Wednesday, October 5, 2011
Justices Say Long Beach Marijuana Ordinance Preempted by U.S. Law
By KENNETH OFGANG, Staff Writer
A Long Beach ordinance designed to regulate medical marijuana collectives is at least partially preempted by federal law, the Court of Appeal for this district ruled yesterday.
Div. Three, in an opinion by Justice Walter Croskey, said the city’s permit scheme is inconsistent with the Controlled Substances Act because “as far as Congress is concerned, there is no such thing as medical marijuana.” Issuing permits to marijuana collectives thus serves as an obstacle to congressional intent to stamp out recreational drug use, Croskey wrote.
The justices sent the case back to the Los Angeles Superior Court to determine whether other features of the ordinance can be severed.
The ordinance, enacted last year, limits the number of collectives allowed in the city, and requires would-be operators to pay an application fee of nearly $15,000 and participate in a lottery. Those who receive permits must then pay an annual fee of $10,000 or more and comply with numerous operating restrictions, including installation of odor absorbing ventilation, fire and burglar alarm systems, and closed-circuit television monitoring, and independent laboratory analysis of samples to ensure the product is uncontaminated.
The law also makes it illegal for a person to belong to more than one collective, and for anyone to possess marijuana for any purpose, other than as provided by the ordinance. Violations may be prosecuted as misdemeanors or abated by injunction under public nuisance law.
The plaintiffs in the action ruled on yesterday were members of cooperatives that were directed to cease operations in August of last year due to non-compliance. Superior Court Judge Patrick Madden denied them a preliminary injunction, holding that the plaintiffs had unclean hands because they were “indisputably violating” the same federal law they claimed preempted the ordinance.
Croskey, however, concluded that the plaintiffs were entitled to a ruling on the merits, and that the ordinance is preempted to the extent that it purports to authorize conduct that federal law prohibits. Unlike California’s Proposition 215—the Compassionate Use Act—and the Medical Marijuana Program Act, which courts have held not preempted, the Long Beach ordinance goes beyond decriminalization by granting “nothing less than an authorization to collectively cultivate” in violation of federal law.
While it will be up to the trial judge to rule on severability, the justice said, it appears that there are a number of provisions in the ordinance that might be upheld, including a ban on medical marijuana distribution between 8 p.m. and 10 a.m., a ban on the presence of unaccompanied minors at collectives, and ban on alcohol consumption on a collective’s premises or in its parking lot, and a prohibition against locating dispensaries in residential zones or near schools.
The case is Pack v. Superior Court (City of Long Beach), B22871.
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