New appellate case holds cities can't ban medical marijuana dispensaries

The old adage, "When it rains, it pours," can now be applied to legal cases as well.   Cases concerning medical marijuana are being decided by the courts of appeal.  In many of those cases, the attorneys sought review before the California Supreme Court but their petitions were denied.  Now we have the Supreme Court taking up four cases, although it appears one case, Traudt v. City of Dana Point, was recently dismissed.   In Traudt, a case previously published by the Court of Appeal, Fourth Appellate District, Division Three, in Santa Ana, the appeal was dismissed after the court concluded an individual medical patient lacked standing to assert her rights to medical marijuana, and more specifically, from a dispensary in Dana Point.  Now that the appeal has been dismissed, the case is no longer citable law.

Right in the middle of my preparations to argue the Lake Forest appeals, the California Supreme Court surprised a lot of people by granting review inTraudt, Pack v. Superior Court, City of Riverside v. Inland Empire Patient's Health & Wellness Center and People v. GC Holistic, Inc..  The Court of Appeal (the same court that decided Traudt) issued its opinion in City of Lake Forest v. Evergreen Holistic Collective, 2012 Cal.App. LEXIS 239,  and my appeals, City of Lake Forest v. Lake Forest Wellness Center & Collective and Independent Collective of Orange County, which referred to Evergreen and unpublished..

In what some have described as "splitting the baby," the court came out with a decision that is both pleasing and disappointing to everyone.  This court has faced many similar lawsuits, probably read dozens of briefs on the subject, and listened to dozens of oral arguments.  So, it was no surprise when the court concluded its opinion by stating, "We recognize our conclusions today may disappoint the parties in this case and the opposing sides in California's ongoing debate concerning medical marijuana:  dispensaries, because they may wish to operate independently of cultivation sites, and some cities and other local governments, because they want to ban dispensaries altogether.  We emphasize that these are policy outcomes outside our power to reach or grant because we are constrained by the voters' and the Legislature's enactments.  Although courts will continue to resolve disputes over the meaning of the CUA and MMPA, policy choices about the role of medical marijuana in this state, including any changes or adjustments that may be made, rest ultimately with the people and their representatives."  (Id. at p. 79.)

The decision reversed a preliminary injunction requested by the City of Lake Forest, sending the case back to the superior court.  The court concluded that an absolute ban contradicted and is preempted by state law.  However, and this is a big however, while cities may not ban medical marijuana dispensaries altogether, the Legislature authorized dispensaries only at sites where medical marijuana is 'collectively or cooperatively . . . cultivate[d].'"  (Id. at p. 1-2.)  That means that when the City requests a preliminary injunction, it must show the dispensary does not grow its marijuana onsite "or otherwise failed to comply with applicable state medical marijuana law or permissible location regulations."  (Id. at pp. 2-3.)

Now before you start scratching your head, you might wait until this appeal is considered by the California Supreme Court.  The City of Lake Forest has already voted to instruct its attorneys to file a petition for review.    That petition can be filed within a 10-day window starting on March 31, 2012.  I would anticipate that review will be granted.  Cities are already facing applicants for licenses who come armed with a copy of this decision.  One might expect the cities to delay action until they hear from the Supreme Court.  As an alternative, they may pass restrictive regulations dealing with on-site cultivation.  While in theory it could be argued that the case is somewhat favorable to medical marijuana proponents, the difficulties of growing on-site will prevent many dispensaries from being able to comply.  In a few months, this dilemma may be moot and we will be facing ongoing legal battles as we wait for a decision from the Supreme Court.

Comments

[Elba Cook]

Like everyone has said, regulate it, and use the taxes for the problems we have with SS and schools.