Metropolitan News-Enterprise


Thursday, January 19, 2012


Page 3


State Supreme Court Agrees to Review Cases on Medical Marijuana




The California Supreme Court yesterday agreed to review three Court of Appeal decisions dealing with the scope of medical marijuana use permitted by California’s Proposition 215.

The justices, at their weekly conference in San Francisco, granted review in Pack v. Superior Court (2011) 199 Cal.App.4th 1070, City of Riverside v. Inland Empire Patient’s Health and Wellness Center, Inc. (2011) 200 Cal.App.4th 885, and People v. G3 Holistic, E105663, which was decided in an unpublished opinion.

The vote was unanimous in each instance.

In Pack, Div. Three of this district’s Court of Appeal ruled that a Long Beach ordinance designed to regulate medical marijuana collectives was at least partially preempted by federal law. In the other two cases, the Fourth District’s Div. Two held that cities, using their land use powers, can completely ban collectives.

The Pack court said the city’s permit scheme is inconsistent with the federal 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, Justice Walter Croskey wrote.

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.

Long Beach Suit

The city was sued by members of cooperatives that were directed to cease operations in August 2010 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, the justice said.

The Fourth District cases involve ordinances in the cities of Riverside and Upland. Those municipalities sought to abate the clinics as public nuisances, and the trial court and Court of Appeal agreed they could do so, both as prohibited uses under the ordinances and because they operate in violation of federal law.

Upland Case

 Roger Jon Diamond, a Santa Monica attorney who represents G3 Holistic in Upland, argued that by enacting Proposition 215, also known as the Compassionate Use Act of 1996, the state has preempted local bans. Diamond told the MetNews that he accepts the authority of cities to impose zoning regulations on the dispensaries, but says there has to be some room for them to operate.

The attorney, a longtime advocate for the adult entertainment industry, analogized to adult bookstores and strip clubs, whose operations, courts have said, can be restricted under land use laws but not prohibited outright.

Diamond added that he will be in San Bernardino Superior Court today arguing that his client has a right to operate until the high court decides the case, based on a prior writ of supersedeas. Upland, which is represented by the firm of Richards, Watson & Gershon, has acted “like a rabid dog,” trying to shut his client down while the case is being litigated, Diamond said.

In other conference action, the justices:

Denied review of a State Bar Court ruling that upheld the disbarment of Richard I. Fine. The Los Angeles attorney lost his license in 2009 after the bar court ruled he had engaged in moral turpitude by filing a stream of what the panel called frivolous motions and lawsuits disparaging judicial officers who had ruled against him in various matters.

Fine, who has claimed to be the target of a vendetta by those judicial officers and by State Bar officials, moved to have the disbarment order set aside as void, but the Review Department found no grounds to do so.

Depublished the opinion of this district’s Div. Eight in Yuin University v. Korean Broadcasting System (2011) 199 Cal.App.4th 1098, but left the Court of Appeal’s decision standing. 

That court upheld the dismissal of a defamation action against a Korean-language news company over its broadcast of a story which characterized an unaccredited university in Compton as a “degree factory.” The panel said a Sept. 2, 2007 KBS story about Yuin University, which asserted that the school “confer[s] degrees to persons who have not properly studied at their place,” was not actionable when considered in context. 


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