Agenda - Planning Commission - 07/18/2013 - Special

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Zoning Bulletin June 25, 2013 I Volume 7 I Issue 12 California's medical marijuana statutes preempt a local ban on facili- ties that distribute medical marijuana. The Background/Facts: Since 2009, Inland Empire Patients Health and Wellness Center, Inc. ("Inland Empire") operated a medical marijuana distribution facility in the City of Riverside, California (the "City"). In January 2009, the planning division of the City's Com- munity Development Department sent a written notice to the lessee of the property (the "Property") on which Inland Empire's facility was lo- cated, Lanny Swerdlow ("Swerdlow"). That notice explained that the City's zoning ordinances (the "RMC" or the "ordinances") banned medical marijuana dispensaries, medical marijuana collectives, and medical marijuana cooperatives. The RMC further provided that viola- tion of the ordinances was a public nuisance which may be abated by the City. In May 2010, the City filed a complaint in court against: Inland Empire; Swerdlow; the owners and lessors of the Property; the Prop- erty mortgagor; the Property management service provider; a medical clinic immediately adjacent to Inland Empire's medical marijuana dis- tribution facility; and a board member and manager of Inland Empire (hereinafter, collectively, the "Dispensary"). The City asked the court for a preliminary injunction against operation of Inland Empire's facility. The trial court granted the preliminary injunction. It prohibited the Dispensary and all persons associated with them from using, or al- lowing use of, the Property to conduct "any activities or operations re- lated to the distribution of marijuana." The Dispensary appealed. Challenging the injunction, the Dispen- sary argued that the City's total ban on facilities that cultivate and dis- tribute medical marijuana in compliance with California's Compas- sionate Use Act (the "CUA") (Health & Saf. Code, § 11362.5) and Medical Marijuana Program (the "MMP") (Health & Saf. Code §§ 11362.7 to 11362.9) was invalid. Among other things, the CUA and the MMP exempt the "collective[ ] or cooperative[ ] cultiva[tion]" of medical marijuana by qualified patients and their designated caregivers from prosecution or abatement under specified state criminal and nuisance laws that would otherwise prohibit those activities. The Dis- pensary maintained that the City's ordinances banning medical marijuana dispensaries were in conflict with, and were thus preempted by, the CUA and MMP. The Court of Appeals disagreed with the Dispensary. It found that the City's zoning ordinances banning medical marijuana dispensaries did not duplicate or contradict the state statutes concerning medical marijuana, and that they did not invade a field expressly or impliedly occupied by those laws. The Court of Appeals affirmed the trial court's grant of the preliminary injunction. © 2013 Thomson Reuters