A Court of Appeal recently held that the federal Controlled Substances Act (“CSA”) preempts a city ordinance that permits and regulates medical marijuana collectives. (Pack v. The Superior Court of Los Angeles County (— Cal.Rptr.3d —-, Cal.App. 2 Dist., October 4, 2011).)
The City of Long Beach ("City") enacted a comprehensive regulatory scheme to govern medical marijuana collectives. A collective is defined by the City as an association of four or more qualified patients and their primary caregivers who associate to cultivate marijuana for medical use. The ordinance restricts the location of collectives and requires collectives to obtain a permit. All collectives seeking to operate within the City must submit an application, pay a non-refundable application fee of $14,742, and participate in a lottery to obtain one of a limited number of permits.
A collective can only obtain a permit if it can show that it has installed sound insulation, odor absorbing ventilation, a closed-circuit television monitoring system, and a centrally-monitored alarm system. Collectives must provide samples to be analyzed by an independent laboratory to make sure the marijuana they distribute is free from contaminants and pesticides.
If the City issues a permit, the collective must pay an annual permit fee based on the collective's size. A collective that has between 4 and 500 members must pay $10,000. Cultivation, possession, or distribution of medical marijuana other than through an authorized collective is prohibited. The ordinance bans a person from membership in more than one collective.
Ryan Pack, a member of a collective that the City ordered to cease operations, brought a lawsuit against the City seeking a declaratory judgment and a preliminary injunction. The trial court found in favor of the City.
The question before the Court of Appeal was whether federal law preempt the City's ordinance, which permits and regulates medical marijuana collectives. The Court held federal law preempts some provisions of the ordinance.
The possession and distribution of marijuana is prohibited by the CSA and federal law makes no exception for medical marijuana. Although possession and cultivation of marijuana is generally illegal in California, the state has decriminalized these acts if a person has a physician's recommendation to use marijuana for medical purposes. California has also decriminalized the collective or cooperative cultivation of medical marijuana. A California Court of Appeal previously concluded that federal law does not preempt California's medical marijuana statutes because "they seek only to decriminalize certain conduct for the purposes of state law."
California's Medical Marijuana Program Act ("MMPA") specifically provides that it does not prevent a city from adopting and enforcing laws that are consistent with it. This provision of the MMPA has been interpreted by California courts to allow counties and cities to impose greater restrictions than the MMPA. For example, the MMPA prohibits a retail medical marijuana establishment from operating within a 600-foot radius of a school, but city or county may adopt ordinances that further restrict the formation or location of a medical marijuana establishment.
The issue here however is whether the City's ordinance is preempted by federal law. In determining whether the City's ordinance and federal law conflict, the Court examined whether it is impossible to comply with the requirements of both laws. One provision of the City's ordinance provides that collectives must submit a sample of their medical marijuana for testing. The Court questioned whether a collective could comply with this provision of the ordinance without violating the federal CSA's prohibition against marijuana distribution because this provision of the ordinance actually appears to require collectives to violate the CSA. The Court ultimately concluded the testing provision of the ordinance is preempted by the CSA.
The Court also examined whether the City's ordinance stands as an obstacle to the accomplishment of Congress's purposes and goals. The CSA's purpose is to combat drug use and trafficking. Two California appellate decisions have implied that California's medical marijuana laws might not pose an obstacle to accomplishing these purposes because the CSA is aimed at combating recreational drug use, not drug use for medical purposes. The Court noted that as far as Congress is concerned all marijuana use is recreational use because it has concluded that marijuana has no accepted medical use.
The Court concluded that an ordinance such as the City's that establishes a permit scheme for medical marijuana collectives is an obstacle to accomplishing CSA's purposes. The ordinance goes beyond decriminalization and seeks to expressly authorize the dispensaries. If a participant wins the City's lottery for permits, the City provides a permit and imposes an annual fee for continued operation. The City decides which collectives are permissible and which ones are not. A permit obtained from the City is nothing more than an authorization to collectively cultivate marijuana. The federal government takes the position that state and local laws that license the large-scale cultivation of marijuana present an obstacle to the enforcement of federal law. The Court concluded that the permit provisions of the ordinance, including the application and renewal fees and the lottery provisions, are preempted by federal law.
The Court, however, remanded the matter back to the trial court for it to determine whether other provisions of the ordinance can be severed and given independent effect. These provisions prohibit a collective from providing marijuana between 8:00 p.m. and 10:00 a.m., persons under the age of 18 from being on a collective's premises, the consumption of alcohol on collective premises, and locating a collective near a school.
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