City May Tighten Municipal Code Banning Medical Marijuana Dispensaries

The Planning Commission could vote on Thursday to recommend adding new language to the city's municipal code, tightening the local ban on medical marijuana dispensaries. If the commission favors the revised wording, it could recommend the City Council to approve it at a later date.

The changes come at the behest of the City Attorney. According to the Planning Commission's staff report, "Recent court rulings in regard to the regulation of medical marijuana dispensaries have prompted the City Attorney to recommend that the City consider strengthening the language."

The court rulings referred to include that of Qualified Patients Association v. City of Anaheim. After an ordinance forbidding medical marijuana dispensaries in Anaheim, a dispensary already in operation took the city to court. It  scored a victory as the court questioned how "a city may criminalize as a misdemeanor a particular use of property the state expressly has exempted from 'criminal liability.'"

The proposed draft ordinance in Calabasas could help the city avoid similar legal issues. It uses language that the staff report refers to as "a more robust reference to medical marijuana dispensaries by also referencing 'any other facility which involves the distribution of drugs or other substances which it is illegal to distribute or possess under state or federal law.'"

It also includes a second paragraph that clarifies that "any violation of the City's Code (e.g., the medical marijuana dispensary use prohibition) would not be made a criminal act by the City's Code."

Rebecca Lonergan, professor of law at USC, referred to this as the "savings clause." Its stipulation that it does not contravene the state's Compassionate Use Act is to avoid any possible accusations that it breaks the U.S. Constitution's Supremacy Clause. (The Agoura Hills muncipal code banning medical marijuana dispensaries uses similar language.)

Lonergan said that while she can only guess at the motivation behind the new language, it seemed that its aim is to make the code more easily defendable against possible litigation.

"A lot of the statutes that restrict medical marijuana dispensaries have been overturned by the courts if they've not been drafted well. They're trying to draft in a way that will withstand challenges in court," said Lonergan.

She also offered her opinion on several aspects of the proposed new wording. The inclusion of other illegal drugs, she suggested, was possibly added to give marijuana "equal protection" under the law, rather than single it out in a way that could be argued to be unfair or discriminatory.

By prohibiting the dispensaries as a land use, the proposed new language covers some holes in the current code, which simply states that they are not allowed in any "zoning district in the city." As the code currently stands, said Lonergan, it could be argued that marijuana dispensaries are permitted in unzoned land, or suburban land outside of city limits.

Allen F. St. Pierre, the executive director of NORML, The National Organization for the Reform of Marijuana Laws, said that the proposed change was an effort by lawmakers to "further codify and cover their butts."

Pierre said that Californian cities attempting to prohibit dispensaries have taken their lead from "the Haag memo," a letter written by Melinda Haag from the U.S. Department of Justice to an Oakland lawyer seeking guidance on the issue. The letter states that, federally speaking, marijuana is a controlled substance. Pierre said that this letter was meant as a reminder to state officials that "you can only go so far across the reefer rubicon."

With reference to the new proposed Calabasas code, Pierre said that the inclusion of other illegal drugs looked like an attempt to refine the language to prohibit other marijuana-related businesses such as the "ripper, cutter, dryer industries" that prepare marijuana for use.

The legal use of marijuana for medicinal purposes in California was brought in by the Compassionate Use Act of 1996. It provides "seriously ill Californians"  with "the right to obtain and use marijuana for medical purposes . . . recommended by a physician who has determined that the person's health would benefit." It is still considered a controlled substance under federal law.