10B Action 2012 0702 - Laserfiche WebLink

Home

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