Medical Marijuana Dispensaries 0 for 3 Against Local Government

By Cori Badgley

After the Medical Marijuana Program Act was adopted by the legislature in 2003, medical marijuana dispensaries began cropping up throughout counties and cities that had no existing zoning or permit scheme in place for such establishments. In reaction to these dispensaries and the Act, many counties and cities began the process of establishing medical marijuana dispensary ordinances. One such county is the County of Los Angeles. Based on its ordinance, the County of Los Angeles brought a nuisance action in superior court against a dispensary, the Alternative Medicinal Collective of Covina, and the dispensaries owner/operator, Martin Hill. The trial court granted a preliminary injunction against the dispensary, and the dispensary appealed in County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861.

The county’s ordinance requires that dispensaries obtain a conditional use permit and business license and prohibits dispensaries within 1000 feet of “schools, playgrounds, parks, libraries, places of religious worship, child care facilities, and youth facilities.” Dispensaries are permitted in the C-1 zone as long as they meet the above requirements.

The dispensary launched a barrage of arguments against the ordinance and the county’s actions in enforcing the ordinance in an attempt to overcome the preliminary injunction. The dispensary argued: 1) The ordinance is preempted by state law; 2) The ordinance is inconsistent with state law both on its face and as applied; and 3) The ordinance is unconstitutional because it violates the Equal Protection Clause.

As to the first two arguments, the dispensary had an uphill battle because of prior case law and the recent enactment of Health and Safety Code section 11362.768. In 2009, the Court of Appeal, Second Appellate District already decided that the Act did not preempt local government from regulating medical marijuana dispensaries. (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153; see our previous article entitled “City Not Required to Zone for Medical Marijuana Dispensaries”.) Then in 2010, the legislature enacted Health and Safety Code section 11362.768, which states among other things, “Nothing in this section shall prohibit a [county] from adopting ordinances or policies that further restrict the location or establishment of a medical marijuana … dispensary …” The appellate court found, based on the above as well as other statutes in the Act, that the Act in no way preempts the ordinance, and that the county properly regulated the dispensaries within its jurisdiction.

As to the third argument, the appellate court again found that the dispensary’s argument had no merit. The dispensary attempted to argue that because the dispensaries were not allowed to operate in the same zones as pharmacies, the ordinance violated the Equal Protection Clause. The court disagreed. According to the court, the county had a rational basis for finding that dispensaries pose different risks from pharmacies and should therefore be regulated differently.

Finding in favor of the county on all arguments, the appellate court upheld the preliminary injunction. It is likely that the county will go on to win its nuisance action, resulting in a closure of the dispensary until such time as the dispensary fulfills the requirements in the ordinance.

This is the third published appellate case in California in which dispensaries have attempted to overturn local regulation, and so far, local government has won every time. Only time will tell what the limits on local government’s power in relation to regulation of dispensaries will be.

For other articles on cases dealing with medical marijuana dispensaries, see “City Not Required to Zone for Medical Dispensaries,” and “A Wolf in Sheep’s Clothing is Still a Wolf: Court Denies Medical Marijuana Case on Statute of Limitations Grounds.”

Cori Badgley is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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