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

by Miller Starr Regalia

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.”

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Miller Starr Regalia

Miller Starr Regalia on:

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