The Tragic Tale: TRAUDT v. CITY OF DANA POINT Summary and Issue

Can an individual bring suit against a local government in an attempt to keep a local Medical Marijuana dispensary open?

The unbelievably sad facts leading up to Melinda Traudt’s futile attempts to prevent a nearby dispensary from being shut down by the city are well detailed elsewhere.  The court in this case completely sidestepped the issue of  a patients right to access Medicinal Marijuana locally.  The entire decision by the appellate court was based on Standing, which is the legal concept where one must satisfy certain criteria to be able Patient rights and Medicinal Marijuana Lawto bring suit.  The court ruled that only owners of the collective have proper standing to bring a lawsuit seeking to, essentially, enforce the rights of Californians to obtain their prescribed Marijuana. Kind of a cop out by the court.

Hopefully, the reason the Supreme court has taken the Traudt case and underlying  issue under consideration is to impliment some standards of reason and consistency in keeping avenues of access open for Medicinal Marijuna Patients everywhere in California.

-Sean Ramsey, Attorney
February, 2012 

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Riverside v. Inland Empire Health: Summary of procedural history and comment

Summary of case history:

January 2009: City of Riverside sends Inland Empire Patients Health & Wellness center, a non-profit collaborative Medical Marijuana Dispensary (MMD) notice that City Zoning ordinance prohibits MMD’s

May 2010: City of riverside files suit against individuals associated with Inland Empire Center as well as the Center, the property owner and the property manager, stating that the Center is a public Medicinal Marijuana Lawnuisance and asking for a Preliminary Injunction that would prohibit the Center from operating.

November 2010: Trial court in Riverside county grants the motion for a preliminary injunction prohibing the Center from operating. The court held that Riverside could use zoning regulations to prohibit Medical Marijuana Dispensaries under City of Claremont v. Kruse.  Further, the court showed its unabashed hostility towards California Medical Marijuana Laws, stating that this was correct “especially given the conflict between state and federal law”.

November 2011: California court of appeals issued its ruling for City of Riverside. The court extensively examined the issue of preemption. The legal theory of Preemption in California is found in the California Constitution as follows:

Under article XI, section 7 (California Constitution), “[a] county or city may make and
enforce within its limits all local, police, sanitary, and other ordinances and regulations not in
conflict with general laws.” “`If otherwise valid local legislation conflicts with state law, it is
preempted by such law and is void.'”

In my humble opinion…

The court states that the Medical Marijuana Program Statutes (bill 420) only provides limited criminal immunity for the use, cultivation, and possession of medical marijuana and that because City of Riverside passed a civil ordinance, it doesn’t conflict with State medical Marijuana Law

In essence, the court holds that a local municipality can create a zoning  “ordinance”  banning medical marijuana dispensaries, essentially without giving a reason.  Then they can call dispensaries public nuisances on the SOLE fact that they are not in compliance with the local zoning law and shut them down.

Rather circular thinking, I think.

Nuisance

The theory of Nuisance has a specific legal definition:

“The two types of nuisance are private nuisance and public nuisance. A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one’s property in a manner that substantially interferes with the enjoyment or use of another individual’s property, without an actual Trespass or physical invasion to the land.  A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community.”
http://legal-dictionary.thefreedictionary.com/nuisance

If a dispensary is operating in a responsible manner, and in compliance with California Law, I find it difficult to label them a “nuisance”, either public or private.  Both theories are based on some kind of harm being done to another.

As it stands right now,  local government can use circular logic, rather than specific behavior that a dispensary or all dispensaries are causing harm to anybody, and declare Medical Marijuana Dispensaries nuisances.

Hopeful outcome

It is my hope that the outcome of Riverside v. Inland Empire Health, if nothing else, will prompt the California legislature to add a provision to existing law that prevents local governments from outright banning Medical Marijuana Dispensaries.

-Sean Ramsey, AttorneyLow Cost divorce and Prop 215 law
January 2012

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