MEDICAL MARIJUANA LAW / LAND USE ISSUES
Local Land Use & Permitting Issues for Opening a Medical Marijuana Dispensary
Medical marijuana collective dispensaries are required to follow the same building codes, land use and local permitting ordinances as other businesses. They need to obtain building permits before doing most lease hold improvements. They need to observe local zoning laws. They may have to follow special rules that apply to medical marijuana collective dispensaries. They may need to obtain conditional use permits. They may also be required to obtain business licenses.
Despite the language of the Compassionate Use Act and the Medical Marijuana Program Act, many cities have ordinances which ban medical marijuana collective dispensaries on a city wide basis. This means the collective may be required to institute litigation to resolve the city's refusal to allow medical marijuana collective dispensaries or simply comply with the normal business practices allowed by the planning department.
There have been a number of California Appeals Court cases that have either begrudgingly acknowledged the intent of the CUA or have just flat out thumbed their nose at what most knowledgeable lawyers feel is the law. Recently, The Fourth District Court of Appeal in the Inland Empire gave cities the absolute right to ban medical marijuana collective dispensaries outright regardless of the CUA.
Recently, the California Supreme Court accepted four different cases for review – one from the Second District Court of Appeal and three from the Fourth District Court of Appeal. The Fourth District Court of Appeal just decided the case of City of Lake Forest v. Evergreen Holistic Collective on February 29, 2012. It held that because a city's ban against all medical marijuana dispensaries directly contradicted state law, it was preempted and furnished no valid basis for a preliminary injunction in the city's favor. Elsewhere, the Second District Court of Appeal ruled that a local ordinance enacted by the City of Long Beach was illegal because it legalized an activity that was illegal under federal law. Cities all over California interpreted this decision to mean that cities are powerless to regulate medical marijuana collective dispensaries and many, who had previously allowed them to exist. A careful reading of that decision should not cause one to come to that decision.
The California Supreme Court was supposed to sort things out but has sent the issue back to local jurisdictions'. The Compassionate Use Act was intended to mean exactly what it says – that seriously ill patients in California have the right to access to affordable medical marijuana with a doctor's recommendation.
Of course, the federal government in many areas has chimed in when local jurisdictions start to "Whine". Few people are aware of the fact that the federal government (Yes - The United States Congress and the Senate) passed legislation making medical marijuana legal in the District of Columbia. Local DA's have been allowed by our current administration to ignore the concept of equal protection, however, and "Cherry pick" the areas where impose the weight of government so as to scare local medical marijuana collective dispensaries and their landlords out of existence. Eventually, this issue will become, by necessity, the subject for the United States Supreme Court. Ultimately, I think that the United States Supreme Court will decide that the federal government has enough things to do and should not be worrying or committing resources to an issue that should, as it had in The District of Columbia, be decided by States.