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10B Action 2012 0702
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10B Action 2012 0702
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CM City Clerk-City Council - Document Type
Staff Report
Document Date (6)
7/2/2012
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File Number: 12 -341 <br />medical marijuana dispensaries in the City of Riverside. The California Supreme Court <br />granted review of the Riverside case, as well as Pack v. City of Long Beach ( holding that <br />some dispensary regulations may be preempted by federal law) in January 2012. Those <br />cases have not yet been set for hearing. <br />In February 2012, however, in City of Lake Forest v. Evergreen Holistic Collective, Division 3 <br />of the Fourth District struck down a local ban on medical marijuana dispensaries in the City of <br />Lake Forest. In both Riverside and Lake Forest, the cities brought abatement actions against <br />local dispensaries, arguing that their operation violated the zoning code and was consequently <br />a per se public nuisance. Riverside's zoning code expressly prohibits medical marijuana <br />dispensaries within the city, while Lake Forest's zoning code prohibits "uses that were not <br />enumerated" within it. The Supreme Court granted certiorari in the Lake Forest decision on <br />May 16, 2012. <br />The court in City of Riverside found that Riverside's zoning ordinance banning dispensaries <br />did not contradict the two California medical marijuana statutes that permit them, the <br />Compassionate Use Act (CUA) and the Medical Marijuana Program Act (MMPA). It held that <br />although the MMPA expressly declared that dispensaries are not subject to nuisance <br />prosecution under state nuisance laws, this prohibition on prosecution did not extend to local <br />nuisance laws. Accordingly, Riverside could ban dispensaries under its own law. The court <br />followed precedent for a narrow reading of Civil Code section 3482, which provides that <br />"nothing which is done ... under the express authority of a statute can be deemed a <br />nuisance," noting that the state marijuana statutes do not prohibit zoning bans on marijuana <br />dispensaries. The court further held that State law did not expressly or implicitly occupy the <br />field of marijuana regulation to the exclusion of local controls. <br />The court in City of Lake Forest reached the opposite conclusion, holding that Lake Forest's <br />ban on dispensaries directly conflicted with State law. The court held that the CUA and MMPA <br />precluded all nuisance prosecutions, not only state nuisance prosecutions. It further ruled that <br />Civil Code section 3482, even when narrowly read, barred Lake Forest's nuisance suit <br />because dispensary activity is exactly the activity legislatively authorized by the CUA and <br />MMPA. The ruling in City of Lake Forest is narrow. The court construed the MMPA and CUA <br />only to authorize dispensaries that also contain grow- sites. Thus, dispensaries operating in <br />isolation from grow -sites are not protected from public nuisance suits. The court also <br />cautioned that state law only preempts complete bans on medical marijuana dispensaries <br />within a city; it does not prevent cities from restricting the locations of dispensaries or <br />otherwise regulating them. <br />DISCUSSION <br />The two conflicting cases present two possible avenues for the Supreme Court's analysis in <br />City of Riverside. Of the two opinions, the League of California Cities believes that City of <br />Lake Forest appears to be the better - reasoned and supported. That court analyzed the text <br />and the intent of the CUA and MMPA to find that state law preempted Lake Forest's zoning <br />prohibition on medical marijuana dispensaries. In addition to relying on the state statutory <br />exemptions from nuisance prosecutions, the court correctly cited the statutory purposes of the <br />CUA and MMPA -to provide distribution of medical marijuana to all patients who need it and <br />promote uniform application of the Acts across California counties. Local zoning bans would <br />City of San Leandro Page 3 Printed on 612612012 <br />
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