Safe Life Caregivers v. City of L. A.

• Decision Date: 13 January 2016
• Docket Number: B257809
• Parties: SAFE LIFE CAREGIVERS et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

243 Cal.App.4th 1029

197 Cal.Rptr.3d 524

SAFE LIFE CAREGIVERS et al., Plaintiffs and Appellants,

v.CITY OF LOS ANGELES, Defendant and Respondent.

B257809

Court of Appeal, Second District, Division 8, California.

Filed January 13, 2016

Certified for Partial Publication.^*

Law Offices of Stanley H. Kimmel and Stanley H. Kimmel for Plaintiffs and Appellants.

Michael N. Feuer, City Attorney, Terry P. Kaufmann–Macias, Assistant City Attorney, and Steven M. Blau, Deputy City Attorney, for Defendant and Respondent.

RUBIN, J.

In this appeal we reiterate what other appellate courts, including our Supreme Court, have already held—there is no constitutional or statutory right to possess, cultivate, distribute, or transport marijuana for medical purposes. ( City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, 739, 156 Cal.Rptr.3d 409, 300 P.3d 494 (Riverside ).) We apply that rule of law to appellants' challenge to Proposition D (Prop D), the current medical marijuana ordinance of the City of Los Angeles (the City), enacted by voters in 2013. We conclude for that and other reasons the trial court correctly dismissed appellants' complaint.

By way of further introduction, this is the first of two related appeals challenging the medical marijuana ordinances in the City. In this appeal, nearly 20 medical marijuana collectives and a handful of medical marijuana patients, who are officers of the collectives, bring numerous challenges to Prop D.¹ None of the appellants' arguments relies on any facts specific to any individual appellant; we therefore consider their arguments collectively. The sole defendant is the City. The City prevailed on a demurrer to appellants' first amended complaint. Appellants seek leave to amend their complaint to raise a previously unpled challenge to Prop D. We conclude that Prop D was a properly enacted ordinance, reject all of appellants' other arguments, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants' principal charge on appeal is a multi-faceted attack on the process by which Prop D was enacted. They also challenge the substantive provisions of the ordinance, particularly as those terms relate to registration under the City's prior medical marijuana ordinances. The factual history of this case is, as it turns out, the legal history of medical marijuana in Los Angeles.

A. State Statutes—CUA and MMPA

The history of legalizing medical marijuana in California begins with the Compassionate Use Act of 1996(CUA) enacted by statewide initiative. The CUA is codified at Health and Safety Code section 11362.5. It provides that two specific criminal penalties (relating to the possession and cultivation of marijuana) "shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." (Health & Saf.Code, § 11362.5, subd. (d).) While subdivision (a) of the statute sets forth broad purposes for the statute—"[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician ..."—the substantive provisions of the law are actually quite narrow, providing not an affirmative right, but merely a limited criminal immunity. (Riverside, supra, 56 Cal.4th at p. 739, 156 Cal.Rptr.3d 409, 300 P.3d 494 ; Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214 Cal.App.4th 1534, 1544, 154 Cal.Rptr.3d 850 (Conejo ).)

In 2003, the Legislature followed the CUA with the Medical Marijuana Program Act (MMPA). (Health & Saf.Code, § 11362.7 et seq. ) The MMPA expands the criminal immunities of the CUA; qualified patients are now immune from liability for violating six different sections of the Health and Safety Code. (Health & Saf.Code, § 11362.765.) The MMPA also discusses, for the first time, the collective cultivation of marijuana. It provides that qualified patients and their primary caregivers "who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions" under the same six specified sections of the Health and Safety Code. (Health & Saf.Code, § 11362.775.)

Together, the CUA and MMPA constitute "limited exceptions to the sanctions of this state's criminal and nuisance laws in cases where marijuana is possessed, cultivated, distributed, and transported for medical purposes." (Riverside, supra, 56 Cal.4th at p. 739, 156 Cal.Rptr.3d 409, 300 P.3d 494.) They have no effect on the federal ban on marijuana use. (Id. at p. 740, 156 Cal.Rptr.3d 409, 300 P.3d 494.) Nor do they create a state statutory right to use, cultivate, or collectively cultivate medical marijuana. (Id. at p. 762, 156 Cal.Rptr.3d 409, 300 P.3d 494 ; 420 Caregivers, LLC v. City of Los Angeles (2012) 219 Cal.App.4th 1316, 1342, 163 Cal.Rptr.3d 17 (420 Caregivers ); County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 869, 121 Cal.Rptr.3d 722 (Hill ); People v. Urziceanu (2005) 132 Cal.App.4th 747, 773, 33 Cal.Rptr.3d 859 (Urziceanu ).)

B. The City's First Attempt at Legislation—Interim Control Ordinance

In 2007, the City made its first attempt to regulate medical marijuana dispensaries, "[i]n response to citizen complaints and law enforcement concerns about the proliferation of storefront medical marijuana dispensaries within City limits." (420 Caregivers, supra, 219 Cal.App.4th at p. 1326, 163 Cal.Rptr.3d 17.) City Ordinance No. 179027 provided as a temporary measure that no "Medical Marijuana Dispensaries" could be established or operated within the City.

"Medical Marijuana Dispensary" was broadly defined to mean "any use, facility or location, including but not limited to a retail store, office building or structure that distributes, transmits, gives, dispenses, facilitates or otherwise provides marijuana in any manner, in accordance with State law, in particular [the CUA and MMPA] inclusive." The ordinance came with a major exception: its prohibition did not apply to any dispensary established before the ordinance's effective date (September 14, 2007) and operating in accordance with state law, if the owner or operator of the dispensary were to register with the City Clerk by filing certain identified documents within 60 days (by November 13, 2007). (420 Caregivers, at pp. 1326–1327, 163 Cal.Rptr.3d 17.) This Interim Control Ordinance was intended to allow the City the time it needed to develop a comprehensive strategy for regulating medical marijuana dispensaries.²

C. The City's Second Attempt—Grandfather Prior Registrant Ordinance

In 2010, the City passed its second attempt to regulate dispensaries. City Ordinance No. 181069 was the City's try at a more permanent ordinance. It imposed regulations on medical marijuana collectives.³ It defined a "collective" as an "association, composed solely of four or more qualified patients ... and designated primary caregivers ... who associate at a particular location to collectively or cooperatively cultivate marijuana for medical purposes, in strict accordance with [the CUA and MMPA]." (L.A.Mun.Code, fmr. § 45.19.6.1.) The ordinance required all collectives to register, and facially capped the maximum number of collectives in the City at 70, to be proportionally distributed by population. (L.A.Mun.Code, fmr. § 45.19.6.2.) However, the ordinance provided that the number of collectives could in fact exceed 70, as it included a grandfather clause that allowed previously existing collectives to remain if they were, among other things, properly registered under the Interim Control Ordinance.⁴ It appeared that there were substantially more than 70 collectives in operation which could qualify under the grandfather clause; as such, if it had become fully operational, the Grandfather Prior Registrant Ordinance would likely have had the effect of prohibiting all collectives which had not previously registered under the Interim Control Ordinance.

D. The City's Third Attempt—The Grandfather/Lottery Ordinance

Many collectives brought suit against the City, challenging the terms of the Grandfather Prior Registrant Ordinance.⁵ The collectives sought a preliminary injunction, and the trial court concluded, among other things, that the Grandfather Prior Registrant Ordinance denied equal protection to collectives which had not registered under the Interim Control Ordinance. (420 Caregivers, supra, 219 Cal.App.4th at p. 1330, 163 Cal.Rptr.3d 17.)

The City then enacted a third ordinance, as an urgency measure, to modify the Grandfather Prior Registrant Ordinance to respond to the trial court's ruling while the City's appeal of the preliminary injunction was pending. City Ordinance No. 181530 changed the grandfathering provision of the Grandfather Prior Registrant ordinance to allow all collectives which had been in operation on or before September 14, 2007 to register for the right to participate in a lottery, from which 100 collectives would be chosen for inspection and, if all other requirements were satisfied, registration. Pursuant to the terms of the ordinance, all collectives that met the prerequisites for the lottery were required to register for it shortly after the ordinance became effective.⁶ We call this the Grandfather/Lottery Ordinance.

E. Appeal of the Injunction

The City appealed the preliminary injunction against the Grandfather Prior Registrant Ordinance, and, on July 3, 2012, we issued our opinion in 420 Caregivers reversing the preliminary injunction and upholding the original grandfathering provision of the Grandfather Prior Registrant Ordinance. (420 Caregivers, supra, 219 Cal.App.4th at pp. 1338–1339, 163 Cal.Rptr.3d 17.) Specifically, we recognized that straightforward grandfathering provisions generally survive rational relation equal...