The fight against Anaheim’s dispensary ban
By Jeff Schwartz, Esq.
This month the Court of Appeal will decide the case of Qualified Patients Association v. City of Anaheim. This could have a significant impact on medical marijuana patients’ ability to obtain their medicine. In order to understand the upcoming ruling, we must first understand the issues in the case.
In August 2007, the City of Anaheim enacted Ordinance No. 6067 which made it illegal to operate a dispensary in the city. It also made it a crime to work or volunteer in a dispensary. And, it defined a dispensary as “any facility or location where medical marijuana is made available to and/or distributed by or to three or more of the following: a qualified patient, a person with an identification card or primary caregiver.”
In September 2007, Qualified Patients Association (QPA) and its operator, Lance Mowdy, sued Anaheim, claiming that the Ordinance is unlawful because:
By criminalizing activities (such as a patient working in a dispensary or more than three patients and/or primary caregivers getting together to share medicine) which are non-criminal under state law, the Ordinance conflicts with the Compassionate Use Act (CUA) whose purposes is, “To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” A city ordinance which conflicts with state law is void.
Among the purposes of the Medical Marijuana Program (MMP) is to “Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” However, the Ordinance interferes with, rather than enhances, such access and, therefore, conflicts with the MMP.
The Unruh Civil Rights Act prohibits discrimination against anyone because of their disability or medical condition. By definition, medical marijuana patients have serious medical conditions for which their physician has recommended marijuana. By interfering with patients’ rights to obtain medical marijuana while permitting non-patients to obtain OxyContin or other pharmaceutical drugs, Anaheim is violating the Unruh Act.
In response, Anaheim claims that:
The CUA and MMP are void because they are preempted by the federal Controlled Substances Act (CSA). And, a state law which conflicts with a federal law is invalid.
Cities have broad “police powers” to determine how best to protect the public health, safety, morals and general welfare of its citizens and the Ordinance is a valid exercise of that right.
The Ordinance doesn’t violate the Unruh Act because it’s not discriminatory to prohibit conduct that is illegal under federal law; the Ordinance is expressly authorized by the CUA and MMP; and an association, like QPA, cannot invoke Unruh.
Now, let’s consider some possible appellate court rulings and their effect:
The criminal portions of the Ordinance are unlawful because they conflict with state law. I predict that the appellate court will rule this way. The question then is whether it will throw out the entire Ordinance (without addressing the other issues) or simply sever those portions and still rule on the rest of the Ordinance.
The Ordinance is invalid because it interferes with the purpose and goals of the CUA and MMP. This would be the best outcome because it would prevent all cities from enacting such bans. However, I doubt that the appellate court will take such a drastic step, particularly given the facts of this case. And, another appellate court has already ruled that a temporary ban does not conflict with the CUA and MMP.
The Ordinance is invalid because it violates the Unruh Civil Rights Act. This would be another terrific outcome because cities that permit regular pharmacies would also have to permit medical marijuana dispensaries. However, this is a long shot because application of Unruh is very complicated and Anaheim has raised some good arguments (although its claim that the Ordinance is expressly authorized by the CUA and MMP is bogus). It’s also not clear that Anaheim is discriminating based upon the patient’s medical condition rather than their physician’s choice of treatment for the condition.
The CUA and MMP are preempted by CSA. This would be the worst possible outcome because it would not only permit dispensary bans but would also void all of California’s medical marijuana protections. However, I don’t believe it’s likely because, in Section 903 of the CSA, the congress expressly stated that the CSA does not preempt state law “unless there is a positive conflict between that provision . . . and that State law so that the two cannot consistently stand together.” In County of San Diego v. San Diego NORML, an appellate court ruled that the portions of the CUA and MMP analyzed in that case were not pre-empted.
The Ordinance is a valid exercise of Anaheim’s “police power.” I believe that this is how the appellate court will rule because cities enjoy such power and every challenge by a dispensary has failed. However, I also believe that this is an area where we can win using a slightly different argument (see http://malindasfight.info).
Regardless of the upcoming ruling, the losing side will petition the California Supreme Court to review it. However, while appellate courts must rule on every case submitted to them, the Supreme Court only hears the cases it wishes to hear. Keep your eyes out for the announcement and your fingers crossed that the appellate court’s ruling is favorable.
Attorney Jeff Schwartz can be reached at (888) 7300-LAW or jeff@Schwartz4Law.com.