California Appellate Court Creates Contradictory Law on Federal Preemption of Medical Marijuana Dispensaries
October 05, 2011 | Joe Elford
The California Court of Appeal for the Second Appellate District issued an opinion yesterday in Pack v. City of Long Beach, a case involving a medical marijuana dispensary ordinance adopted last year by the Long Beach City Council. The court did not invalidate the ordinance in its entirety, but instead found that federal law preempted certain provisions of the city’s permitting scheme. In particular, the court found that the provisions of the ordinance granting permits to dispensaries through a lottery system at a significant, recurring fee, are preempted by federal law.
Notably, the court made a distinction between a permitting or licensing scheme and an ordinance that would merely protect such facilities against local civil or criminal prosecution. This leaves open the possibility that Long Beach could comply with the court’s decision simply by making semantic changes to its ordinance, requiring “registration” rather than “permits” or “licenses.”
The Long Beach decision expressly disagrees with two published decisions on federal preemption by the Court of Appeal for the Fourth Appellate District, one in County of San Diego v. San Diego NORML and another in Qualified Patients Association v. City of Anaheim. Because of this appellate conflict, the Long Beach decision is not binding on trial courts outside of the Second Appellate District. Sadly, this ruling creates more uncertainty about localized medical marijuana distribution, instead of resolving it.
Americans for Safe Access (ASA) argued against federal preemption in the Long Beach case by filing an amicus ‘friend of the court’ brief in June with the American Civil Liberties Union (ACLU) and the Drug Policy Alliance (DPA). Unfortunately, the court disregarded those arguments and chose to throw a wrench into the implementation of California’s medical marijuana law.
ASA will, in all certainty, file a request for depublication of the Long Beach decision, which is not yet final. There is a possibility that the California Supreme Court will grant review of the decision or depublish it, especially since it is our belief that the court applied an incorrect preemption analysis.