1. The City’s Ordinance


In 2010, the City adopted an ordinance (Long Beach Ord. No. 10-0007) intended to comprehensively regulate medical marijuana collectives within the City. The ordinance defines a collective as an association of four or more qualified patients and their primary caregivers who associate at a location within the City to collectively or cooperatively cultivate medical marijuana. (Long Beach Mun. Code, ch. 5.87, § 5.87.015, subd. J.)

The City’s ordinance not only restricts the location of medical marijuana collectives (Long Beach Mun. Code, ch. 5.87, § 5.87.040, subds. A, B & C), but also regulates their operation by means of a permit system (Long Beach Mun. Code, ch. 5.87, § 5.87.020). The City requires all collectives which seek to operate in the City, including those that were in operation at the time the ordinance was adopted,[15] to submit applications and a nonrefundable application fee. (Long Beach Mun. Code, ch. 5.87, § 5.87.030.) The City has set this fee at $14,742. The qualified applicants then participate in a lottery for a limited number of permits.[16] Only those medical marijuana collectives 1083*1083 which have been issued medical marijuana collective permits may operate in the City. (Long Beach Mun. Code, ch. 5.87, § 5.87.020.)

In order to obtain a permit, a collective must demonstrate its compliance, and assure its continued compliance, with certain requirements. (Long Beach Mun. Code, ch. 5.87, § 5.87.040.) These include the installation of sound insulation (id., subd. G), odor absorbing ventilation (id., subd. H), closed-circuit television monitoring[17] (§ 5.87.040, subd. I.), and centrally monitored fire and burglar alarm systems (id., subd. J). Collectives must also agree that representative samples of the medical marijuana they distribute will have been analyzed by an independent laboratory to ensure that it is free of pesticides and contaminants. (Id., subd. T.)

Once a permit has been issued, an “Annual Regulatory Permit Fee” is also imposed, based on the size of the collective. That fee is $10,000 for a collective with between four and 500 members, and increases with the size of the collective.

The permitted collective system is the exclusive means of collective cultivation of medical marijuana in Long Beach.[18] The ordinance provides that it is “unlawful for any person to cause, permit or engage in the cultivation, possession, distribution, exchange or giving away of marijuana for medical or nonmedical purposes except as provided in this chapter, and 1084*1084pursuant to any and all other applicable local and state law.”[19] (Long Beach Mun. Code, ch. 5.87, § 5.87.090, subd. A.) The ordinance further provides that no person shall be a member of more than one collective “fully permitted in accordance with this chapter.”[20] (Id., subd. N.) Violations of the ordinance are misdemeanors, as well as enjoinable nuisances per se. (Long Beach Mun. Code, ch. 5.87, § 5.87.100.)

The City set a timeline for its initial permit lottery. Applications were to be accepted between June 1 and June 18, 2010; the City was to review the applications for compliance from June 21 through September 16, 2010; the lottery would be held on September 20, 2010; and site inspections, public notice and a hearing process would occur between September 21, 2010, and December 15, 2010. However, the City indicated that any collective that did not comply with the ordinance must cease operations by August 29, 2010.


2. Plaintiffs’ Complaint and Request for Preliminary Injunction


Plaintiffs Ryan Pack and Anthony Gayle were members of medical marijuana collectives that were directed to cease operations by August 29, 2010, for noncompliance with the ordinance. On August 30, 2010, plaintiffs filed the instant action seeking declaratory relief that the ordinance is invalid as it is preempted by federal law. On September 14, 2010, plaintiffs filed a request for a preliminary injunction. By this time, the City had shut down the collectives of which plaintiffs were members. However, as the lottery had not yet been held, no collectives had been issued permits in accordance with the ordinance. The plaintiffs thus argued that they would be irreparably harmed by the continued enforcement of the ordinance, as there was no collective they could legally join in order to obtain their necessary medical marijuana. As to the probability of success, plaintiffs argued that the City’s ordinance went beyond decriminalization and instead permitted conduct prohibited by the federal CSA, and thus was preempted.


1085*1085 3. The City’s Opposition to the Preliminary Injunction Request


On September 24, 2010, the City opposed the request for preliminary injunction, arguing that the ordinance was not preempted because it did not affect those responsible for enforcing the federal CSA. The City also raised an unclean hands argument, briefly suggesting that plaintiffs could not complain of any harm because their collectives “opened up for business” in an “unpermitted illegal manner.”


4. The Trial Court’s Denial of the Request for Preliminary Injunction


After a hearing, the trial court denied the request for a preliminary injunction. Its order issued on November 2, 2010. The court ultimately declined to address the federal preemption argument, on the basis of unclean hands. The court rejected the unclean hands argument raised by the City; however, it concluded that plaintiffs could not be heard to argue that the City ordinance was preempted due to a conflict with federal law (the CSA), when plaintiffs sought this ruling so that they could continue to violate the very same federal law. The court stated, “It is hardly equitable for [p]laintiffs to ask the court to enforce a federal law that they themselves are indisputably violating.”[21]


5. The Plaintiffs’ Petition for Writ of Mandate


On November 15, 2010, plaintiffs filed the instant petition for writ of mandate, challenging the trial court’s denial of a preliminary injunction. We issued an order to show cause, seeking briefing on the federal preemption issue. We invited amicus curiae briefing from various entities on both sides of the issue, including other cities considering or enacting medical marijuana collective ordinances, the United States Attorneys for California districts, the ACLU, and organizations advocating the legalization of marijuana. We received amicus curiae briefing from (1) the City of Los Angeles; (2) the California State Association of Counties and League of California Cities; and (3) the ACLU, ACLU of Northern California, ACLU of Southern California, ACLU of San Diego and Imperial Counties, Drug Policy Alliance, and 1086*1086 Americans for Safe Access. Although the United States Attorneys declined to file amicus curiae briefs, we have taken judicial notice of letters and memoranda which illuminate the federal government’s position regarding the enforcement of the CSA with respect to medical marijuana collectives.


6. The Progress of the Lottery and Permitting System


As briefing proceeded in this case, the City’s permit lottery was conducted. According to a representation in the City’s respondent’s brief, the City received 43 applications, and the lottery resulted in 32 applications moving forward in the permit process. By the time briefing was closed, plaintiffs acknowledged that the permit process had resulted in a permit being issued for at least one collective, Herbal Solutions.[22]

Social tagging: > > > > > > >

Comments are closed.