Friday, February 11, 2011
Court of Appeal Upholds Injunction Against Dispensaries in County Areas
By KENNETH OFGANG, Staff Writer
An injunction barring medical marijuana dispensaries from operating in unincorporated Los Angeles County, unless they obtain permits required by a county ordinance, was affirmed yesterday by the Court of Appeal for this district.
The Alternative Medicinal Collective of Covina and its owner, Martin Hill, claimed the ordinance is preempted by Proposition 215, the Compassionate Use Act approved by voters in 1996.
But Justice Frances Rothschild, writing for Div. One, said nothing in the initiative, or in the subsequent Medical Marijuana Program legislation, bars the county from requiring permits as long as the requirements for obtaining a permit are consistent with the state laws.
In its complaint for declaratory and injunctive relief on the ground of public nuisance, the county alleged that the collective was operating illegally because it lacked a business license, a conditional use permit, and a zoning variance to allow it to operate within 1,000 feet of a public library.
In opposition the county’s motion for preliminary injunction, Hill argued that he could not afford to pay $11,500 for a conditional use permit for his facility, which he said serves people who are “poor, disabled, or ill.” The collective, he maintained, does not distribute marijuana for profit, does not sell to non-members, and only charges members a fee to cover its overhead and operating expenses pursuant to guidelines devised by the state attorney general.
Los Angeles Superior Court Judge R. Bruce Minto rejected the collective’s argument and granted the injunction, and Rothschild said he did not err in doing so.
Legislation that took effect Jan. 1 of this year, the justice said, reiterates what the Legislature clearly determined when it passed the Medical Marijuana Program—that local governments may subject dispensaries to the same licensing and land use regulations as other businesses.
The justice also rejected an equal protection challenge to the ordinance. The defendants argued that they were being irrationally discriminated against because they were being subjected to stricter zoning that pharmacies.
Rothschild cited expert testimony that dispensaries usually operate as “cash only” businesses and that the availability of large sums of cash and marijuana make them inviting targets for violent criminals. The expert also concluded that dispensaries attract loitering and marijuana smoking on or near their premises and thus reduce the quality of life in the neighborhood.
The county also has a legitimate concern that marijuana, once dispensed to medical users, might be resold, the jurist said. “Because similar risks are not associated with the location of pharmacies, the County had a rational basis for zoning MMD’s differently than pharmacies,” she wrote.
Attorneys on appeal were J. David Nick and E. D. Lerman for the defendants and Principal Deputy County Counsel Sari J. Steel for the county.
Copyright 2011, Metropolitan News Company