AN APPEAL TO REASON

In a recent post by Professor Shaun Martin at the University of San Diego, School of Law, at http://calapp.blogspot.com/2011/02/county-of-los-angeles-v-hill-cal-ct-app.html, he raises what I consider to be the "political" aspects of deciding appeals when he discusses the recent decision in County of Los Angeles v. Hill, 2011 Cal.App. LEXIS 161. This case is one of many we are facing and will continue to face in disputes concerning the operation of medical marijuana dispensaries. I reported on this aspect in my January 21, 2011 post entitled "Is the Supreme Court a 'Highly Respected Institution,' as Justice Scalia Insists?" If justice were simply black and white, and based on applicable law, then everyone would reach the same decision on the same set of facts. That we don't, in my opinion, confirms that personality, personal viewpoints, and politics all enter into the decision.

This case has something to offer appellate practitioners on the procedural aspects of appeals. In Hill, defendants Martin Hill and the Alternative Medicinal Collective of Covina appealed from an order granting a preliminary injunction, prohibiting them from dispensing medical marijuana in any unincorporated area of Los Angeles County without first obtaining the necessary license and permits required by the County ordinances. The court of appeal affirmed the injunction order. While the decision may not appear to be a "death knell" to defendants' operation of their dispensary, given the County's past conduct and new ordinances, it effectively banned dispensaries in these areas.

Defendants argued they were not required to obtain permits and licenses because the entire area of medical marijuana dispensaries is preempted by state law, the ordinances are inconsistent with state law, and they are being discriminated against. The court noted that in Health and Safety Code section 11362.5(b)(2), the Compassionate Use Act does not supersede legislation that prohibits persons "from engaging in conduct that endangers others . . ." The question of what "endangers" others certainly involves point of view and even politics. Section 11362.83 also allows a city or other local government to adopt and enforce laws "consistent" with this article. In addition,new legislation became effective January 1, 2011, which attempted to partially regulate dispensaries and noted that they "ordinarily require[s] a local business license." (Health & Safety Code section 11362.768.) Subsection (e) prohibits a dispensary within a 600-foot radius of a school, but the city could enact more restrictive provisions, extending that limitation to a 1000' radius.

The County of Los Angeles adopted an ordinance in June 2006, which required a conditional use permit. The County ordinances also required that a dispensary obtain a business license. The defendants began operating their dispensary in an unincorporated area of the County, but they failed to obtain a business license, a conditional use permit, and a zoning variance (because the dispensary was located within a 1000' radius of a public library). The defendants did not deny they failed to perform these acts; rather, they argued these requirements were preempted by state law. After the trial court granted the preliminary injunction, the defendants filed a timely appeal rather than seeking these permits and licenses.

An order granting a preliminary injunction is reviewed on an abuse of discretion standard of review and is analyzed as to (1) plaintiff's likelihood of success on the merits at trial, and (2) the balance of harm to the parties. The defendants did not address the balance of harm factor, choosing to focus solely on the first factor. And despite the language of the Compassionate Use Act and the Medical Marijuana Program Act, defendants argued the ordinances were totally preempted and were inconsistent with state law. The court of appeal disagreed.

The defendants then argued that even if the CUA and MMPA are facially consistent, the ordinances are so restrictive when they are applied that it is practically impossible to open a dispensary. The court concluded the defendants' evidence did not support defendants' argument. First, defendants claimed the $11,500 fee for a conditional use permit was prohibitive. The court stated defendants did not produce evidence that the County charged a higher fee to dispensaries than other businesses or that the fee was unreasonable. As to the zoning restrictions, defendants' attorney then submitted a declaration based on information and belief, rather than personal knowledge, that no dispensary could exist without violating the ordinance. The defendants attempted to request judicial notice of a map of the County's zones, but that request was denied because there was no showing it was offered to the trial court below. While the court found the County's evidence was also insufficient, it noted the C-1 zones permit a number of other businesses to operate, and this refuted defendants claim that dispensaries were relegated to remote and unreasonably inconvenient locations.

Finally, the defendants argued that the County had never approved a single permit for a dispensary. The County did not dispute this fact, but offered an explanation as to the two previous applications. Moreover, the court refused to consider defendants' argument on this point - including a claim that others were deterred from applying by the hearing officers' unfettered discretion - because they raised it for the first time in a reply brief. The court rejected any argument that the ordinances violated the equal protection clause of the California Constitution and rejected an argument that dispensaries and pharmacies are "similarly situated." It concluded the County, which offered expert testimony that would suggest a dispensary's activities "endanger" others, provided a rational basis for the zoning restrictions.