In a prior blog, I briefly discussed relevant state law regarding the formation and operation of medical marijuana cooperatives and collectives, pursuant to the Compassionate Use Act (the Act), Medical Marijuana Program Act (the Program) and California Attorney General Aug. 2008 Guidelines.
In response to the rampant proliferation of medical marijuana dispensaries (MMD’s), many cities and counties adopted ordinances restricting the location or establishment of the same. The result has been the shuttering of many MMD’s or lawsuits by MMD’s contending that such ordinances were preempted by state law and/or unconstitutionally discriminate against them.
In County of Los Angeles v. Hill (Feb. 9, 2011) No. B216432, the California Court of Appeal ruled that ordinances adopted by Los Angeles County restricting operation of MMD’s were valid and not inconsistent with the Act and the Program.
In that case, the County of Los Angeles brought a nuisance action against the defendant MMD operator for operating an MMD without obtaining a business license, a conditional use permit and a zoning variance to allow operation within 1000 feet of a public library, all of which are necessary under the County’s MMD ordinance.
While the case was pending appeal, the California Legislature enacted Health & Saf. Code section 11362.768 (effective January 1, 2011), which specifically recognizes and partially regulates MMD’s having a storefront or mobile retail outlet which ordinarily requires a local business license. Furthermore, section 11362.768 specifically states: “Nothing in this section shall prohibit a city, county or city and county from adopting ordinances or policies that further restrict the location or establishment of [an MMD]” including local ordinances adopted prior to January 1, 2011.
Although the defendant argued that such ordinances were preempted by state statutes and were unconstitutionally discriminatory, the Appeals Court ruled that the ordinance was not preemptive as a country is allowed to regulate the establishment of MMD’s and their locations so long as those regulations are consistent with the Program’s provisions, specifically referencing Health & Saf. Code section 11362.768.
Thus the battle over MMD’s rages on as this ever changing area of the law continues to develop. Anyone considering establishing and operating an MMD should ensure they are apprised of the law and consult an experienced business attorney.
