Drug War

L.A.'s Illegal Ban on Medical Marijuana Dispensaries

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As Brian Doherty noted last night, the Los Angeles City Council yesterday voted unanimously to impose a blanket ban on medical marijuana dispensaries, including all 763 currently registered with the city. On its face, that vote conflicts with a ruling issued a few weeks ago by California's 2nd District Court of Appeal, which has jurisdiction over Los Angeles. As Los Angeles Times editorial writer Dan Turner pointed out before the city council's vote, the appeals court overturned a ban on medical marijuana dispensaries in unincorporated parts of Los Angeles County, concluding that the ordinance was pre-empted by state law.

The Medical Marijuana Program Act of 2003, which was intended to clarify the Compassionate Use Act of 1996, aimed to "enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." Toward that end, it exempted the people overseeing such projects from prosecution not only for cultivation but also for possession with intent to sell; selling, furnishing, or giving away marijuana; or maintaining a place for those purposes. Those provisions, the appeals court concluded, show the legislature "contemplated a dispensary function by collective or cooperative cultivation projects." Furthermore, language subsequently added to the law repeatedly refers to the treatment of a "medical marijuana cooperative, collective, dispensary, operator, establishment, or provider" (emphasis added) and "expressly contemplates that a 'medical marijuana cooperative, collective, dispensary, operator, establishment, or provider' may have a 'storefront or mobile retail outlet.'" Since the legislature "contemplated the lawful operation of medical marijuana dispensaries" and "expressly immunized that activity from nuisance abatement," the court ruled, L.A. County's ordinance conflicted with state law, which allows local regulation of dispensaries but not complete bans. 

The same reasoning should render L.A.'s dispensary ban invalid as well. Although the city council might argue that its plan to consider exempting dispensaries that were operating prior to a 2007 moratorium makes a difference, the policy it approved yesterday amounts to prohibition, not regulation. Speaking of which, the 2nd District Court of Appeal last year overturned Long Beach's system for licensing and regulating dispensaries on the grounds that it went "beyond decriminalization into authorization," thereby violating the federal ban on marijuana. But as I pointed out last December, that decision still left Los Angeles free to impose restrictions on dispensaries' hours, locations, and business practices. Instead of reformulating its regulatory plan to comply with last year's appeals court ruling, the city council opted for a ban that violates this month's appeals court ruling.

The 4th District Court of Appeal has taken a different view of California's medical marijuana laws, upholding bans in Riverside and Lake Forest. The California Supreme Court is reviewing both of those decisions. In the meantime, Los Angeles should be complying with the law as interpreted by the appeals court for its district. A ban that forces hundreds of businesses to close is exactly the sort of thing you don't do while waiting for the courts to clarify the law.

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  1. You know who else opted for a ban that violates an appeals court ruling instead of reformulating its regulatory plan to comply with a previous appeals court ruling…

    1. George Wallace?

  2. I don’t understand. Do Angelinos want pot or not?

    1. Yes, but only the old-fashioned way. From violent gangsters.

    2. The fact that there has been sufficient business to sustain hundreds of dispensaries around the city for years would indicate that they do.

      But the wise and beneficent leaders of the city council apparently know better.

      1. This so-called governance that Californians experience… its only consistent features appear to be banality and arbitrariness.

  3. A ban that forces hundreds of businesses to close is exactly the sort of thing you don’t do while waiting for the courts to clarify the law.

    What are you talking about?

    This is how government creates jobs. They use the force of the state to shut down hundreds of businesses that are providing jobs to thousands of employees, vendors, etc.

  4. Here’s some free legal information from me, a California lawyer who specializes in legal research.

    Jacob wrote: “California’s 2nd District Court of Appeal … has jurisdiction over Los Angeles.” Actually, each California District Court of Appeal has statewide jurisdiction, and its decisions bind the entire state, not only Los Angeles. By the same token, a decision of the Fourth District Court of Appeal is binding in L.A. Where, as appears to be the case here, there are conflicting decisions, each local court (or other entity) is free to follow whichever decision it feels is correct. Also, where the California Supreme Court grants review, that vacates the Court of Appeal decisions.

    So the First District decision is only binding on the City of Los Angeles if (1) there are no conflicting California Court of Appeal decisions and (2) the California Supreme Court has not granted review. Both of those exceptions appear to apply here, so we will not know whether LA’s ban is legal until the State Supreme Court decides the issue.

    1. While the California Supreme Court has agreed to review the 4th District’s decisions upholding local dispensary bans (which, I assume, is why the names of the cases are crossed out on the appeals court’s website), it has not, as far as I know, agreed to review this month’s 2nd District decision overturning a local dispensary ban. Doesn’t that make the latter decision binding?

      1. Unless the Supreme Court has stayed teh 4th District decision upholding the bans, it is still in effect, and LA could elect to go by it rather than the 2nd District opinion striking the bans, as LA is not a party to either case.

        I think? I dunno, I am not a CA lawyer.

      2. Yes, it does make the newer decision binding, as the Supreme Court has not granted review (yet) but has granted review of the two prior cases upholding bans on dispensaries. Also, the fact that the Supreme Court granted review may indicate that it disagrees with those prior cases, and feels that such bans violate the law, although it is risky to make predictions based solely on a grant of review. Also, there is still time for the Supreme Court to grant review of this case.

  5. the ordinance was pre-empted by state law

    which is pre-empted by federal law

    1. which is pre-empted by executive fiat

  6. why dont they do it the old fashioned way?…inspect then re-inspect the deficient remedies until all the expected violations force closure.

  7. Where the heck is “the LAW is the LAW, blah, blah, blah” crowd when authorities decide to break the law and violate their Oath? Up in the peanut gallery cheering that lawbreaking like the hypocritical partisan hacks that they are is where.

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