Drug War

The Fine Line Between Tolerating and Authorizing Medical Marijuana Dispensaries


This week a California appeals court ruled that Long Beach's medical marijuana ordinance is largely pre-empted by federal law because it "goes beyond decriminalization into authorization." Like other California courts that have addressed the issue, the 2nd District Court of Appeal said creating a medical exception to state drug laws does not in itself obstruct enforcement of the federal Controlled Substances Act (CSA), which recognizes no legitimate use for marijuana. But it said Long Beach did not merely lay out the conditions that medical marijuana suppliers must meet to be exempt from criminal penalties; it established a licensing system that affirmatively permits certain dispensaries to operate. The court distinguished the city's permits, which are distributed by lottery to a subset of applicants (each of whom has to pay a $14,742 fee), from the government-issued ID cards that patients can use to avoid arrest for possession or cultivation. While the dispensary permits are necessary to operate legally in Long Beach, the court noted, the patient ID cards are optional; they merely identify people who have obtained doctor's recommendations and are therefore exempt from the state's marijuana ban. Because the city's ordinance "permits and regulates medical marijuana collectives rather than merely decriminalizing specific acts," the court said, it creates an "obstacle" to achieving the CSA's aims. And although the ordinance for the most part does not create a "positive conflict" with federal law (since it does not require anyone to open a dispensary), the court concluded that one provision does directly conflict with federal law: The ordinance requires dispensary operators, who are already violating the CSA by selling marijuana, to violate the law further by delivering marijuana to labs for independent testing, which qualifies as "distribution" under federal law.

The appeals court's reasoning casts doubt on the validity of dispensary licensing schemes in Los Angeles and other California cities as well as in states such as Colorado, New Jersey, and Arizona, where Gov. Jan Brewer has asked a federal judge to address the pre-emption issue. It is debatable whether obstacle pre-emption is the appropriate standard in this context. In the Arizona case, the American Civil Liberties Union argues that "preemption under the CSA is limited to the narrow set of circumstances in which there is a 'positive conflict' between state and federal law," meaning it is impossible to obey one without violating the other. No one is required to run a medical marijuana dispensary, the ACLU notes, and a state does not create a positive conflict simply by declining to punish people who do. But even if the California court is right, there are ways around the problem: By the court's logic, dispensary permits would be OK if they worked like patient ID cards, merely certifying that people carrying them have met the criteria for exemption from state and local penalties. The court also allows that a city may impose all manner of restrictions on dispensaries; it left in place Long Beach's rules regarding location, hours of operation, and customer age, for instance. As long as a city does not charge a fee for a mandatory permit or require independent testing of marijuana, its ordinance should pass muster under the standard applied in this case.

Still, the decision creates further legal uncertainty for dispensaries that already have to worry about federal prosecution, ruinous IRS audits, and threats to their landlords and banks. Ironically, it came in response to a challenge by dispensary operators who were shut down for violating Long Beach's ordinance. "This clearly falls into the category for the medical marijuana advocates of 'be careful what you ask for,'" City Attorney Robert E. Shannon told the Los Angeles Times. "The most logical thing to do is to ban that which we cannot regulate and permit."

The appeals court's decision is here (PDF).

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  1. The judicary will pay. The day is drawing nigh.

    1. Towelie, you’re the worst agent provocateur ever.

  2. I don’t see why the laws would be construed to conflict. It doesn’t say the dispensaries must act in violation of federal law, does it? The state law requiring samples to be sent to labs don’t say they shouldn’t register with DEA first.

    1. What happens if the labs register with the DEA?


      It would totally destroy the standard issue hysterical rhetoric that you just can’t know what those nasty Mexicans are putting on your pot which could cause you to drop dead or worse, end up a meth addict were they to allow lab testing.

  3. Can’t these states institute some sort of “Don’t ask, don’t tell” kind of policy for marijuana users?

    1. Not and collect fees of almost $15,000. That would be telling.

  4. Everything that is unpleasant must henceforth be deemed illegal.

    1. I see it as everything that is pleasant must be deemed illegal.

      1. Some moderation of the policy is needed.

  5. This is the kind of tortured horseshit you get from courts that start with the conclusion and reason backwards.

  6. This clearly falls into the category for the medical marijuana advocates of ‘be careful what you ask for

    Yeah, like anything remotely resembling a truce in the drug war.

    The most logical thing to do is to ban that which we cannot regulate and permit.

    Oh, just say “Everything not required is forbidden” and get it over with.

    1. Ha! I skimmed the article* and missed that last part

      . “This clearly falls into the category or the medical marijuana advocates of ‘be careful what you ask for,'” City Attorney Robert E. Shannon told the Los Angeles Times.

      What, medicalizing marijuana in a climate where the federal government wants absolute control over all things medical? What could go wrong?

      *mainly because this shit is getting tired and predictable…

  7. Oh, yeah – libertarians. You’re the potheads. Right. Got it.

  8. 10/18/2009

    AP Newsbreak: New medical marijuana policy issued

    Associated Press Writer

    The Obama administration will not seek to arrest medical marijuana users and suppliers as long as they conform to state laws, under new policy guidelines to be sent to federal prosecutors Monday.

    Two Justice Department officials described the new policy to The Associated Press, saying prosecutors will be told it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state laws.

    The new policy is a significant departure from the Bush administration, which insisted it would continue to enforce federal anti-pot laws regardless of state codes.


    APNewsBreak: Feds target Calif. pot dispensaries


    SAN FRANCISCO (AP) — Federal prosecutors have launched a crackdown on pot dispensaries in California, warning the stores that they must shut down in 45 days or face criminal charges and confiscation of their property even if they are operating legally under the state’s 15-year-old medical marijuana law.

    In an escalation of the ongoing conflict between the U.S. government and the nation’s burgeoning medical marijuana industry, California’s s four U.S. attorneys sent letters Wednesday and Thursday notifying at least 16 pot shops or their landlords that they are violating federal drug laws, even though medical marijuana is legal in California. The attorneys are scheduled to announce their coordinated crackdown at a Friday news conference.

    Their offices refused to confirm the closure orders. The Associated Press obtained copies of the letters that a prosecutor sent to 12 San Diego dispensaries. They state that federal law “takes precedence over state law and applies regardless of the particular uses for which a dispensary is selling and distributing marijuana.”

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  10. Anybody else here read the decision yet? I haven’t looked for discussion at the Volokh Conspiracy yet, but I’ve read the decision, and it hinges on there existing a kind of conflict between a local ordinance and federal law which to mean seems merely hortatory. It’s not clear to me that any of their citations of precedents are really applicable.

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