Friday, November 13, 2015
Panel Rejects Challenge to Marijuana Ordinance
Justices Say Public Hearing Not Required for Voter-Approved Zoning Measures
By KENNETH OFGANG, Staff Writer
State laws requiring that a hearing be held before a local planning commission prior to the adoption of new zoning restrictions do not apply to voter-approved measures, the Los Angeles Superior Court Appellate Division has ruled.
The panel, in a Nov. 5 opinion posted late Tuesday on the state courts’ website, affirmed the convictions of Demarcio Posey and Optimal Global Healing, Inc. Los Angeles Superior Court Judge Melissa Widdiefield found the defendants guilty, following a bench trial, of violating City of Los Angeles Proposition D, which regulates medical marijuana businesses.
In addition to holding the public-hearing requirement inapplicable, the appellate panel agreed with the trial judge that operating such a business in violation of the ordinance is a strict liability offense, so prosecutors do not have to prove that a defendant knew the business was non-compliant.
Proposition D makes it a misdemeanor to “own, establish, operate, use, or permit the establishment or operation of a” medical marijuana business in the city, subject to a limited immunity. To qualify for the immunity, a business must, among other things, have been operating before the city declared a moratorium on new facilities in 2007, and must not be located within 600 feet of a park, a school, a child-care facility, or another such business.
Posey incorporated Optimal Global Healing in 2012, thereafter operating its business at a West Los Angeles location both before and after the enactment of Proposition D in May 2013.
Judge Sanjay Kumar, writing for the panel, said there is no requirement under state law that a planning commission hearing precede voter approval of a zoning measure, as is required of city council-enacted measures under Government Code §§65804 and 65854.
“The removal of the ordinance from the City Council to the electorate rendered the planning commission hearing component of the Government Code inapplicable while simultaneously protecting the rights of the citizenry to (a) notice of the proposed ordinance, and (b) an opportunity to participate in the democratic process of passing the ordinance,” Kumar wrote.
In any event, the judge went on to say, the lack of a commission hearing did not prejudice the defendants. A previous draft of the ordinance was the subject of such a hearing, he noted, and the City Council—in directing the city attorney to prepare the ballot measure—specifically directed that it “include provisions substantially similar to those of the draft measure.”
Kumar also rejected the claim that the trial judge erred in finding the defendants guilty without proof of mens rea.
He cited the measure’s statement of purpose, which declared the council’s intent to address “secondary effects” of marijuana businesses, including consumption of police time and resources, disruption of neighborhoods, the gathering of transients, exposure of children to the drug, illegal drug sales, fraudulent issuance of medical marijuana recommendations, and violent crimes.
“The focus on public protection and the severity of the stated public harm weigh in favor of strict liability,” Kumar wrote. He also noted that nothing in the ordinance qualified its penal provisions by using the words “knowingly,” “willfully,” or “intentionally,” as would be expected if mens rea were a prerequisite to a conviction.
In an unpublished portion of his opinion, Kumar said there was substantial evidence that Posey personally violated the ordinance.
He noted that Posey personally obtained the business tax registration certificate for the corporation, and was the sole officer listed on the relevant corporate documents. The judge also pointed to language in the ordinance that made it sufficient for the prosecution to prove that Posey permitted the “establishment or operation” of a medical marijuana business, even if he didn’t own or operate it himself.
Nor did the one-year statute of limitations applicable to misdemeanors preclude prosecutors from using documents signed more than a year before charges were filed to prove Posey’s role in the operation of the business, Kumar explained, writing:
“Posey’s signature on the corporate documents was evidence of his participation in the unlawful activity, not the activity itself.”
Attorneys on appeal were Stanley H. Kimmel for the defendants and John R. Prosser for the city.
The case is People v. Optimal Global Healing, Inc., 15 S.O.S. 5395.
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