Cities May Ban Medical Marijuana Cultivation

The Third District California Court of Appeal recently ruled that California's medical marijuana laws – the Compassionate Use Act ("CUA") and the Medical Marijuana Program ("MMP") – do not create a constitutional right to cultivate and possess marijuana, and likewise do not preempt a city's ordinance prohibiting medical marijuana cultivation.  Therefore, cities may prohibit cultivation of all marijuana within their limits, including cultivation of marijuana for medical purposes.

In Maral v. City of Live Oak (November 26,2013) — Cal.Rptr.3d —-, plaintiff James Maral challenged the City of Live Oak's ("City") 2011 ordinance that prohibited marijuana cultivation within the city limits.  Maral claimed that the CUA, approved by California voters in 1996, gave Californians the right to obtain and use marijuana for medical purposes.  Maral also asserted that the MMP, enacted by the Legislature in 2003 to clarify provisions of the CUA and specify that the CUA immunized certain medical providers and patients from prosecution, preempted the City's ordinance.  Upon motion by the City, the trial court dismissed Maral’s complaint.  Maral appealed.

The appellate court upheld the dismissal of the complaint.  Analyzing the combined effect of the CUA and the MMP, the court found that, "Rather than granting a blanket right to use marijuana for medical purposes, the CUA created "only a limited defense to certain crimes, not a constitutional right to obtain marijuana."  The court noted that while the MMP spells out that defense, it does not confer an unfettered right to cultivate or dispense marijuana anywhere one chooses.  In short, the court stated that the remedies offered by the CUA and the MMP were "limited and specific," not creating a broad right of access to marijuana.  This interpretation is consistent with prior case law rulings that have found that California's laws permitting medical marijuana do not prohibit local bans on marijuana distribution.

The appellate court found that because there is no right to cultivate medical marijuana, and certainly no constitutional right, the premise of Maral's complaint that the City's prohibition violated Californians' constitutional or other rights fails to state a viable cause of action.  The judgment dismissing the complaint was, therefore, affirmed by the court of appeal.


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