Metropolitan News-Enterprise

Friday, July 7, 2012

Page 1

C.A. Upholds City of Los Angeles Regulation of Medical Marijuana

By a MetNews Staff Writer

The Court of Appeal for this district has overturned an injunction barring the City of Los Angeles from enforcing its 2010 ordinance regulating medial marijuana dispensaries.

Los Angeles Superior Court Judge Douglas Sortino, writing Tuesday on assignment to Div. Eight, said it was clear from cases decided and a statute enacted after the trial court rendered its decision that there is no constitutional bar to, and no state statutory preemption of, the citys law.

The ordinance regulates the number and geographic distribution of dispensaries within the city, in part by shutting down those that had sprung up since the city adopted an interim ordinance in 2007, as well as those that were operating at that time but failed to register as that ordinance required.

All previously registered dispensaries or collectives must reregister under the new law, which will eventually reduce the number of such facilities to a total of 70, distributed throughout the city on the basis of population density. Collectives which have been cited for legal violations or have changed ownership will not be allowed to reregister, and those located near schools, libraries, parks, other collectives, or in other inappropriate locations will be forced to close or move.

Recordkeeping and Disclosure

Registered collectives will also be required to meet new recordkeeping and disclosure requirements, enabling police to determine whether the people it serves are qualified medical marijuana patients under Proposition 215 and the Medical Marijuana Program Act passed by the Legislature in 2003.

Los Angeles Superior Court Judge Anthony Mohr enjoined enforcement of parts of the ordinance in December 2010, concluding that limiting registration to those that registered under the prior ordinance violates equal protection; that the MMPA precludes the city from criminalizing violations of its own ordinance; that shutting down collectives that did not register under the interim ordinance without a hearing violates due process; and that the recordkeeping and disclosure rules violate the state Constitutions privacy clause.

Temporary Ordinance

The city subsequently enacted a temporary urgency ordinance that purports to cure the defects identified by the trial court, such ordinance to remain in effect only during the litigation or until permanent amendments to the 2010 ordinance are enacted.

The Court of Appeal rejected all four of Mohrs conclusions.

There was no equal protection violation, Sortino explained, because the city rationally distinguished between those collectives that have been operating longer, and which made an honest attempt to comply with the law, from those that have only opened recently or refused to comply with the earlier law.

The plaintiff clinics, he said, failed to satisfy their burden of showing that the distinction fails to serve a legitimate government purpose.

There is no conflict with the MMPA, he went on to say, because the statute does not expressly forbid local regulation in the area of medical marijuana use and, in fact, expressly contemplates it. The implied right of local governments to regulate medical marijuana in the original legislation is now explicit, he noted, because while the citys appeal was pending, the Legislature amended to the law to authorize civil and criminal enforcement of regulations regarding the location and operation of facilities where medical cannabis is made available.

No Due Process Problems

The jurist also brushed aside the trial judges due process concerns, noting that the city can only shut down a clinic or punish its operators by initiating civil or criminal proceedings, in which the operators will have full resort to normal statutory and constitutional procedural protections.

Nor, he said, does the right to privacy preclude the laws enforcement.

Emphasizing the heavy burden that the plaintiffs must meet to prevail in a facial challenge, the judge wrote:

To the extent the respondents as collectives are asserting their own privacy rights, we find no issue with either the record-keeping or disclosure requirements of the Ordinance given the heavily regulated area in which the collectives operate. Whether analyzed as creating an unreasonable expectation of privacy or an invasion of a reasonable expectation of privacy justified by a legitimate competing state interest, such entities are subject to greater privacy intrusions than would be allowed in the context of individuals or more ordinary businesses. Insofar as collectives are asserting the privacy rights of their individual members or...asserting their own individual privacy rights, we also find no invasion of privacy, based largely on similar analysis.

There was, he noted, a good deal of evidence presented to the trial court that many so-called medical marijuana collectives are actually for-profit businesses, and that enough of them are engaged in criminal activity to force considerable expenditure of police resources.

Under these circumstances, it would be entirely irrational to accord marijuana collectives  as entities  greater privacy rights than pharmacies involved in the distribution and use of traditional prescription drugs, he wrote. We find that any expectation of privacy by a collective in the limited, and nonintimate, information sought by the Ordinance to be unreasonable.

The case is 420 Caregivers, LLC v. City of Los Angeles, 12 S.O.S. 3341.

Copyright 2012, Metropolitan News Company