Agenda - Planning Commission - 10/04/2012

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Zoning Bulletin August 25, 2012 I Volume 6 I Issue 16 The City appealed. DECISION: Judgment of trial court reversed, and matter remanded. The Court of Appeal, Second District, Division 8, held that the Ordinance did not violate equal protection (requiring parties similarly situated with re- spect to a law to be treated alike under the law) by requiring eligible collec- tives to have previously registered. The Collectives had failed to make an "as -applied" equal protection chal- lenge, so the court looked only at the constitutionality of the Ordinance on its face. The court explained that where a statute makes distinctions involving inherently suspect classifications or fundamental rights, it is subject to strict scnitiny under the equal protection clause and may be upheld only if the government establishes the distinction is necessary to achieve a compelling state interest. However, in areas of social or economic policy not involving suspect classifications or fundamental rights, a statute must be upheld against an equal protection claim so long as there is any reasonably conceivable set of facts that provides a rational basis for the classification. Here, the court found the Ordinance did not make a distinction involving either fundamental rights or suspect classification. At its base, held the court, the Ordinance essentially provided a "grandfather provision" "with the added gloss of a prior registration requirement." So-called "grandfather provisions," noted the court, "have routinely withstood equal protection challenges." The court concluded that the exclusion of a group of (unregistered) medical marijuana dispensaries, while perhaps arguably "unfair," did not -violate equal protection under the rational basis test. The court also held that the Ordinance did not violate state procedural due process by requiring collectives that did not previously register to cease opera- tion immediately without the benefit of a hearing. The court said that Califor- nia due process protection requires the existence of some statutory benefit or entitlement before it is triggered. Here, the court found no such benefit or entitlement that was in any way affected by the Ordinance. The MMPA did not create a right collectively to cultivate medical marijuana. The MMPA cre- ated no right or benefit, other than the right of certain specified persons to be free from prosecution for certain specified state offenses based upon certain specified conduct. The court found that the Ordinance in no way affected the availability of this limited immunity and thus did not abrogate any right or benefit created by the MMPA. Furthermore, noted the court, even if the MMPA could be construed to cre- ate some type of benefit or right affected by the Ordinance, there was no depri- vation without due process. The Ordinance was enforceable by the City only if the City commenced formal legal proceedings misdemeanor criminal prosecutions, nuisance actions, or civil suits —subject to all the procedural protections that full adversarial hearings provide. The trial court's order granting preliminary injunction was reversed. The case was remanded for further proceedings consistent with this opinion. See also: City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976). See also: Martinet v. Department of Fish & Game, 203 Cal. App. 3d 791, 250 Cal. Rptr. 7 (4th Dist. 1988). © 2012 Thomson Reuters