Pubdate: Wed, 04 Jul 2012
Source: Long Beach Post (CA)
Copyright: 2012
Contact:  http://www.lbpost.com/
Details: http://www.mapinc.org/media/5286
Author: Greggory Moore

COUNTY BAN ON MEDPOT DISPENSARIES RULED ILLEGAL

In a decision that may have major implications for the City of Long 
Beach's ban on medical-marijuana dispensaries, an appeals court has 
ruled that a similar ban imposed by Los Angeles County is preempted 
by state law.

"[... T]he County's complete ban on all 'medical marijuana 
dispensaries,' including collectives and cooperatives authorized 
under Health and Safety Code section 11362.775, conflicts with, and 
is thus preempted by, California's medical marijuana laws," writes 
Judge P.J. Mallano in the unanimous decision handed down by the 
California Court of Appeals (2nd District) on July 2.

The case, County of Los Angeles v. Alternative Medicinal Cannabis 
Collective, et al., concerns a ban of medpot dispensaries in all 
unincorporated areas of L.A. County, a ban the County contended did 
not conflict with the Compassionate Use Act and the Medical Marijuana 
Program and was a "permissible land use regulation."

However, noting that "[t]he electorate thus 'directed the state to 
create a statutory plan to provide for the safe and affordable 
distribution of medical marijuana to qualified patients,' to 
'[e]nhance the access of patients and caregivers to medical marijuana 
through collective, cooperative cultivation projects,'" the appeals 
court found that state law "expressly authorize[s] collective, 
cooperative cultivation projects as a lawful means to obtain medical 
marijuana under California law," and that "such projects [are] beyond 
the reach of nuisance abatement under [HSC] section 11570, if 
predicated solely on the basis of the project's medical marijuana activities."

While the City's ban, LBMC 5.89, does not directly cite HSC 11570, 
its explicit rationale concerns nuisance abatement ("negative 
secondary effects"), as well as zoning (i.e., land-use) issues.

Due to the lateness of the issuance of the decision, the city 
attorney could not be immediately reached for comment.

The ruling seems to implode many arguments made in defense of the 
legality of dispensary bans. For example, it has often been argued by 
city officials that storefront dispensaries, and sales of marijuana 
therein, are not authorized by state law. However, the appeals court 
found that the Medical Marijuana Program

repeatedly refers to "medical marijuana cooperative, collective, 
dispensary, operator, establishment, or provider." ( 11362.768, 
subds. (b) (g), italics added.) Subdivision (e) of section 11362.768 
expressly contemplates that a "medical marijuana cooperative, 
collective, dispensary, operator, establishment, or provider" may 
have a "storefront or mobile retail outlet": "This section shall 
apply only to a medical marijuana cooperative, collective, 
dispensary, operator, establishment, or provider that is authorized 
by law to possess, cultivate, or distribute medical marijuana and 
that has a storefront or mobile retail outlet which ordinarily 
requires a local business license." (Italics added.) Further, an 
examination of the activities immunized by section 11362.775 reveals 
that the Legislature necessarily contemplated a dispensary function 
by collective or cooperative cultivation projects by authorizing such 
projects to maintain a place for the sale, use, and distribution of 
marijuana ( 11366); use property to grow, store, and distribute 
marijuana ( 11366.5); and possess marijuana to distribute ( 11359).

The court also found that many arguing for the legality of such bans 
"have relied upon an unduly narrow view of California's medical 
marijuana laws as providing only 'limited criminal immunities under a 
narrow set of circumstances.' [...] Although section 11362.775 refers 
to 'criminal sanctions,' it also expressly affords immunity from 
nuisance abatement actions under section 11570 [...]."

"[B]ased on this ruling, the current all out ban on medical marijuana 
dispensaries by the City of Long Beach appears to be preempted by 
state law, and cannot be enforced," said Jina A. Nam, an attorney for 
the Long Beach Collective Association, in a written statement. "The 
City Attorney's argument that dispensaries are not permitted under 
State Law is erroneous under this ruling. It also appears that if the 
City chooses one of the lesser measures such as a temporary 
moratorium or the types of regulations that were included in its old 
ordinance, that such measures would be allowed."

Monday's ruling was the second such decision handed down by a state 
appeals court since Long Beach instituted its ban. In February, the 
California Court of Appeals (4th District) "conclude[d that] local 
governments may not prohibit medical marijuana dispensaries 
altogether," and that state law "exempts qualified medical marijuana 
patients and their primary caregivers not only from criminal 
prosecution for authorized collective or cooperative activities, but 
also from nuisance abatement proceedings. Thus, the Legislature has 
determined the activities it authorized at collective or cooperative 
cultivation sites, including a dispensary function, do not constitute 
a nuisance."

(Note: the Second Appellate District includes Long Beach.)
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MAP posted-by: Jay Bergstrom