Pages tagged "Pack v. City of Long Beach"


Cutting through the legal quagmire, patients demand safe and legal access to medical marijuana



 

 

 

 

 

 

 

 

 

 

Last Friday, patient advocates Americans for Safe Access (ASA) filed an amicus ‘friend of the court’ brief in City of Riverside v. Inland Empire Patient’s Health and Wellness Center to convey the urgent need for safe and legal access to medical marijuana. In what is possibly the most important issue currently facing hundreds of thousands of patients in California, ASA urged the State Supreme Court to reject the notion that municipalities can ban local distribution of medical marijuana, thereby cutting off access. Specifically, ASA argued in its brief that:
While municipalities may pass reasonable regulations over the location and operation of medical marijuana collectives, they cannot ban them absolutely. These bans thwart the Legislature’s stated objectives of ensuring access to marijuana for the seriously ill persons who need it in a uniform manner throughout the state.

In addition to the Riverside case, the State Supreme Court is reviewing the Pack v. City of Long Beach decision, which involves issues of federal preemption. Adding even more appellate decisions to the mix, last week the Second District issued two conflicting rulings. One of the rulings in County of Los Angeles v. Alternative Medicinal Cannabis Collective held that dispensaries were legal under state law and that municipalities could not ban them.

At the time, ASA Chief Counsel Joe Elford said in a prepared statement that:
The court of appeal could not have been clearer in expressing that medical marijuana dispensaries are legal under state law, and that municipalities have no right to ban them. This landmark decision should have a considerable impact on how the California Supreme Court rules in the various dispensary cases it’s currently reviewing.

There are a staggering 178 cities in California that have completely ignored the needs of patients in their community by adopting bans against medical marijuana dispensaries. However, there are more than 50 municipalities, which have adopted regulatory ordinances that have safely and legally accommodated for the needs of their patients, as well as other members of their communities. An increasing number of studies also show that regulating dispensaries will decrease crime and increase the quality of life in surrounding neighborhoods.

Patient advocates are not putting all their eggs in the California Supreme Court basket. There is still an effort afoot to pass legislation next year to regulate medical marijuana at the state level. The statewide ballot initiative process is yet another option available to patient advocates and one that will definitely be considered in the months ahead.

CA Supreme Court Grants Review to Pack and Riverside, Local Lawmakers Should Take Note

The California Supreme Court has made a move that should improve safe access by granting review for two controversial medical marijuana cases decided by lower appellate courts in 2011. As a result of this move, both Pack v. City of Long Beach (link to ASA blog on Pack), and Riverside v. Inland Empire Patient's Health and Wellness Center, are effectively decertified until the court reaches its final decision, a process which some expect to go on for two years, as Ross v. RagingWire took two years to decide.

The decisions by the lower appellate court in both of these cases have been harmful for patient access to medicine, but the Pack fallout has been particular damaging. The Pack ruling in October set off a firestorm of cities and counties moving to ban dispensaries throughout the state, even beyond the Second District of the CA Court of Appeals where the case was decided. These panicked reactions by lawmakers have resulted in weakened availability to medicine for Californian patients. As is stands now, Pack and Riverside are now dead letters.

California Cityand County legislators should take note of the impact of this move by the state high court before moving forward with any further legislation as a result of lower court’s Pack ruling. A city or county presently considering a dispensary ban based upon Pack, such as the largest city in the state, ought to recognize that they would be undermining patients’ ability to obtain medicine they need, all in reaction to a case that no longer has legal authority. Regardless of the ultimate outcome of the Pack and Riverside decisions, making rash policy changes that are harmful to the health of Californians following the decertification of Pack seems like an unnecessary proposition at best.

CA Court of Appeals Pack decision: http://safeaccessnow.org/downloads/Pack_v_Long_Beach.pdf

CA Court of Appeals Riverside decision: http://www.courtinfo.ca.gov/opinions/documents/E052400.PDF

California Appellate Court Creates Contradictory Law on Federal Preemption of Medical Marijuana Dispensaries



 

 

 

 

 

 

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.