Friday, January 15, 2016
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C.A. Rejects Latest Challenge to Los Angeles Proposition D
New Statute Does Not Preempt Local Regulation, Panel Emphasizes
By a MetNews Staff Writer
The City of Los Angeles ordinance regulating medical marijuana businesses survived its latest court challenge yesterday.
“In this appeal we reiterate what other appellate courts, including our Supreme Court, have already held – there is no constitutional or statutory right to possess, cultivate, distribute, or transport marijuana for medical purposes,” Justice Laurence Rubin wrote for Div. Eight of this district’s Court of Appeal.
The ruling addressed a number of challenges to Proposition D, which voters approved in 2013. Among other things, it held—as did the Los Angeles Superior Court Appellate Division in a published ruling in November, in People v. Optimal Global Healing, Inc.—that 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.
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.
“The City argues…that the Zoning Act requirements apply only to the enactment of ordinances by local legislative bodies and not to the enactment of ordinances by initiative or referendum (whether in a charter city or general law city),” Rubin explained. “The City is correct.”
While the appeal was pending, Rubin noted, the court asked for supplementary briefing on the impact, if any, of a new state law, the Medical Marijuana Regulation and Safety Act, or MMRSA. The new law, among other things, creates a state licensing scheme for medical marijuana.
But MMRSA does not preempt Proposition D or other local regulations, Rubin explained, rejecting the plaintiffs’ contention that the statute establishes that medical marijuana is a matter of statewide concern.
He wrote:
“We dispose quickly of appellants’ claim that MMRSA preempts local medical marijuana regulation in general or Prop D in particular. MMRSA expressly addresses both issues. It first states that nothing in its regulatory scheme ‘shall be interpreted to supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements.’…It then states that issuance of a state medical marijuana license ‘shall in no way limit the ability of the City of Los Angeles to prosecute any person or entity for a violation of, or otherwise enforce, Proposition D . . . .’ We can imagine no clearer legislative rejection of appellants’ argument.”
The case is Safe Life Caregivers v. City of Los Angeles, 16 S.O.S. 261.
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