Yesterday, California Court of Appeal, Fourth District, Division Three requested additional briefing in Qualified Patients Association v. City of Anaheim, Case No. G040077. At issue in this case is the validity of City of Anaheim's ("City") ordinance banning medical marijuana dispensaries. The appeal arises out of the trial court's ruling sustaining City's demurrer and holding that the ordinance is not preempted by California's Compassionate Use Act ("CUA") and Medical Marijuana Program Act ("MMPA"). The Court's invitation for further briefing centers on Health and Safety Code Section 11570, which bars as nuisance the use of any premises for unlawful distribution, storage, or manufacture of controlled substances, including marijuana. The Court's inquiry focuses on the significance of MMPA Sections 11362.765 and 11362.775, which decriminalize activities otherwise unlawful under Section 11570 by persons qualifying for protections under the CUA and MMPA.

Qualified Patients Association ("QPA"), an association of medical marijuana patients, challenged the City's ordinance arguing that the ordinance is preempted by the CUA and MMPA. QPA also argued that the ordinance violated the Unruh Civil Rights Act in that the ordinance impermissibly discriminated against medical marijuana patients. The City demurred to QPA's complaint. In sustaining the City's demurrer without leave to amend, the trial court rejected QPA's position that medical marijuana dispensaries are legal enterprises under the CUA and held that the ordinance is not preempted by the state law.

On appeal QPA repeated its preemption and civil rights arguments. QPA also argued that the ordinance duplicates general state law in attempting to create new criminal penalties in the field occupied entirely by the California Uniform Controlled Substances Act. In response, the City advanced several arguments. The City argued that the CUA and MMPA pose positive and obstacle conflicts and are preempted by the federal Controlled Substances Act. Additionally, the City argued that the ordinance is not preempted by the state law because it does not duplicate, contradict or enter into a field fully occupied by the CUA or MMPA. As to QPA's civil rights claims, the City argued that QPA lacks standing to bring a cause of action under the Unruh Civil Rights Act and that the ordinance does not unlawfully discriminate against medical marijuana patients because it merely prohibits conduct that is illegal under federal law.

The Court heard oral argument on September 23, 2009 and its ruling was expected by mid-December. The Court, however, on its own motion vacated the submission of the parties and invited the City, QPA and their respective amici curiae to submit additional letter briefs on the significance of MMPA Sections 11362.765 and 11362.775, which decriminalize certain activities otherwise unlawful under Section 11570. Specifically, the Court requested briefing on the following questions: Does the inclusion of Section 11570 reflect a legislative intent to preempt local government action, if any, that may criminally punish medical marijuana activity as a nuisance? If so, does that lend support to the conclusion that the MMPA preempts local government legislation purporting to criminalize medical marijuana activities? Or, does the inclusion of Section 11570 have some other significance?

Meyers Nave represents 36 California cities as amici curiae joined together to support City in this appeal. We anticipate the Court's decision in the Spring.

For more information about this case or California's medical marijuana laws, please contact Joseph Quinn or Ellin Davtyan at 800.464.3559