MAPC Lawyers Publish “Challenge by Collective to LA County’s Prohibition against Medical Marijuana Dispensaries is Knocked Down by Appellate Court”
By Joshua R. Dale
In what has become a losing argument for collectives, the Second District Court of Appeal (Los Angeles) upheld the trial court’s grant of a preliminary injunction barring the operation of a dispensary in unincorporated portions of LA County. The key to the appellate court’s decision, as with previous appellate court cases that have sided with municipalities, was that the collective failed to make any attempt to apply for a business license or use permit with the county.
As with prior cases, the appellate court rejected outright the arguments that the County’s requirement of a license and permit violated the Compassionate Use Act (“CUA”) or the Medical Marijuana Program Act (“MMPA”). The court affirmed that the local government’s police power to regulate how businesses operate within its jurisdiction was not facially invalid in light of the CUA and MMPA, and as applied to the defendant collective, did not infringe on the collective’s rights. The court further rejected the argument that the $11.50 permit application fee was a prohibitive fee for the collective to pay, especially in light of the County charging the same fee to all businesses, not just collectives. The court also rejected the argument that the County had zoned dispensaries out of existence or had engaged in practices designed to deter collective from applying for permits and licenses.
The lesson for collectives and cooperatives continues to be made clear by the courts: While cities and counties cannot outright ban dispensaries, they can make land use decisions which restrict dispensaries. To challenge these restrictions, collectives and cooperatives must first jump through all procedural hoops put in place by the government agency, be denied, and then file suit. Here, defendant opened the dispensary without trying to comply, even futilely, with the licensing and permitting requirements of the County. Such a strategy is a dead-bang loser for dispensaries.
County of Los Angeles v. Martin Hill (2d Dist., February 10, 2011) Case No. B216432.