How to Beat the Dispensary Ban
By Jeff Schwartz, Esq.
We, the people of California, voted to make medical marijuana legal and available to qualified patients. But some cities have banned dispensaries, interfering with that availability. So far, lawsuits challenging those bans have failed. I will explain why we’ve lost so far and, more importantly, how we can win in the future.
The key to challenging any governmental action is the “scrutiny” that the court must apply. There are three levels of scrutiny: rational basis, intermediate, and strict. Under the lowest level, rational basis, the law will be upheld if the court can find any rational (legitimate) basis for it. Judges are even permitted to come up with their own rational basis if the government can’t come up with one.
Cities have a police power to regulate things that affect the health, safety, and morals of their city. Zoning laws (such as dispensary bans) fall within that police power and, when challenged, are reviewed under rational basis scrutiny. Additionally, as in most lawsuits, the burden is on the plaintiff. The winner of a lawsuit frequently depends upon who has the burden of proving their case. So, a dispensary challenging a ban must prove that there is not even a single rational basis for the ban, which is virtually impossible. Reducing crime, littering, loitering, traffic and even immoral actions (even by the tiniest bit) are all sufficient rational bases.
On the other end of the spectrum is strict scrutiny. For a law to survive strict scrutiny, it must further a compelling (extremely important) government purpose, be narrowly tailored to affect that purpose without being overbroad and there cannot be a less-restrictive alternative for accomplishing the compelling purpose. And, here’s the kicker: Under strict scrutiny, the burden of proof shifts to the government.
So, the government has to prove that the ban 1) furthers an extremely important purpose; AND 2) that it’s not overbroad; AND 3) there is no less-restrictive means of furthering the purpose. If it fails to prove any of those elements, the ban is unconstitutional. As a result, the government almost always loses. It’s said that strict scrutiny is “strict in theory, fatal in fact.”
So, now we know that we want our challenge reviewed under strict scrutiny rather than rational basis. But, what challenges are reviewed strictly? Fundamental constitutional rights such as speech, life and liberty. At one time, “economic liberty” or the right to engage in business was considered fundamental, but not anymore.
Instead of a business challenging a zoning law, we need a patient challenging the city’s right to deny him/her their medicine. I believe that denying a legitimate patient convenient access to medicine infringes upon that patient’s fundamental, constitutional right to life.
It should be noted that you’re not entitled to access to any medicine you chose. For example, the government’s ban on peyote was upheld because peyote is banned for all purposes (as is marijuana under federal law). However, medical marijuana is legal under California law, and a city has no authority to prevent patients from using it as medicine.
Here’s a blueprint for beating medical marijuana bans:
Select a city to challenge. Find a patient who lives in that city to be the plaintiff. The patient should use medical marijuana for a serious reason, such as cancer, so that jurors will take him/her seriously. The patient should engender compassion and respect, not a young, healthy, person who appears to be a recreational user. And, the patient must be prepared for publicity.
Fund the lawsuit. Regardless of who wins at trial, this case will be appealed all the way up to the California Supreme Court (possibly even the U.S. Supreme Court, although I doubt they would grant review). It’s unlikely that any patient could afford this or would be willing to spend so much money just to have a dispensary in their town.
The people who should pay for this lawsuit are those who will benefit, financially, from its success: dispensary owners. The dispensaries in the patient’s city would be the initial beneficiaries of this lawsuit. Similarly, other dispensaries should chip in, too, because an appellate court ruling that states city bans on dispensaries are unconstitutional would apply to every city in California.
The cities are organized. People like L.A. County Dist. Atty. Steve Cooley are working hard to convince more cities to ban dispensaries. Unfortunately, it seems to be working. If we continue to fight individual, impossible battles, they’re going to keep winning and patients are going to continue being denied access to legal medicine.
Attorney Jeff Schwartz can be reached at (888) 7300-LAW or jeff@Schwartz4Law.com
