In 1996 voters approved Proposition 215, the Compassionate Use Act of 1996 (CUA), making California the first state in the nation to “legalize” marijuana for medical purposes. At the time, the proponents claimed that the CUA would “allow seriously and terminally ill patients to legally use marijuana, if, and only if, they had the approval of a licensed physician.” They further claimed that “marijuana would still be illegal for non-medical use.” Meanwhile, the opponents were calling the CUA a “deceptive and poorly written initiative by those who want to exploit public compassion for the sick in order to legalize and legitimatize the widespread use of marijuana in California.”
Seventeen years later, the debate regarding this policy continues. Today the CUA and its 2003 legislative expansion, known as the Medical Marijuana Program (MMP)1, remain shrouded in a haze of legal ambiguities. This has led to a string of legal actions and court challenges placing advocates, governmental agencies, and entrepreneurs in war for supremacy over a burgeoning industry estimated to be worth billions of dollar annually.2
A Brief History
Generally under federal and state laws, the possession, cultivation, sale and transportation of marijuana remains illegal. However, California has adopted limited exceptions to state law prohibitions where marijuana is possessed, cultivated, distributed and transported for medical purposes. The laws regarding this exception were implemented primarily through two means: 1) the 1996 CUA, enacted by voters as Proposition 215, which primarily provides that state criminal sanctions regarding the possession and cultivation of marijuana shall not apply to a patient or a patient’s primary caregiver upon the recommendation or approval of a physician; and 2) The MMP, a statute enacted by the Legislature which, among other things, establishes a process for obtaining identification as a patient or primary care giver and which provides that patients and caregivers may associate “in order collectively or cooperatively to cultivate marijuana for medical purposes” and may not on that fact alone, be subject to state criminal sanctions for possession, cultivation, sale, transportation and other specified statutes.
With the passage of these two measures, medical marijuana evolved into a very profitable “legal” industry in California. Despite the lack of clear statutory authority for their existence, storefront marijuana dispensaries sprang up in virtually every city and county offering their wares. Where the CUA and MMP had envisioned a qualified patient or primary caregiver growing their own plants and possessing small quantities of medical marijuana, dispensaries instead offered their products in virtually unlimited quantities. They were so prolific that, at one point, it was reported that within the City of Los Angeles, there were more dispensaries than Starbucks or McDonald’s locations,3 bringing into question whether it was really just the sick and ill that were accessing medical marijuana.
In response, local jurisdictions throughout the state attempted to regulate, or in many cases, ban these entities. Some cooperated with local governments while others blatantly defied licensing requirements and local ordinances relying instead, on the perceived inaction of local governments, or upon shaky legal claims that their existence was a fundamental right of patients. However, as these disputes moved through the legal system, the medical marijuana industry received a number of significant defeats leading up to the Supreme Court’s landmark City of Riverside v. Inland Empire Patients Health and Wellness Center decision in May of this year, including:
People v. Mentch (2008) 45 Cal.4th 274 where the court refused to provide an individual criminal immunity for supplying medicinal marijuana to several patients for whom he claimed to be a “primary caregiver.” The court found that a “primary caregiver” must have an “ongoing caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need.”
City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 where the court found that there was no implied preemption of local ordinances under state statues, leaving local jurisdictions free to regulate this area. It further upheld the denial of a business license and a moratorium noting that “there is nothing in the text or history of the [CUA] that suggests that the voters intended to mandate that municipalities allow [such facilities] to operate within their city limits.”
County of Los Angeles v. Hill (2011) 192 Cal. App.4th 861 where the court concluded the CUA and MMP do not preempt a local jurisdiction for applying its zoning and business licensing powers to regulate medical marijuana dispensaries. Specifically the MMP cultivation provisions do not confer the unfettered right to cultivate or dispense marijuana anywhere they choose.
Case Background and Decision
In City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc, the California Supreme Court considered the validity of a City of Riverside ordinance that prohibited a medical marijuana dispensary or any other use prohibited by state or federal law within any city zoning classification. The Court essentially questioned whether California’s medical marijuana statutes preempt a local ban on facilities that distribute medical marijuana.
The case began in January 2009, when the City of Riverside notified the owner of the Inland Empire Patients Health and Wellness Center, a medical marijuana dispensary located within their jurisdiction, of the City’s recently passed ordinance and its language effectively banning dispensaries, collectives and cooperatives inside its boundaries. A year later, noting that Inland Empire was still operating, the City filed for injunctive relief to abate a public nuisance and moved for a preliminary injunction against the operation of the facility.
At trial, the court agreed with Riverside, upholding their ordinance by primarily citing the decision in City of Claremont v. Kruse which provides that cities may abate, as nuisances, uses in violation of their zoning and licensing regulations. The defendants appealed but the Court of Appeals affirmed the order and again upheld the zoning requirements stating that the Riverside ordinance did not duplicate, contradict or invade a field occupied by the state statutes concerning marijuana.
Undeterred, Inland Empire Health and Wellness continued their defense claiming that the Riverside ordinance was invalid because it conflicted with state law. The California Supreme Court accepted review of the case and held, in a 7-0 decision, that “neither the CUA nor the MMP expressly or impliedly preempts the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by nuisance actions. It further noted that “the purpose and provisions are modest. They remove state-level criminal and civil sanctions from specified medical marijuana activities, but they do not establish a comprehensive state system of legalized medical marijuana; or grant a ‘right’ of convenient access to marijuana for medicinal use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local accommodation of medical marijuana collectives, cooperatives or dispensaries.”
What Does This Decision Mean?
On its face, Riverside v. Inland Empire Patients Health and Wellness Center, Inc can be viewed simply as the logical progression of prior cases such as Kruse and Hill. However, it is significant in that it clarifies with some finality that, barring further state action: 1) the only “rights” conferred by the CUA and MMP are simply limited immunity for some individuals from specified state criminal and civil penalties; and 2) that local jurisdictions have the broad authority to regulate, limit or entirely ban medical marijuana dispensaries, collectives, and cooperatives through local land use or other police powers.
In light of this decision it is likely that more cities will enact bans, and many have already done so since the May 6th decision. It also means that bans, limitations, or regulation of dispensaries (such as Measure D in Los Angeles, which limited dispensaries to the 135 that were in business when the council began trying to regulate them in 2007) will be difficult or impossible to overturn through legal action. This will force advocates and the various interests to direct greater attention toward the Legislature in hopes of a broader solution or expansion of state regulation which would allow greater access to communities regardless of local policies.
While outright legalization of marijuana failed at the polls in California as recently as 2010, advocates have been busy throughout the nation. The potential for significant revenues and a more general acceptance of marijuana use has swayed public opinion, removing much of the stigma associated with marijuana. Eighteen states and the District of Colombia now allow medical marijuana use in some fashion, and four more are considering adoption of similar policies. Furthermore, two states, Washington and Colorado, have recently legalized recreational marijuana. And Colorado has even adopted a for-profit, taxed recreational model.
In California, local jurisdictions still face a number of unanswered legal questions and the threat of potential state legislative action. Assemblyman Ammiano’s comprehensive regulation legislation (AB 473) stalled in the Assembly earlier this year. However, SB 439 (Steinberg) is still pending before the Legislature and as currently drafted, the measure threatens local autonomy, or at least muddies the waters, regarding the ability of local jurisdictions to use nuisance abatement to regulate marijuana dispensaries. Should it pass, SB 439 would unfortunately strike at local control. Most notably, the decision in Inland Empire in which Justice Baxter commented, “while some counties and cities might consider themselves well suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed and closely monitored, would present unacceptable local risks and burdens.”
For more information on this report or other public safety issues, contact Eric Csizmar, Senate Republican Office of Policy at 916/651-1501.
1 Ch. 875, Stats, 2003 (SB 420, Vasconcellos)
2 A recent news article reviewing Colorado’s recent legalization of marijuana estimated the medical marijuana industry as at $1.5 billion and a legalized cannabis could be worth $110 billion annually (see: Walker, Tim. "Mile High city: Inside Denver’s billion-dollar marijuana industry The Independent 3 Aug. 2013.) Similarly, a March 2013 article in the Oregon Law Review cited research that Americans spend roughly $30 billion annually on marijuana (see: Caulkins et al High Tax States: Options for Gleaning Revenue from Legal Cannabis, Oregon Law Review Vol 91, at 1041.)
3 Martin, Michael, “In California, Marijuana Dispensaries Outnumber Starbucks” NPR, October 15, 2009. This and other news outlets claimed that there were nearly 1,000 dispensaries located in the City of Los Angeles alone.