Metropolitan News-Enterprise


Thursday, September 26, 2013


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High Court Revives Portion of C.A. Opinion Upholding City of Los Angeles Medical Marijuana Regulation


By a MetNews Staff Writer


The California Supreme Court yesterday granted partial republication of a Court of Appeal opinion upholding a 2010 City of Los Angeles ordinance regulating medical marijuana dispensaries.

The justices, at their weekly conference in San Francisco, said the city had shown good cause why a portion of last year’s opinion of Div. Eight in 420 Caregivers, LLC v. City of Los Angeles (2012) 207 Cal.App.4th 703 should be citable as precedent.

Div. Eight ruled in July of last year that it was clear “from cases decided and a statute enacted after the trial court rendered its decision” that there was no constitutional bar to, and no state statutory preemption of, the city’s law.

The opinion was automatically depublished when the Supreme Court granted review, while deferring briefing pending its consideration of several other cases involving local regulation of medical marijuana dispensaries.

One of those cases, City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, resulted in a ruling that the state’s medical marijuana laws do not preempt ordinances that make it impossible for dispensaries to operate within a particular locality. Following that ruling, the Supreme Court dismissed review in 420 Caregivers. The city then asked that the high court order republication of those portions of the opinion that did not deal with the preemption issue.

The high court, without dissent, agreed, while emphasizing that under California Rules of Court, rule 8.1120(d).), “A Supreme Court order to publish is not an expression of the court’s opinion of the correctness of the result of the [Court of Appeal’s] decision or of any law stated [therein].”

The 2010 ordinance regulated the number and geographic distribution of dispensaries within the city, in part by shutting down those that had sprung up since the city adopted an interim ordinance in 2007, as well as those that were operating at that time but failed to register as that ordinance required.

The law required previously registered dispensaries or collectives to reregister and provided for a gradual reduction in the number of dispensaries, which were to be distributed throughout the city on the basis of population density. Collectives cited for legal violations or have changed ownership were barred from re-registration  and those located near schools, libraries, parks, other collectives, or in other inappropriate locations were required to close or move.

The law also created recordkeeping and disclosure requirements designed to make it possible to determine whether those served by the clinics were actually qualified to use marijuana under state law. It was in many respects similar to Measure D, the new dispensary regulation law approved by city voters last spring.

Los Angeles Superior Court Judge Anthony Mohr enjoined enforcement of parts of the 2010 ordinance  concluding that limiting registration to those registered under the prior ordinance violated equal protection; that state law precluded the city from criminalizing violations of its own ordinance; that shutting down collectives that did not register under the interim ordinance without a hearing violated due process; and that the recordkeeping and disclosure rules violated the state Constitution’s privacy clause.

The Court of Appeal, however, rejected all of Mohr’s conclusions.

There was no equal protection violation, Los Angeles Superior Court Judge Douglas Sortino—sitting on assignment—wrote, because the city rationally distinguished between those collectives that have been operating longer, and which made an honest attempt to comply with the law, from those that have only opened recently or refused to comply with the earlier law.

The plaintiff clinics, he said, failed to satisfy their burden of showing that the distinction fails to serve a legitimate government purpose.

The jurist also brushed aside the trial judge’s due process concerns, noting that the city could only shut down a clinic or punish its operators by initiating civil or criminal proceedings, in which the operators would have full resort to normal statutory and constitutional procedural protections.

Nor, he said, did the right to privacy preclude the law’s enforcement. He  emphasized the heavy burden that the clinics had to meet to prevail in a facial challenge, and said they failed to show that the law would necessarily result in invasions of their privacy or those of their members.

“There was, he noted, a good deal of evidence presented to the trial court that many “so-called medical marijuana collectives” are actually for-profit businesses, and that enough of them are engaged in criminal activity to force considerable expenditure of police resources.

“Under these circumstances, it would be entirely irrational to accord marijuana collectives – as entities – greater privacy rights than pharmacies involved in the distribution and use of traditional prescription drugs,” he wrote. “We find that any expectation of privacy by a collective in the limited, and nonintimate, information sought by the Ordinance to be unreasonable.”


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