Unpermitted dispensaries fails to get ordinance invalidated


By Cori Badgley


A medical marijuana dispensary has lost its fight to invalidate a Los Angeles County ordinance regulating dispensaries and to overturn an injunction shutting down the operation.


This is just the latest skirmish in the battle over medical marijuana dispensaries that has raged throughout much of California. The Legislature adopted the Medical Marijuana Program Act in 2003 as a follow-up to the Compassionate Use Act, which was approved by voters seven years earlier. The 2003 law permits marijuana collectives and cooperative cultivating projects.


In light of this law, medical marijuana dispensaries began cropping up throughout counties and cities, often taking advantage of jurisdictions that had no zoning or permit scheme in place for such establishments (which previously had been illegal). In reaction to these dispensaries and the 2003 law, many counties and cities, including Los Angeles County, began establishing medical marijuana dispensary ordinances.


Adopted in 2006, the Los Angeles County ordinance required that dispensaries in the unincorporated territory obtain a conditional use permit and business license. The ordinance prohibited dispensaries within 1,000 feet of "schools, playgrounds, parks, libraries, places of religious worship, child care facilities, and youth facilities." Dispensaries were permitted in the C-1 commercial zone as long as they met the above requirements.


Based on its ordinance, the county brought a nuisance action in Superior Court against an the Alternative Medicinal Collective of Covina, and its owner/operator, Martin Hill, who failed to apply for, or receive, the necessary permit. The trial court granted a preliminary injunction preventing the dispensary for operating unless it complied with the ordinance. The dispensary appealed.


In an attempt to overcome the preliminary injunction, the dispensary launched a barrage of arguments against the ordinance and the county's actions in enforcing the ordinance. The dispensary argued: (1) The ordinance was preempted by state law; (2) The ordinance was inconsistent with state law both on its face and as applied to Alternative Medicinal Collective; and (3) The ordinance was unconstitutional because it violated the Equal Protection Clause.


As to the first two arguments, the dispensary faced an uphill battle because of prior case law and the recent enactment of Health and Safety Code § 11362.768. In 2009, the Court of Appeal, Second Appellate District, decided that the Medical Marijuana Program Act did not preempt local government from regulating medical marijuana dispensaries. (City of Claremont v. Kruse, (2009) 177 Cal.App.4th 1153; see CP&DR Legal Digest, October 1, 2009 [http://www.cp-dr.com/articles/node-2445]). In 2010, the Legislature approved Health and Safety Code § 11362.768, which states, "Nothing in this section shall prohibit a [county] from adopting ordinances or policies that further restrict the location or establishment of a medical marijuana … dispensary … ."


Based on the Claremont decision, the new law and the 2003 Medical Marijuana Program Act, the appellate court found that the act in no way preempted the ordinance, and that the county properly regulated the dispensaries within its jurisdiction.


The appellate court also found that the dispensary's equal protection argument had no merit. Alternative Medicinal Collective argued that because the dispensaries were not allowed to operate in the same zones as pharmacies, the ordinance violated the Equal Protection Clause. However, the court ruled the county had a rational basis for finding that dispensaries pose different risks from pharmacies and should therefore be regulated differently.


Finding in favor of the county on all arguments, the appellate court upheld the preliminary injunction. It is likely that the county will go on to win its nuisance action, resulting in the dispensary's closure. That closure could be permanent, as the county in December 2010 banned medical marijuana dispensaries in all of unincorporated Los Angeles County. The court did not rule on the new ordinance, which is under separate legal attack.


The Case:
County of Los Angeles v. Hill, No. B216532, 2011 DJDAR 2345. Fled February 10, 2011.


The Lawyers:
For the county: Sari J. Steel, county counsel's office, (213) 974-1853.

For Hill: J. David Nick, (415) 552-4444.