In a State of Denial About Pot

Originally released in the Los Angeles Business Journal

Simply stated, medical marijuana may be property lawfully possessed and obtained, and acquiring, possessing and protecting property is a basic constitutional right in California.

What’s in Store: Farmacy marijuana dispensary in Westwood. (RINGO H.W. CHIU/LABJ)

City of L.A.’s ordinance to liit the number of marijuana dispensaries conflicts with state Constitution.

The city of Los Angeles in January 2011 enacted an ordinance that limits the number of medical marijuana dispensaries and requires closure of dispensaries that do not conform with the L.A. law. The ordinance also sets “grandfathering” criteria.

By Ralph B. Saltsman, Stephen Warren Solomon and Stephen Allen Jamieson

At this point, the question is: Does this ordinance disallow access to Californias who qualify to acquire, possess and use medical marijuana? If so, does the ordinance violate the California Constitution and who has standing to mount a challenge?

No municipality can enact and enforce an outright ban of medical marijuana dispensaries. The state Constitution creates an unalienable right to acquire property that is lawfully possessed. Within limited circumstances, marijuana is such lawfully possessed property, and cities cannot prohibit their populace from lawfully acquiring medical marijuana.

In a historical context, the courts have been consistent that where municipal law infringes upon a protected liberty interest, that law must be narrowly drawn. Moreover, it must further a substantial goverment interest of fial as unconstitutional.

Under the California Constitution, Article 1, Section 1, the people have constitutionally acknowledged rights including “enjoying and defending life” as well as “acquiring, possessing, and protecing property.”

Both of these protected inalienable right delineated above are in play in demonstriating the unconstitutionality of all cooperative medial marijuana dispensaries from within its jurisdictional boundaries. The courts have said zoning laws are not infinite and unchallengeable. Prohibiting constitutionally protected rights cannot be justified on the pretext that the rights may be exercised in some other place.

In discussing medical marijuana, two seperately stated basic constitutional rights come into play: “enjoying and defending life” on the one hand, and “acquiring, possessing, and protecting property” on the other.

In 1996, Proposition 215, the Compassionate Use Act, specifies that “seriously ill Californians” have the right to have “and use marijuana for medical purposes” under defined circumstances. The Legislative Analyst’s Office stated that the proposition provided for medical purposes including relief of pain and easing symptoms of accompanying illness. It seems that the relationship between the purpose of Proposition 215 and the right to enjoy and defind life states and undeniable truth.

Since possession of marijuana is lawful in limited circumstances, after dismissal of an underlying criminal case, an Orange County trial court required the return of previously seized marijuana based upon the principle that lawfully possessed marijuana cannot be seized and kept by the local goverment. The Court of Appeal affirmed.

Michael Levinsohn, a criminal defense attorney esperienced in the defense of medical marijuana prosecutuions, confirms that where, as here, a constitutional right is impacted, the criminal charge must be dismissed and the patient’s property returned.

Simply stated, medical marijuana may be property lawfully possessed and optained, and acuiring, possessing and protecting property is a basic constitutional right in California. Statutory prohibitions and sanctions against possessions of parijuana do not apply to patients and caregivers.

Effective Jan. 1, state law allows local regulation of medical marijuana dispensaries. There is no statutory authorization of a complete ban.

While several courts have wrestled with the concept of local ordinances being preempted by state law, no court has discussed the issue of the constitutionality of a ban of medical marijuana as a liberty interest protected by the California Constitution.

It should be noted several other approaches challenging local municipal prohibitions against medical marijueana dispensaries have failed. However, in none of theses cases idid the court analyze the effect of Article 1, Section 1 on consumers’ rights to acquire and possess lawful medical marijuana.

For Example, a Riverside Appellate Court in 2011 upheld Riverside’s ban on marijuana dispensaries. The court rejected a preemption argument stating that state statutes at issue did not disallow a municipality’s ban. The court did not attempt to weigh the effect of Article 1, Section1 on Riverside’s complete ban. The court did not approach the controversy in the contect of protecting a liberty interest. The California Supreme Court has just granted hearings to reivew two key cases where marijuana dispensaries were restricted by situes.

The conflict between medical marinuana dispensaries and municipal control is far from concluded. Many legal theories are yet to be tested, but based on the Supreme Court’s affording protection against total bans of matters involving a liberty interest, any ordinance, including L.A.’s, which explicitly or by application acts as a complete prohibition of medical marijuana clinics must fall.

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Ralph B. Saltsman, Stephen Warren Solomon and Stephen Allan Jamieson are partners in the law firm of Solomon Saltsman & Jamieson in Los Angeles. Along with their partners who contributed to this article, Bruce Evans and Ryan Kroll, the authors practice in the area of land use, zoning, administrative, personal injury and constitutional law.