New Court Decision Limits Authority of Cities to Ban Medical Marijuana Dispensaries

A recent California appellate court has issued a potentially significant opinion, declaring that local governments may not completely ban medical marijuana dispensaries, with the limitation that the Legislature authorized medical marijuana dispensaries only at sites where medical marijuana is “collectively or cooperatively…cultivate[d].” (See City of Lake Forest v. Evergreen Holistic Collective, (G043909).) This ruling is significant for local governments because it is the first published California case to declare that local governments may not ban medical marijuana dispensaries and that medical marijuana can only be dispensed from the cultivation site.

The case arises from a preliminary injunction, sought by the City of Lake Forest (“City”), ordering Evergreen Holistic Collective (“Evergreen”) to close on the basis it was a nuisance per se. The trial court concluded Evergreen’s operation of a medical marijuana dispensary constituted a nuisance per se because the City’s zoning code did not authorize medical marijuana dispensaries and any violation of the City’s municipal or zoning code was a nuisance. A nuisance per se is a use that is automatically, by its very nature, determined to be a nuisance, without the need to show facts demonstrating that the particular use was, in fact, a nuisance.

The appellate court, however, reversed the trial court. According to the Lake Forest court, state law not only decriminalized the use of medical marijuana by qualified patients and their primary caregivers, but also specifically authorized medical marijuana dispensaries at sites where medical marijuana was collectively or cooperatively cultivated.

Consequently, the Lake Forest court determined that state law allowing dispensaries on certain terms and conditions pre-empted a city’s ability to adopt a complete ban on dispensaries. Instead, a city, to shut down a medical marijuana dispensary, would have to show that the dispensary did not grow its medical marijuana on site or otherwise failed to comply with applicable state medical marijuana law or permissible local regulations.

The appellate court’s opinion comes in the wake of the California Supreme Court granting review of four other appellate court decisions related to medical marijuana dispensaries. Local governments hoped the Supreme Court would provide long-awaited guidance regarding the scope of authority held by local governments over medical marijuana dispensaries. The Lake Forest decision adds confusion to the medical marijuana scheme from a local government’s perspective.

The City of Lake Forest will shortly be requesting the Supreme Court to “depublish” the Lake Forest decision; the effect of depublication, if granted, would be to essentially make the decision applicable only to the actual parties to the case, not statewide.