Appeals Court Strikes Down Meat of City's Medpot Ordinance
- Details
- By Staff Reports
- | Wednesday, 05 October 2011 03:35
9:10am | Reporting by Greggory Moore | The Second Appellate District Court of Appeal ruled Tuesday that much of Long Beach's medical-marijuana ordinance is in violation of federal law, thus striking down several of its provisions, including all of those pertaining to the permitting process for collectives.
The ruling, authored by Judge Patrick T. Madden, was handed down in the case of Ryan Pack et al. v. the Superior Court of Los Angeles County, in which petitioners Pack and Anthony Gayle sued the City of Long Beach under the theory that the City's entire medpot ordinance is invalid because it is preempted by federal law, since (as Madden writes) "the City’s ordinance went beyond decriminalization and insteadpermitted conduct prohibited by the federal CSA [i.e., Controlled Substances Act], and thus was preempted."
The case is remanded to the trial court for the resolution of several issues, but what seems to be the crux of the matter has been decided: the City's entire permitting process has been found to be illegal, since "[a] law which 'authorizes [individuals] to engage in conduct that the federal [Controlled Substances] Act forbids … "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress"' and is therefore preempted."
This would appear to mean that not only must the City cease its permitting activity — which has consisted mainly of various enforcement actions against collectives (including armed raids) for operating without a permit — but it will likely be compelled to refund all of the approximately $800,000 collected in regards to the September 20, 2010 lottery.
Additionally, it appears the City will have to dismiss all criminal and civil charges, be they against individuals or collectives, related to operating a collective without a permit.[i]
Lastly, the City is likely to face numerous lawsuits from patients and collectives who will claim to have been denied their state-sanctioned right "collectively or cooperatively to cultivate marijuana for medical purposes" by virtue of a permitting process that has been found to be illegal.[ii]
This decision came as no surprise to Matthew Pappas, Pack and Gayle's attorney, who says that during oral arguments at a September 13 hearing the judges in the case stated that by that point they had already "tentatively determined that the ordinance is preempted. [So] the question is no longer whether it's preempted, it's how much of it might survive preemption."
That is what the trial court will decide when they take up the remaining issues. But Pappas says that hardly matters, calling the ordinance "effectively dead now."
Important to note is that in no way does the Pack decision affect the protections afforded California medpot patients. As Madden writes, "Case law has concluded that California’s statutes are not preempted by federal law, as they seek only to decriminalize certain conduct for the purposes of state law. … [And] [w]hile the [Compassionate Use Act] decriminalizes the cultivation and possession of medical marijuana by patients and their primary caregivers,the [Medical Marijuana Program Act] extends that decriminalization to possession for sale, transportation, sale, maintaining a place for sale or use, and other offenses."
Long Beach Post attempted to contact the City Attorney's office late in the day Tuesday, without success.
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[i] In August 2011 the offices of the City Prosecutor and City Attorney tallied for Long Beach Post the amount of outstanding cases, placing the number at more than 50, most of which related to operating a collective without a permit. However, several more similar charges have been filed since then.
[ii] The first cost the City will have to pay, though, has already been determined, as Madden notes at the end of his decision: "The petitioners shall recover their costs in this proceeding."
For a City Council that went out of its way to undergo redistricting that was completely unnecessary in order to avoid potential lawsuits, continuing to fight this lawsuit instead of banning all MedPot dispensaries in the city effective January 1, 2012 seems contradictory.
Had the City Council done the right thing to protect the citizens of the city, protect the neighborhoods of the city and protect the long term fiscal health of the city and banned the dispensaries this would now be a non-issue.
I sat through numerous City Council meetings where lawyers and medpot representitives spoke before Long Beach's City Council that what they were doing was illegal and they were going to sue the city if it followed through on City Attorney Shannon's legal advice.
The medpot representitives and their lawyers followed through on their claims. And now us taxpayers are going to have to pay the multi million dollars to reimburse those impacted.
Most sensible individual would have anticipated problems near a medpot facility, but the City Council was blinded by their efforts to increase revenues.
The Citys' only disappointment was that the state did not legalize marijuana outside of medical uses. They were ancipating a windfall if the people agreed to legalize all uses of marijuana.
State law likewise does not preempt federal law for federal purposes. So long as the federal purpose for marijuana is that it remain a schedule 1 controlled substance, all the local and state laws in the world will not immunize those who violate those federal laws from federal prosecution.
Judge Madden was quite clear: "...the City's ordinance went beyond decriminalization and instead permitted conduct *prohibited by* the federal CSA [i.e., Controlled Substances Act]..."
This is yet another aspect of this discussion that is often lost upon some. Neither CUA nor MMPA "legalize" anything, they just de-criminlize (from the state's perspective) marijuana production, dispensing, and use under certain specific conditions.
CUA and MMPA notwithstanding, marijuana remains illegal in California just as it does in every other state. California has simply chosen to not seek state-level prosecutions for those who violate those laws.
The federal government is under no such constraint.
The only way we can make sure that the federal government will be under such constraint is to cause marijuana to be removed from schedule 1 or from the drug schedules altogether and truly allow the states to decide for themselves how they want to address the issue.
Unless and until we do, the sort of costs and complications mentioned in this article are only going to continue.
Legalize it, regulate the hell out of it, then tax the crap out of it.
@Crum: Kathy Ryan did not say that the shooting on 7th street was related to the MedPot shop where the shooting occured, or in front of which the shooting occured. Kathy said an individual addressing the City Council said there was a shooting in front of the MedPot shop. Everyone knows you have issues with Ms. Ryan, but before your standard attack on her why don't you read what she writes?
Good riddance, and we will remember at the ballot box the "councilmembers" who supported this ordinance. See ya!
Second, fire the City Attorney.
Third, remove the Mayor.
Over the past few years there has been so much incompetence in the operation of this city it is time to find some city management that knows what they are doing.
"Most sensible individual would have anticipated problems near a medpot facility, but the City Council was blinded by their efforts to increase revenues."
A direct indictment of the "medpot facility" vis a vis the shooting. Not a splinter of evidence, however.
When I write "legalize it, regulate it, tax it", I'm obviously referring to marijuana in a general sense. It's simply ridiculous to criminalize it. It's time we quit wasting billions of dollars "fighting" something that will never be beaten.
Moreover, the court decision said the city CAN'T restrict the facilities, so therefore they can't ban all sales. It's a federal issue, as the court says, and they're choosing by and large to ignore it.
Also, now that these rules have been found to be illegal, where does that leave the existing med-pot facilities? Will they be allowed to continue?
Lastly, will this case produce any significant impact on how other cities are managing dispensaries? Is there a good municipal model that the City can duplicate here?
A poss 1.7 BILLION $$ industry will not just go away, wait and see.
Yep, smooch smooch, kiss em good-bye.
Med Pot Proponents - you insisted on bringing this issue out into the light of day. Do not now complain that the light shines too brightly. You've thrown your truly ill compatriots under the bus - they are the ones who will endure the loss of safe access to medicine while the rest of you will just have to go back to buying your pot on the down low.
www.nytimes.com/2009/03/19/us/19holder
Obama administration now:
http://latimesblogs.latimes.com/lanow/2011/10/feds-cracking-down-on-california-medical-marijuana-dispensaries
How's all that "hope and change" working out for you?