Compassionate Use Act of 1996 (“CUA”) and the Medical Marijuana Program (“MMP”) do not preempt local governments from banning facilities that distribute medical marijuana. The CUA, enacted by the electorate in 1996, “provides that the state law proscriptions against possession and cultivation of marijuana ([Health and Safety Code] §§ 11357, 11358) shall not apply to a patient, or the patient’s designated primary caregiver, who possesses or cultivates marijuana for the patient’s personal medical purposes upon the written or oral recommendation or approval of a physician.” The Legislature adopted the MMP in 2004. The MMP provides that qualified patients and their primary caregivers, who associate within the State to collectively or cooperatively cultivate marijuana for medical purposes, shall not be subject to certain state criminal sanctions solely on the basis of the fact that they collectively or cooperatively cultivate marijuana for medical purposes.
The Supreme Court noted that it has “consistently maintained that the CUA and the MMP are but incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed.” The CUA and the MMP “merely declare that the conduct they describe cannot lead to arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the Health and Safety Code.” The Court concluded that “[n]othing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders.”
The California Constitution provides that “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” Land use regulation has historically been a function of local government. Where local legislation conflicts with state law, the local legislation is void. Here, the Supreme Court concluded that the City’s ordinances do not conflict with the CUA and the MMP and therefore the City’s ordinances are not preempted.
The Supreme Court noted that in City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, the Court of Appeal concluded that “[n]either the CUA nor the MMP compels the establishment of local regulations to accommodate medical marijuana dispensaries.” The Supreme Court also discussed County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, wherein the Court of Appeal similarly concluded that a local jurisdiction was not preempted by the CUA or the MMP “from applying its zoning and business licensing powers to regulate medical marijuana dispensaries.” The Hill court concluded that the “‘collective cultivation’ provision of the MMP, [Health and Safety Code] section 11362.775, ‘does not confer on qualified patients and their caregivers the unfettered right to cultivate or dispense marijuana anywhere they choose.’”
The Supreme Court found that neither the CUA nor the MMP expressly or impliedly preempted City ordinances that declare medical marijuana dispensaries “to be a prohibited use, and a public nuisance, anywhere within the city limits.” The CUA does not mention medical marijuana cooperatives, collectives, or dispensaries. Although the MMP addresses the collective or cooperative cultivation and distribution of medical marijuana, it does so in “narrow and modest terms.” The MMP does not explicitly guarantee the availability of locations where the cultivation and distribution of medical marijuana may occur or restrict a local jurisdiction’s authority to regulate zoning and land use planning within its borders. The MMP does not require that local zoning and licensing laws must accommodate the cultivation and distribution of medical marijuana. The Supreme Court found no evidence that the Legislature intended to preclude local governments from regulating facilities that dispense medical marijuana.
The Court found that the CUA and the MMP, “both carefully worded, do no more than exempt certain conduct by certain persons from certain state criminal and nuisance laws against the possession, cultivation, transportation, distribution, manufacture, and storage of marijuana.” Although the MMP exempts the cooperative or collective cultivation and distribution of medical marijuana in certain circumstances from state law criminal penalties that would otherwise apply, it “does not thereby mandate that local governments authorize, allow, or accommodate the existence of such facilities.” The MMP does not provide “any actual limitation on local land use or police power regulation of facilities used for the cultivation and distribution of marijuana.”
The Court concluded that that the limited provisions of the MMP “neither expressly [n]or impliedly restrict or preempt the authority of individual local jurisdictions to choose otherwise for local reasons, and to prohibit collective or cooperative medical marijuana activities within their own borders.” The Court found that a local jurisdiction may choose to prohibit collective or cooperative medical marijuana activities “by declaring such conduct on local land to be a nuisance, and by providing means for its abatement.”
What This Means To You
The Supreme Court’s decision is significant. It finally resolves the question of whether cities have the right to ban medical marijuana dispensaries within their jurisdiction. This question had been addressed by trial courts and lower appellate courts with varying, and somewhat conflicting, results. The Supreme Court’s decision brings clarity and finality to this question, leaving the decision to local municipalities to decide on their own whether to permit, regulate, or ban medical marijuana dispensaries, taking into consideration local policies. The case also has a broader impact. The Supreme Court’s decision recognizes the deference that is properly due to cities in determining appropriate community and land use planning within their jurisdiction since, absent clear preemption by the state, these decisions are best made at a local level.
For a more in depth discussion of the Kruse case, see our previous Legal Alert entitled, “Operation Of Medical Marijuana Dispensary Without Approval By City Constituted A Nuisance Per Se And Operation Could Be Enjoined Without A Showing Of Actual Harm,” October 15, 2009.
For further information on the Hill case, see our previous Legal Alert entitled, “State Law Does Not Preempt Local Ordinances Regulating Medical Marijuana Dispensaries,” February 20, 2011.
For more information on recent decisions involving the regulation of medical marijuana collective, cooperatives, and dispensaries, see the following Legal Alerts:
Court Of Appeal Upholds City’s Ban On Medical Marijuana Dispensaries, April 5, 2013
Court Of Appeal Clarifies Limits Of Legal Protection Provided To Medical Marijuana Collectives, Cooperatives And Dispensaries Under The CUA And The MMPA, April 27, 2012
California Supreme Court Takes Up Issue of Local Regulation of Medical Marijuana Dispensaries, January 25, 2012
Medical Marijuana Patient Cannot Challenge Alleged Zoning Ban On Dispensaries, October 26, 2011
Federal Law Preempts City’s Medical Marijuana Ordinance, October 26, 2011
Federal Regulation of Marijuana Does Not Preempt California’s Decision to Decriminalize Medical Marijuana Under State Law, September 14, 2010
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.
Jonathan P. Hobbs or Mona G. Ebrahimi | 916.321.4500