A state court of appeal struck down Long Beach's medical marijuana ordinance Tuesday - opening up the door for big changes to how the city tries to regulate the issue.
The California Second District Court of Appeal, Division Three, granted a petition for writ of mandate to the plaintiffs in the case Pack v. The Superior Court of Los Angeles County - ruling that federal law preempts the Long Beach medical marijuana ordinance 5.87.
"The court has found that the permitting process is just not acceptable," said Matthew Pappas, defense attorney for plaintiff Ryan Pack.
Pappas declared the ruling a victory and said that moving forward, "the issue is how much of it (5.87) will survive."
"The city's permitting scheme has been struck down," City Attorney Robert Shannon said. "We will not be enforcing the ordinance for the time being."
He said the tentative plan moving forward would be to present the case's ruling to the City Council in closed session next Tuesday and move forward from there.
At that point (or later), the council may take action to amend or eliminate parts of the law so that it can work within the framing of the court's ruling. It also could ask Shannon to appeal the ruling to the California Supreme Court - or even ask the Second District Court of Appeal for a rehearing.
Justice H. Walter Croskey, on behalf of Justice Joan Dempsey Klein and Justice Richard Dennis Aldrich, wrote the court's ruling.
"The question presented in this case is whether the city's ordinance, which permits and regulates medical marijuana collectives rather than merely decriminalizing specific acts, is preempted by federal law," he said in the ruling. "In this case of first impression, we conclude that, to the extent it permits, it is."
Later in the 36-page ruling, he cites specific areas of the ordinance where the court has a problem.
"As such, the permit provisions, including the substantial application fees and renewal fees, and the lottery system, are federally preempted," Croskey said.
Ryan Pack is a medical marijuana patient who was running the 562 Collective (3970 Atlantic Blvd.) before it was shut down by the city cease operations deadline of Aug. 29, 2010. He filed the instant action seeking declaratory relief that federal law preempts the ordinance on Aug. 20, 2010. On Sept. 14, 2010, he filed a request for a preliminary injunction, which was denied on Nov. 2, 2010. That led to the request for writ of mandate. Anthony Gayle, another patient and collective owner, also was attached as a plaintiff - he ran the 1 a.m. Collective (Fourth Street).
Pappas said the ruling clearly states that the fees the city sought from collectives ($10,000-plus each) and the lottery that eliminated collectives from contention, were both against the law. It is uncertain what other parts of the medical marijuana ordinance also would be struck down - still in question are the parts that regulate how close collectives can be to parks, residential areas and other collectives.
The appeals court did mention the possibility that The Superior Court of Los Angeles County may be briefed on the idea of severability - in essence, declaring that parts of the law are legal (the court cites early examples it saw like regulating the hours a collective could be open or preventing 18-year-olds from entering without a proper guardian and a medical card).
Pappas said he hopes the City Council will take this time to make a less constricting ordinance.
"I've never said there should be no regulations for medical marijuana collectives," he said. "I just think it should be reasonable."
According to Shannon, this ruling does not mean people can begin to open up new collectives tomorrow.
"Quite the contrary - the court indicates this action is unlawful and subject to criminal action," he said. "A way to read this is the city could be free to ban all collectives."
The federal Controlled Substance Act bans using, growing or selling marijuana. The Compassionate Use Act of California (and subsequently the Medical Marijuana Program Act) decriminalizes those measure for medical purposes - it is that word, decriminalize, that leaves a delineation and does not allow the California law to be preempted. By using the wording decriminalization, the state is not authorizing the use of marijuana - Long Beach's ordinance, because it has a permitting process, has essentially allowed for authorization, Croskey said.
City Prosecutor Doug Haubert has been helping enforce the 5.87 ordinance. He said he has about 70 cases pending involving the citation of that law. This ruling complicates those cases, he said, and it will be at least a few days before he decides how to proceed.
"We're going to be looking at the impact of this case on our criminal cases," he said. "We were not a party to the Pack ruling, but obviously the city's permitting provisions have been held invalid and it has yet to be seen what parts of the ordinance are remaining enforceable.
"This is somewhat unprecedented and we'll have to see what the options are. Ultimately, it will be up to the City Council."
Shannon said the ruling didn't shock him.
"It finally confronts the elephant in the room, which I've spoken to since the beginning," he said, noting this ruling could lead to the council accepting the federal law and just banning marijuana collectives altogether. "This is a journey and this isn't the last step on this journey. It's a significant opinion and we'll act on that appropriately."
The Superior Court of Los Angeles County now will look at preemption and decide which provisions of 5.87 are preempted, should the ordinance not be changed, within the coming weeks.