After nearly 17 years, will the CA Supreme Court rule “public nuisance” zoning laws may be used to circumvent safe access for medical cannabis in California?
By Lauren Payne | February 16, 2013While elected officials throughout the world debate the issue of marijuana as medicine and not a crime, localities are slow to adapt and implement, and in some cases denying safe access completely.
This month, the California Supreme Court heard oral arguments in City of Riverside v. Inland Empire Patients Health & Wellness Center, a case that addresses whether cities & counties throughout the state are legally allowed to ban dispensaries.
The City of Riverside has an ordinance that prohibits dispensaries as a violation of zoning code, and any and all violations of zoning codes are defined as a “public nuisance” and subject to abatement.
What does this mean?
It means that if the City is right and they are allowed to ban dispensaries, then the City could shut down Inland Empire Center under civil codes, and fine the operators for daily violations of the zoning code.
The City of Riverside tried to order Inland Empire Center to close. The Inland Empire Center refused, and the City eventually took them to court seeking what’s known as an injunction–a court order that would force the Center to close.
After several appeals, the case was heard by the California Supreme Court. The highest court in California has 90 days to issue their opinion in the case.
They have not made a final decision; however, the questions they posed to the attorneys give us a bit of an idea about how they may rule.
Cities & counties across the state have come up with a wide range of ways to deal with dispensaries. A dispensary operator in California is faced with a multitude of laws & regulations that can range from basic to extraordinarily complicated. Some cities & counties have chosen to allow dispensaries and regulate their quantity, location, and a variety of other aspects of day-to-day operations.
These regulations can take the form of zoning codes, public health rules, packaging & preparation codes, and a variety of other regulations. Meanwhile, other localities have tried various ways to prohibit dispensaries.
The City of Riverside is not the only locality using zoning code to “zone out” dispensaries. In fact, the California Supreme Court has accepted four other similar cases for review.
During oral arguments on Tuesday, the Justices of the California Supreme Court asked questions about several issues. The issues they focused on included whether the legislature intended to allow cities to ban dispensaries, and whether the right of counties & cities to enact nuisance laws is superseded by the Medical Marijuana Program Act (SB 420).
With respect to the legislature’s intent, the Justices and attorneys covered whether legislators intentionally left out specific language prohibiting bans. When looking at the legislature’s intent, the Justices, in some ways, are bound by the actual language of the law, as explained below.
The Justices asked both attorneys which language supported the arguments they presented in their briefs. The City of Riverside argued that there was no actual language in the MMPA (SB 420) that discussed whether cities & counties could ban dispensaries.
The Inland Empire Center argued several points.
The MMPA states “Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article.” The Inland Empire Center argued that since the legislative allows regulation under that language, that “consistent with this article” means cities & counties must not ban. This is where the practice of law gets a little confusing.
Logically, it makes sense that the Inland Empire Center thinks the intent of SB 420 was to prohibit banning dispensaries. The preamble language of the MMPA (SB 420) specifically says:
“the [Compassionate Use Act, aka Prop 215] called upon the state and the federal government to develop a plan for the safe and affordable distribution of marijuana to all patients […]. It is the intent of the Legislature, therefore, to do all of the following:
[…] Promote uniform and consistent application of the [Compassionate Use Act, aka Prop 215] among the counties within the state.
[…] Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.”
Sounds pretty clear, right? If cities & counties are allowed to ban dispensaries, then there wouldn’t be uniform and consistent application of 215 since cities like San Francisco would allow dispensaries and cities like San Bernardino would prohibit dispensaries.
In addition, if cities and counties were allowed to ban dispensaries, then it wouldn’t enhance the access of patients and caregivers to medical marijuana. Just the opposite, bans would limit access.
One of the arguments the Inland Empire Center made was that the right to regulate is not the same as the right to ban.
Going back to the language of the MMPA (SB 420), “Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article.” The Inland Empire Center argued that this language, when considered in conjunction with the preamble’s stated intention, makes it clear that the legislature intended to prohibit bans, as the right to regulate dispensaries inherently means that cities and counties can not ban.
In other words, since the legislature said it’s okay for cities & counties to regulate dispensaries, and the legislature intended for consistency between the counties, banning dispensaries would lead to inconsistent results between counties, so banning dispensaries is illegal. Sounds logical and reasonable, right?
The problem is this:
The Constitution of the State of California generally allows cities & counties to make decisions about zoning. Rather than a legislative decision, the Constitution allows zoning ordinances as a matter of right, provided the ordinances are “not in conflict with general laws.” (Article 11, Section 7 of the CA Constitution). Since the right to regulate zoning lies with cities & counties, there are only a few ways to show that a zoning ordinance conflicts with a general law. In this case, it would be necessary for the legislature to intend to “preempt” the right of localities to make zoning decisions.
The Inland Empire Center has two ways to convince the Justices that the legislature did, indeed, intend to preempt traditional zoning rights. The easiest way would be to show that the language of the law literally, or “expressly” states the intention to preempt local zoning laws. The Inland Empire Center argued that the language allowing cities and counties to regulate dispensaries specifically takes away the ability to ban.
The argument is that the legislature intended for regulation of dispensaries, not prohibition.
Another, much harder way to argue preemption is to show that the legislature intended to preempt local zoning laws, despite not expressly saying so in the law. This type of “implied” preemption can be shown by looking at legislative history and the language of the preamble. The Justices are much less likely to allow for “implied” preemption, because “in conflict” doesn’t usually mean “implied conflict.”
The Inland Empire Center argued that the language of the preamble was clear, and that taken in conjunction with the language of the bill regarding regulation, shows that the legislature intended to preempt local zoning rights and to prohibit banning dispensaries.
The City of Riverside argued that there was no express language in the MMPA (SB 420) about banning dispensaries, and that the Court should not allow “implied” preemption because the right of cities and counties to make zoning decisions should be near-absolute, unless there is a direct conflict with a general law. They argued that the MMPA is not in conflict with the California Constitution regarding zoning, therefore the Constitution (giving power to the cities and counties) should be followed.
The Justices posed questions to attorneys on both sides that illustrated their reluctance to allow for express preemption. In addition, their questions demonstrated a reluctance to allow for implied preemption. Hopefully, these questions were asked so that the Justices could write a bullet proof opinion that states, unequivocally, that cities and counties can not ban dispensaries.
There were some questions that illustrated some positive points.
One Justice asked if the entire point of the MMPA would be frustrated because of the simple fact that the ID Program was rendered useless if bans were permitted. What was the point of getting an ID card without access?
Another Justice answered that question by explaining the personal cultivation guidelines, demonstrating a fair understanding of the Compassionate Use Act (Prop 215), though it begs several question:
What does that Justice expect sick people to do in cities and counties that ban dispensaries?
Immediately after being diagnosed with cancer, is a patient supposed to learn how to cultivate cannabis and wait for it to grow?
Should they postpone chemotherapy in order to be prepared for the pain & nausea it brings?
The opinion is technically due 90 days from oral arguments; however, in Qualified Patients Association v. Anaheim, the California Supreme Court postponed issuing an opinion using procedural loopholes, issuing their decision almost a year after oral arguments.
In addition, their “final opinion” dodged the question as to whether or not localities can ban and sent the case back to the trial court for “further factual development.”
While we hope for a well-reasoned, quickly-written decision that says unequivocally that dispensary bans are illegal, it is possible that we won’t have a final decision for a while.
Regardless of the outcome of this case, we need to push our local governments to enact good regulations and to push our state legislature to enact a comprehensive bill ensuring access across the state.
For more ways to get involved, check out AmericansforSafeAccess.org