Tuesday, May 24, 2016
C.A. Rejects Challenge to County Marijuana Ban
By a MetNews Staff Writer
The Court of Appeal for this district yesterday rejected a challenge to Los Angeles County’s ban on medical marijuana dispensaries (“MMD”s) on the ground that it discriminates against those who are disabled or suffer medical conditions.
While holding that proprietors of MMDs have no standing to put forth contentions on behalf of their customers as to a right of access to marijuana, the appeals court nonetheless addressed the merits
Div. Two, in an unpublished opinion by Presiding Justice Roger Boren, upheld a preliminary injunction issued by Los Angeles Superior Court Judge Rita Miller against operations of Acme Silver Place in Hacienda Heights, an unincorporated area of the county. The ban enacted by the Board of Supervisors applies only to those areas.
Boren noted that the Compassionate Use Act of 1996 authorized marijuana use by “serious ill Californians,” and that the 2003 Medical Marijuana Program “enhances the access of qualified patients to medical marijuana.” Nonetheless, he said, the substance remains subject to a federal ban and local regulation.
Disabled Persons Act
The MMD operators argued that the county ordinance violates the California Disabled Persons Act (“DPA”) which provides, in Civil Code §54(a):
“Individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other public places.”
“Apart from defendants’ lack of standing, the DPA is not designed to ensure access to marijuana.”
It has been held that the DPA, as well as the Unruh Civil Rights Act, are aimed at providing “physical” access, by eliminating “architectural barriers,” he explained.
Boren also found unavailing reliance on the Americans with Disabilities Act (“ADA”) which proscribes denial of benefits by public agencies to a “qualified individual with a disability.”
The jurist again noted the MMD operators’ lack of standing—saying that “on the record before us, defendants are able-bodied business people hoping to make money by selling marijuana”—but discussed the contention, anyway.
He said that because “federal law does not authorize the plaintiffs’ medical marijuana use,” the court must “necessarily conclude that the plaintiffs’ medical marijuana use is not protected by the ADA.”
“The 2015 enactment of an appropriations bill that prohibits the use of federal funds for drug enforcement actions in states that authorize medical marijuana, does not enlarge the ADA to create a federal ‘right’ to sell or use marijuana. The ADA does not apply to defendants.”
That prohibition came in a rider, sponsored by two California members of Congress—Dana Rohrabacher, R-Orange County and Sam Farr, D-Monterey County—to the omnibus spending bill.
The case is County of Los Angeles v. Acme Silver Place, B262874.
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