Medical Marijuana Collectives Litigation Win Motion for Preliminary Injunction against the Los Angeles City Attorney’s Office

Plaintiffs in what has been titled the “Medical Marijuana Collectives Litigation” won a victory when a Los Angeles County Superior Court judge granted their motion for a preliminary injunction to stop the Los Angeles City Attorney’s office from shutting down the operation of certain collectives pending the outcome of their lawsuit.

 In a December 11, 2010 ruling, the Honorable Anthony J. Mohr found that the ordinance adopted by the LA City Council in 2010 outlawing collectives opened after 2007 was likely to be struck down for several reasons.  First, the court found that the ordinance’s criminal penalties were preempted by the Medical Marijuana Protection Act (“MMPA”), the law passed by the Legislature that interprets the voters’ intent in passing the Compassionate Use Act, Proposition 215 (“CUA”).  Citing to a recent Fourth District Court of Appeal decision in Qualified Patients Assoc. v. City of Anaheim (2010) 187 Cal.App.4th 734, the court affirmed that the MMPA does not allow for criminal sanctions for cultivators of medical marijuana.

The court further found that the sunset provisions of the LA ordinance are potentially an unlawful ban on collectives in violation of the MMPA.  The sunset provisions of the ordinance purport to outlaw all collectives, even the 70 registered collectives exempted from the ban under the ordinance, within two years unless the City Council extends the ordinance.  The court found that this language banning all collectives barring a renewal or amendment of the law was too broad.

The court also found a likelihood that plaintiffs would prevail on their equal protection claims against the city.  The court found that there was a likelihood that the city could not show a rational public safety basis for favoring collectives that had registered with the city prior to a 2007 deadline.  Specifically, the court noted that the deadline to register collectives fell after the requirement to register with the city had expired.  Thus, the court reasoned, law abiding collectives may have not registered with the city simply because the law no longer required them to do so.  The court found it was unlikely the court could show how public safety would be served by excluding collectives from operating that had violated no laws.  The court suggested, however, that if the city were to adopt a “grandfather” date, such that collectives which opened prior to that date were allowed to continue operating regardless of whether they had registered with the city, such a distinction would likely survive future equal protection challenges.

Unexpectedly, the court found it likely that some of the plaintiffs would succeed on their due process challenges to the ordinance.  In finding that the city denied shut-down collectives a right to a hearing on the city’s decision to shut them down, the court found a limited right existed to operate collectives under the MMPA and CUA.  Because the ordinance removed that right without any due process – such as a hearing – minimal due process had been denied.            

The court also found that the city requirement of requiring law enforcement access to patients’ records at a collective, without first requiring a warrant, was a “serious” invasion of patients’ right to medical privacy.

Most interesting in the court’s ruling was its overall tenor regarding the right to operate collectives. Recent appellate decisions have found that local governments may use their permitting requirements to effectively ban dispensaries from their jurisdiction as a land use issue.  Judge Mohr’s opinion suggests that this approach may violate the MMPA and CUA, “the City must not lose sight of the fact that the People of the State of California have conferred on qualified patients the right to obtain marijuana for medical purposes.  No local subdivision should be allowed to curtail that right wholesale or regulate it out of business.”  (Emphasis added.)

Judge Mohr’s ruling should be read in the proper context; while he has expressed a belief in the likelihood of plaintiffs prevailing on their challenge to the ordinance, he is not bound to maintain that belief once trial occurs.  Time, evidence and political realities still can change the circumstances of the case to support a change in the reasoning that justified a grant of an injunction in plaintiffs’ favor.  While supporters of plaintiffs can be heartened by the ruling, it is by no means the last word on the issue.