Appellate Briefs Argue Against Medical Marijuana Dispensary Ban
State law co-author: Nuisance statutes cannot be used to ban dispensing
SANTA ANA, Calif. --- Legal briefs were filed today by patient advocates Americans for Safe Access (ASA) and State Senator Mark Leno (D-San Francisco) in an appellate court case that is expected to decide whether local governments can ban storefront distribution of medical marijuana. Although more than 40 California localities have adopted ordinances regulating medical marijuana dispensing collectives, or dispensaries, more than 120 cities have permanently banned such activity.
The case Qualified Patients Association v. City of Anaheim was supposed to be decided in December by California's Fourth Appellate District Court, but further briefing was requested. The court is currently seeking clarification on whether the state legislature meant to prevent local governments from using nuisance statutes to outlaw medical marijuana distribution.
A support (amicus) brief filed by Senator Leno in his personal capacity stated that, "the clear intent of the [Medical Marijuana Program Act] in providing an exemption under the nuisance law was to preempt local ordinances and enforcement efforts based on nuisance law of any kind," and "To permit otherwise would undermine the expressly stated intent of the legislation." As an Assemblymember at the time, Mr. Leno was one of the principal co-authors of SB 420, the Medical Marijuana Program Act of 2003.
ASA concurred with Mr. Leno's assertion and wrote in its own support brief that state law was drafted to stop local efforts to ban medical marijuana collectives. "The City of Anaheim cannot hide behind federal law," said ASA Chief Counsel Joe Elford. "Local governments cannot simply ban an activity that has been deemed lawful by the state." ASA previously filed a brief in the Anaheim case, which argued that under state law local officials have an obligation to allow for the operation of lawful dispensaries. Oral arguments occurred in September.
The plaintiff, Qualified Patients Association (QPA), filed a lawsuit shortly after Anaheim adopted a ban on dispensaries in July 2007. QPA had been in operation for about 5 months prior to the ban. An appeal was filed in March 2008 after the Orange County Superior Court ruled that Anaheim could prohibit medical marijuana dispensaries from operating within its city limits.
The Anaheim case has drawn a lot of attention as more and more local governments confront the issue of access to medical marijuana. Multiple statewide law enforcement associations filed briefs in support of Anaheim, as have nearly three-dozen cities, including several in Orange County: Costa Mesa, Cypress, Fullerton, Garden Grove, Newport Beach, Orange, Placentia, Tustin and Westminster.
Shortly after the appeal was filed, the California Attorney General issued guidelines in August 2008 recognizing the legality of storefront dispensaries as long as they comply with certain operational requirements. For instance, dispensaries must operate as a collective or cooperative on a not-for-profit basis, sell only to member patients and primary caregivers, and pay sales tax to the State.
The Anaheim case is the first lawsuit of its kind to reach the appellate courts in California, and may shape the issue of access to medical marijuana for patients across the State. "Dispensaries serve a critical function for our most seriously ill and should be encouraged, not banned," said ASA Media Liaison Kris Hermes. "Thousands of patients in California cannot cultivate their own medical marijuana and rely on local dispensaries for safer access than the illicit market." An increasing number of medical marijuana states are adopting laws to deal with the issue of distribution, including New Mexico, Rhode Island, Maine and, most recently, New Jersey. A decision by the Fourth Appellate District Court in the Anaheim case is expected within the next couple of months.
Mark Leno's amicus brief on legislative intent: http://AmericansForSafeAccess.org/downloads/Leno_Amicus_Anaheim.pdf
ASA's amicus brief on nuisance statutes: http://AmericansForSafeAccess.org/downloads/ASA_Amicus_Anaheim_Nuisance.pdf
Original ASA amicus brief in Anaheim case: http://AmericansForSafeAccess.org/downloads/Amicus_Qualified_Patients_Assoc.pdf
List of dispensary regulations and bans in California: http://AmericansForSafeAccess.org/regulations