Cities Cannot Ban Medical Marijuana Dispensaries in California

LISA SELAN, ESQ.

What the decisions in City of Lake Forrest v Evergreen Holistic Collective and The People v Colvin mean to the California Medical Marijuana Community

Within the past week two critically important medical marijuana cases were decided by two published Appellate District Courts in the State of California that will have an enormous impact on how cities regulate or refuse to regulate medical marijuana dispensaries within their municipalities.

The Lake Forrest case unequivocally decided that cities within the state of California cannot ban medical marijuana dispensaries. Lake Forrest has a de facto ban neither allowing nor prohibiting medical marijuana dispensaries within its zoning provisions. The city declared that Evergreen Holistic Collective was a per se nuisance because medical marijuana dispensaries were not zoned within the cities borders. The trial court upheld the cities determination that operating a medical marijuana dispensary is a nuisance per se. The Appellate court reversed and remanded.

The Fourth Appellate District court determined the following:

1. California medical marijuana law is embodied in Prop 215, the Compassionate Use Act (CUA) and SB420 (MMPA) which has been codified in the Health and Safety Code (11362 et. seq.) in 2003.
2. The CUA clearly encourages that the "federal and state governments implement a plan to provide for the safe and affordable distribution of marijuana of marijuana" (italics added). The court interpreted "all patients in medical need" to mean that local ordinances cannot exclude their California patients from having access to medical marijuana within their jurisdiction.to all patients in medical need
3. The voter's intended to motivate state and federal governments to work together to provide medical marijuana accessibility, a policy concern much broader that local interests.
4. The Attorney General Guidelines anticipated that collective and cooperative distribution may include a storefront dispensary.
5. A person may participate in a lawful cooperative without any requirement that he or she personally must create the goods that stock the shelves of the cooperative. In other words a patient has no requirement to grow their own medicine.
6. The "home rule" doctrine does not allow a local ordinance to conflict with general state laws when the state law regulating the matter is of "statewide concern". The Appellate Court determined that California's medical marijuana law is of "statewide concern" and that local ordinances cannot ban collectives within their city.
7. The court acknowledges that cities can restrict the location and establishment of a medical marijuana cooperative, but it cannot outright ban them. But cities MUST consider the right of sick patients including those that cannot travel far having access to medical marijuana when they allow cooperative and collective projects in certain zones and not in others.
8. Finally, the Appellate Court decided (and I believe they were erroneous in this determination) that collective and cooperative cultivation meant "on-site" cultivation. (This was determined differently in the Colvin case which is discussed below).

In The People v William Frank Colvin, the Second Appellate District reversed the trial court's decision finding that Colvin who was transporting a pound of marijuana was not entitled to the defense of Health and Safety Code Section 11362.775 which allows the defense to specified classes of people, who "associate...in order collectively or cooperatively to cultivate marijuana for medical purposes." The court determined that transportation has nothing to do with the cultivation process, and the Appellate Court reversed.

The Second Appellate District court determined the following:

1. Colvin co-owns and operates two medical marijuana dispensaries (Hollywood Holistic 1 & 2) and to date has complied with all of the cities licensing requirements.
2. Holistic has 5,000 patients and has 14 members who grow both locally as well as in Humboldt. Holistic also has three on-site grow rooms. All marijuana that Holistic distributes is from its collective members/growers.
3. The intention of the CUA and MMPA is to "Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." The Appellate Court determined that irrespective of the fact that some of the marijuana is grown off-site, since it is grown and distributed by a cooperative member and none of it is from an outside source, Colvin was entitled to immunity afforded by California law.
4. While the Attorney General tried to emphasize that the size of Colvin's collective looked like "a large-scale, wholesale-retail marijuana network" and that a collective "must entail some united action or participation of all those involved," the Appellate court said that NOTHING ON THE FACE OF THE STATUTE SUPPORTS THIS INTERPRETATION! (emphasis added)
5. The Second Appellate District court (similarly to the Fourth Appellate District court in Lake Forrest) discussed the interpretation of the what it means to "collectively or cooperative" cultivate medical marijuana. The court relied on the interpretation of other types of cooperatives such as consumer cooperatives and grocery cooperatives. It would be unfair to require members of a medical marijuana cooperative to participate in a different way than members of other cooperatives whose only participation might be to shop at the cooperative.
6. Pursuant to the Attorney General's Guidelines from 2008, "collectives and cooperatives may cultivate and transport marijuana in aggregate amounts tied to its membership numbers." And that nothing on the face of Health and Safety Code Section 11362.775 requires a specified number of members to be involved in the cultivation efforts.
7. Colvin clearly determined that "collective cultivation" does not imply "local" cultivation but only requires that all cultivation must be done by members of the collective or cooperative.

While clearly the Appellate courts in the Lake Forrest case and the Colvin case interpreted the terminology in SB 420 (MMPA) "collective cultivation projects" differently, the emphasis on "local" meaning "on-site" in Lake Forrest is a word interjected by the court that is not in the language of MMPA. In fact, the court in Colvin specifically acknowledges that the collective members grow on-site, in off-site grows as well as in Humboldt, yet that as long as all of the marijuana is obtained by members of the collective, the collective is meeting the "collective cultivation projects" definition.

So what does all of this mean? Cities CANNOT BAN! And irrespective of the different interpretations of what "collective cultivation projects" means, the court in Lake Forrest created an interpretation that is conflicted by the court in Colvin. By adding the word "local cultivation-sites" I do not believe that this is a correct interpretation of the MMPA. Imagine an agricultural cooperative that depends on its members (who grow on their own property) to now only be able to grow on one piece of land. This would require medical marijuana collectives or cooperatives to be treated differently that other cooperatives and collectives, something the court in Colvin said could not be done.

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