Enacting and Enforcing Local Ordinances to Prohibit Medical Marijuana Dispensaries – Up in Smoke?

by Miller Starr Regalia
Contact

California’s cities and counties have a long and growing track record successfully defending challenges to their land use authority filed on behalf of medical marijuana dispensaries.  These successes are largely a product of the broad and deep police power conferred to cities and counties under the California Constitution and the federal government’s inclusion of (and ongoing refusal to remove) marijuana from Schedule I of the Controlled Substances Act.  Schedule I drugs (including heroin and ecstasy) are defined as drugs with “no currently accepted medical use and a high potential for abuse.”  The federal government considers them “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.”

The states, of course, are the nation’s laboratories for democracy.  As such, following California’s lead, and in the face of the Controlled Substances Act, half of the states now allow marijuana use in a variety of contexts.  Cheech and Chong would approve.

The courts have held, however, that California’s Compassionate Use Act and Medical Marijuana Program provide limited exceptions to the sanctions that would otherwise apply where marijuana is possessed, cultivated, distributed, and transported.  They have also held those laws have no effect on the federal enforceability of the Controlled Substances Act in California and that they have a “narrow reach,” providing only a “limited immunity from specified state marijuana laws.”  In addition, the courts have held the CUA and MMP do not preempt a city’s zoning regulations declaring medical marijuana dispensaries to be a prohibited use and a public nuisance anywhere within city limits.  Furthermore, the Ninth Circuit has held that medical marijuana use is not protected by the Americans with Disabilities Act because the ADA defines illegal drug use by reference to federal law, not state law, and federal law does not authorize medical marijuana use.

Given this legal landscape, it is no surprise the Court of Appeal for the Second Appellate District, in an opinion filed July 12, 2016 and certified for publication August 4, 2016, affirmed a trial court judgment dismissing a complaint that Long Beach discriminated against a class of patients and dispensaries by enacting and enforcing ordinances that initially regulated (so as to not allow, because any use not enumerated in the municipal code is presumptively prohibited) and then expressly prohibited the operation of dispensaries within City limits.

In The Kind and Compassionate v. City of Long Beach, __ Cal.App.4th __ (2016) (Case No. B258806), plaintiffs alleged that the City’s code enforcement actions violated six statutes, including the Bane Act, allowing civil actions for damages for certain misconduct that interferes with federal or state laws, if accompanied by threats, intimidation, or coercion, and section 1983 of the Federal Civil Rights Act, providing redress for the deprivation, under color of law, of any rights, privileges, or immunities secured by the federal Constitution and laws.

The Court of Appeal rejected each of the plaintiff’s claims.  As to the Bane Act claims, the court held there is no federal or state law providing the right to lease property to operate a medical marijuana dispensary, so the City could not have interfered with any such right.  As to the section 1983 claims, alleging deprivations of federal constitutional rights, including the Takings Clause of the Fifth Amendment, the court held that plaintiffs never had a vested right to operate a dispensary in the City and so could not state a claim for such deprivation.

The Kind and Compassionate is consistent with the now extensive line of cases that address challenges to local land use ordinances regulating medical marijuana dispensaries.  It is thus no surprise that the Court of Appeal held “[t]he city’s enforcement of its marijuana ordinances does not constitute extreme and outrageous behavior.”

Written by:

Miller Starr Regalia
Contact
more
less

Miller Starr Regalia on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.