Calif. Cities Sued Over Medical Marijuana Ordinances

May 11, 2010

Amanda Bronstad, The National Law Journal

Medical marijuana dispensaries have filed lawsuits against California cities, including Los Angeles, challenging ordinances that effectively threaten the existence of their businesses.

Besides the dispensaries, the plaintiffs include medical marijuana users and organizations that promote the use of medical marijuana.

Vincent Howard, founding partner of Howard | Nassiri, based in Anaheim, Calif., who represents at least 10 dispensaries in Los Angeles, expects more suits to be filed.

"As long as cities want to turn a blind eye and pretend like this isn't coming, there's going to be a lot of lawsuits and a proliferation of dispensaries," he said.

"We continue to see in California dispensaries trying all sorts of creative ways to try to establish their legality under cities' municipal codes," said Jeffrey Dunn, a partner in the Irvine, Calif., office of Best Best & Krieger. He is defending Lake Forest, Calif., in several suits. "To date, none of them has been successful."

On March 18, the nation's largest medical marijuana organization, Americans for Safe Access, sued the city of Los Angeles over an ordinance that requires that dispensaries be located at least 1,000 feet from schools, parks, libraries, churches and other "sensitive uses."

Earlier this month, city prosecutors sent letters to 439 medical marijuana dispensaries, demanding they be shut down by June 7. Violators face six months in jail and a $1,000 fine, which increases to $2,500 per day after the deadline.

Americans for Safe Access sued on behalf of two dispensaries, Venice Beach Care Center and PureLife Alternative Wellness Center. In its complaint, the organization said that the ordinance is too restrictive. It would be too burdensome for many dispensaries to relocate, "effectively forcing plaintiffs, as well as the vast majority of medical marijuana collectives in the City, to close their doors," the complaint said. "This violates due process, since plaintiffs have a vested right to operate their collectives, which cannot be deprived in such an unreasonable manner."

Joe Elford, chief counsel for Americans for Safe Access, which is based in Oakland, Calif., did not return a call for comment. Frank Mateljan, a spokesman for Los Angeles City Attorney Carmen Trutanich, said: "We're ready to defend the city's ordinance against any challenges, and we're confident that the ordinance will stand up in court."

Two other cities that have been sued in recent months include Lake Forest and Costa Mesa, Calif., both in Orange County. A proposed class action was filed on April 2 in federal court in Los Angeles against both cities on behalf of four medical marijuana users. The plaintiffs alleged that the towns have discriminated against them under the Americans with Disabilities Act by denying them fair access to public services.

"Each plaintiff is dependent on the use of medical marijuana to assist with their being able to participate in major life activities and receive services or participate in programs provided by public entities such as: use of public transportation, public roadways, libraries, parks and other public services," the complaint alleged.

U.S. District Judge Andrew Guilford in Santa Ana, Calif., on April 30 denied the plaintiffs' motion for a preliminary injunction. "Because marijuana cannot be prescribed under the ADA, the Court finds no likelihood of success on the merits," he wrote.

A lawyer for the plaintiffs, Matthew Pappas of the Law Offices of Matthew Pappas in Mission Viejo, Calif., said that he was exploring his interlocutory appeal options.

"Our position is that the federal government has acted to allow an exception" under the ADA, he said. He noted that city leaders in Washington recently approved the use of medical marijuana.

A lawyer for Costa Mesa, James Touchstone of Jones & Mayer in Fullerton, Calif., did not return a call for comment.

Dunn noted that the Lake Forest ordinance does not ban dispensaries; it merely disallows them in commercial zones. "Whether they're in compliance with state law, they're not in compliance with our zoning," he said.

Lake Forest has sued 21 dispensaries since September, he said. One dispensary, the Lake Forest Wellness Center and Collective, countersued on April 13, alleging that the city's actions violate state law.

"I know the subject of marijuana has been a taboo subject for a long time, but it's a legal business," said Howard, who represents the Lake Forest Wellness Center and Collective. "People should be allowed to move forward and open these businesses. It's not up to the cities to change California law."

Another suit, filed on April 16, alleged that Costa Mesa "severely restricts access to medical marijuana effectively forcing plaintiffs, as well as the vast majority of medical marijuana collectives in the City, to close their doors."

The suit was filed by the Orange County Directors Association and two dispensaries, Herban Elements Inc. and Medmar Patient Care Collective. An attorney for the plaintiffs, Christopher Glew of Glew & Kim in Santa Ana, did not return a call for comment.

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