• email
  • share

Cities and Counties May Ban Medical Marijuana Dispensaries

On November 9, 2011, the California Court of Appeal, Fourth Appellate District, issued a ruling holding that state law does not preempt the City of Riverside’s (“City”) ordinance banning medical marijuana dispensaries (“MMD”).  (City of Riverside v. Inland Empire Patient’s Health and Wellness Center, Inc., et al. (2011 Cal. App. LEXIS 1406).)

Having opened in the City in 2009, Inland Empire Patient’s Health and Wellness Center, Inc. (“Inland Empire Center”) was a non-profit mutual benefit corporation, established as a MMD.  The City’s municipal code prohibited MMDs on two grounds.  First, the City’s zoning ordinance specifically lists MMDs as a prohibited use, and secondly, the City’s code proscribes any use that is prohibited by state and/or federal law.  The City’s code also declares that any use that violates the City’s code is considered a public nuisance.

In 2010, in an effort to close down Inland Empire Center, the City filed a motion for a preliminary injunction, which was granted by the trial court.  Inland Empire Center appealed.  The Court of Appeal reviewed the trial court’s order, to determine whether the trial court abused its discretion when evaluating the two factors necessary to issue a preliminary injunction—plaintiff’s likelihood of success on the merits; and the harm to plaintiff if the injunction were denied, compared to the harm to the defendants if the injunction were issued. 

The Court, to make its determination, had to examine whether the City’s ordinance banning MMDs was valid and enforceable.  The Court engaged in an extensive analysis of preemption when reaching its decision on the validity of the City’s ordinance.  After considering the scope and purpose of the Compassionate Use Act (“CUA”) (Cal. Health & Safety Code §11362.5) and the Medical Marijuana Program Act (“MMPA”) (Cal. Health & Safety Code §§11362.7 et seq.), the Court found that the City’s ordinance could be reconciled with state law.  The Court based its decision on the fact that the CUA is narrow in scope, and only provides limited criminal immunity for the use, cultivation and possession of medical marijuana.  Moreover, neither the CUA nor the MMPA create a statutory or constitutional right to use marijuana, or allow for the sale or distribution of marijuana by a MMD.  The Court further found that, notably, nothing in either the CUA or MMPA mandates that cities and counties permit MMDs, and nothing precludes cities and counties from banning MMDs. 

Inland Empire Center argued that while local governments are permitted to enact some regulation with respect to MMDs, cities and counties are not permitted to enact total bans.  The Court looked to the ordinary meanings of the terms “regulate” and “regulation” that are found in Section 11362.768 of the MMPA, and held that a ban or prohibition is merely a type of regulation or restriction.  Based on these provisions found in state law, the Court found that the City’s ban on MMDs was not preempted.  The Court stated:  “[t]he CUA and the [MMPA] do not preclude [the City] from enacting zoning ordinances prohibiting MMDs in the City.”  Id. at 20.

Because the City’s zoning ordinance is valid, the Court held that Inland Empire Center’s violation of the code is a nuisance per se, that is subject to nuisance abatement.  The Court further held that, based upon the fact that Inland Empire Center’s operation of a MMD is a nuisance per se, the City was likely to prevail on the merits at trial, and therefore the trial court did not abuse its discretion when granting the City’s motion for injunctive relief.

Cities and counties throughout California have long awaited a decision that addresses state preemption of local ordinances regulating MMDs.  This decision appears to provide local governments with the authority necessary to enforce their ordinances that include total bans on MMDs.