A new appellate decision from the Second Appellate District in Pack v. Superior Court (City of Long Beach)

The Court of Appeal in the Second Appellate District, Division Three in Long Beach filed its opinion in Pack v. Superior Court (City of Long Beach), Case No. B228781, in which the plaintiffs filed a declaratory relief action, arguing the city's ordinance is invalid because it is preempted by federal law.  The city set up a system which required a $14,742 non-refundable application fee, and if the collective was approved, it could participate in a lottery for a limited number of permits.  If you were lucky enough to obtain a permit, your collective would pay a minimum of $10,000 annually for a license and be subject to heavy regulations, including having your marijuana analyzed for quality control by an independent lab.

The appellate court held that the ordinance, which permits and regulates medical marijuana collectives, is preempted by federal law, or more specifically, the federal Controlled Substances Act (CSA).  Enacted in 1970, the CSA puts marijuana on Schedule 1, and as such, this scheduling reflects a government determination that marijuana has no accepted medical use.  It is also illegal under federal law to maintain any place for the purpose of manufacturing, distributing, or using any controlled substances.  (21 U.S.C. sec. 856(a)(1).)

California disagrees with this position, and in 1996, a majority of citizens approved the medical use of marijuana by approving Proposition 215, which is known as the Compassionate Use Act (CUA).  In 2003, the Legislature then enacted portions of the Health & Safety Code, now known as the Medical Marijuana Plan Act (MMPA), which seeks to impose some order on this scheme.  (Health & Safety Code sections 11362.5, et seq.)  The MMPA decriminalizes under state law the acts of collective cultivation and maintaining a place for sale or use of medical marijuana.

The Long Beach ordinance defines a "collective" as an association of four or more qualified patients and their primary caregivers who associate at a location within Long Beach.  Plaintiff's complaint did not allege that the ordinance applied to personal cultivation outside of a collective and the City's attorney conceded that the ordinance did not apply to prohibit personal cultivation and possession.  As such, the appellate court did not address this argument.

The plaintiffs argued the City's ordinance went beyond mere decriminalization and "permitted" conduct prohibited by the federal CSA, and for that reason, it was preempted.  And since all drug use, according to federal law, is recreational and illegal, then any ordinance establishing a permit scheme for medical marijuana collectives is an obstacle to federal law and thus preempted.  The appellate court remanded the case back to the trial court to determine if any provisions of the ordinance could be severed from the preempted portions and given independent effect. 

Comments

[Adam Sostrin]

Excellent article regarding the Pack decision. Of course, now we will have to see what is the PERMITTED range of conduct under city, county and/or statewide ordinance pertaining to the regulation of medical marijuana and collectives and cooperatives. At least to this court, most things permissible may be federally preempted under the CSA. A reading of Qualified Patients v. City of Anaheim is entirely different, however.