Agenda - Planning Commission - 06/02/2011

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Zoning Bulletin April 10, 2011 I Volume 5 I No. 7 In June 2006, Los Angeles County adopted ordinances regulating the operation of medical marijuana dispensaries in unincorporated areas of the county (the "Ordinances"). Among other things, the Ordinances required MMDs: to obtain a conditional use permit ("CUP"); obtain a business license before operating; and "not be located within a 1,000 foot radius of schools, playgrounds, parks, libraries, places of religious worship, child care facilities, youth facilities ...." Martin Hill and the Alternative Medicinal Collective of Covina (col- lectively, "Hill") operated a MMD in an unincorporated area of the County. Hill's MMD was operating without having obtained a business license, a conditional use permit or a zoning variance to allow it to oper- ate within a 1,000-foot radius of a public library. The county brought a nuisance action in court against Hill. The county asked the court to grant a temporary restraining order and pre- liminary injunction prohibiting Hill from "possessing, offering, selling, or giving away marijuana" anywhere in the unincorporated area of the county without the necessary permits and licenses required by law. The court granted the county's request. Hill appealed. On appeal, Hill argued that the county's Ordinances regulating MMDs were: (1) pre-empted by the Compassionate Use Act and MMPA; (2) inconsistent with those state laws; and (3) unconstitu- tionally discriminatory against MMDs. DECISION: Affirmed. The Court of Appeal, Second District, Division 1, California, held that the county's MMD Ordinances were not: (1) pre-empted by Com- passionate Use Act and MMPA; (2) inconsistent with those state laws; or (3) unconstitutionally discriminatory against MMDs. Hill had argued that the Compassionate Use Act and MMPA "ful- ly occupied the field of MMD regulation and thereby preclude[d] the County from enforcing any additional requirements." The court dis- agreed. It found Hill's argument failed. Section 11362.83 of the MMPA provides that it does not "prevent a city or other local governing body from adopting and enforcing laws consistent with [the MMPA]." Thus, found the court, state law allowed counties to regulate the establishment of MMDs and their locations so long as those regulations were consis- tent with the provisions of the MMPA. Hill had also argued that even if the MMPA did not pre-empt the county's authority to regulate MMDs, the county's regulations were in- valid because they were inconsistent with the state law. Again, the court disagreed. Section 11362.83's allowance of local laws "consistent" with the MMPA did not mean that the county could only enact the same lim- itations as provided in the MMPA, said the court. Rather, the legislature clearly "expected and intended that local governments [would] adopt additional ordinances." Section 11362.768 made this clear, providing © 2011 Thomson Reuters 3