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Medical Marijuana Dispensaries: Legitimate Land-Use or Public Nuisance?

Posted by HMS Law Group | Feb 24, 2014 | 0 Comments

By D. Ken Brock –

Last year, the California Supreme Court provided some badly-needed clarification regarding a land-use condition which has likely generated more discussion and debate than any other in recent memory.  Specifically, in City of Riverside v. Inland Empire Patients Health & Wellness, the Court definitively concluded that California's Medical Marijuana Program Act (“MMPA”) does in fact permit municipalities to enact and enforce zoning ordinances which exclude medical marijuana dispensaries (“MMD's”) from their jurisdictions.  The case itself arose from a nuisance abatement action initiated by Riverside in which the MMD argued that Riverside's zoning ban was preempted by the MMPA.  In rejecting this argument, the Court eventually held that California municipalities were entitled to “…allow, restrict, limit, or entirely exclude…” MMD's as a land-use condition.

Consequently, provided they are properly organized and operated, MMD's ultimately represent a permissible – yet optional – land-use under California law.

Just a few months later, the U.S. Justice Department issued a revised policy memorandum which specifically laid-out the criteria under which it would enforce applicable provisions of the Controlled Substances Act (“CSA”) which still prohibit the possession, distribution or sale of marijuana for any reason.  These enforcement criteria included such priorities as preventing distribution to minors; preventing revenues from going to criminal enterprises or cartels; preventing the diversion of marijuana from states where it was legal to those where it was not; as well as the prevention of drugged-driving or other adverse public health consequences.  Provided state law addresses these priorities and is enforced, the Department concluded that enforcement of state law by state law enforcement and local governing bodies should remain the primary means of addressing marijuana-related activities.

According to Pew Research statistics, 73% of Americans currently support laws which allow for the sale and use of medicinal marijuana and a recent poll indicates that 58% now support legalization for recreational purposes.  At present, there are currently 21 states plus the District of Columbia which allow for the possession and sale of medicinal marijuana and medical marijuana initiatives expected for this year's ballots in New York, Illinois and Florida are polling very favorably.  In Washington and Colorado, voters have elected to affirmatively legalize for recreational purposes and, more recently, Governor Rick Perry of Texas (yes, I said “Texas”) even suggested that his state also consider decriminalization.

Given public sentiment and the proactive approach taken by individual states with regard to their own narcotics laws, it is virtually inevitable that Congress will ultimately amend the CSA.

In the interim, however, California municipalities which choose to permit MMD's within their jurisdictions are forced to deal with some unique challenges.  The reason is because the MMPA ultimately gives regulatory authority over MMD's directly to the state's municipalities.  Consequently, unlike other states, MMD's in California are actually regulated at the local level via municipal ordinance.  Consequently, municipalities which wish to permit and regulate MMD's within their jurisdictions may generally do so through a conditional use permit.

Since the Legislature has essentially delegated (some might say “dumped”) the task of regulating MMD's to the state's municipalities, the MMD conditional use permit (“CUP”)  must ultimately be drafted to ensure compliance with the MMPA.  While local officials would not themselves violate the CSA for failing to do so, the CUP should also be consistent with the Department's enforcement criteria and help to advance federal enforcement priorities.

Specifically, to prevent access by minors, the CUP should strictly prohibit those under the age of 18 from entering the facility unless accompanied by a parent or legal guardian.  While the MMPA already prohibits MMD's from being located within 600 feet of a school, municipalities should also consider expanding this spatial requirement to include recreational youth facilities or other places where minors are generally known to congregate.  To ensure transparency and to prevent revenues from being diverted to criminal enterprises, the CUP should likewise entitle the municipality to access financial records, conduct audits and inspect the MMD's books and CUP applicants should be required to consent to criminal background checks.

To be effective, requirements imposed by the CUP should not only look good on paper but should also be consistently enforced.  As such, the CUP should permit entry by municipal personnel or their representatives at all times.  Should violations be found, CUP requirements should also provide for a clear and efficient review process to enable the imposition of appropriate penalties or rescission of the permit.

In cities, such as Sacramento, which have enacted strong and effective regulations via CUP's, MMD's have proven to be a positive and productive land-use which has generated municipal revenues and helped the City to weather the Great Recession.  So far, initial concerns regarding crime and other negative secondary effects have likewise proven unwarranted.  Consequently, the question of whether MMD's represent a legitimate land use or, alternatively, a public nuisance would appear to be based primarily upon the strength and effectiveness of the local municipality's regulatory system.

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