The California Supreme Court addressed the issue of whether local governments could ban stores within their borders where marijuana was being legally sold to qualified patients under the State’s Compassionate Use Act (CUA) of 1993 or the State’s more recent Medical Marijuana Program (MMP) adopted in 2003. In the case before the Court, the City of Riverside sought to close down a marijuana dispensary being operated within the city’s borders on the grounds that the dispensary constituted a public nuisance. The owner of the marijuana dispensary argued that the city of Riverside was preempted from banning his shop under state law pursuant to the CUA and MMP.

The California Supreme Court first noted that the “California Constitution recognizes the authority of cities and counties to make and enforce, within their borders, ―all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. (Cal. Const., art. XI, § 7.) This inherent local police power includes broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction‘s borders, and preemption by state law is not lightly presumed.”  The Court then went on to state that when a local government seeks to regulate something over which it traditionally has control, such as the location of certain land use, California courts will presume, absent a clear intent from the legislature, that such a regulation is not preempted by state statute. Local laws can however be prohibited under principles of state preemption if the local laws come into conflict with a state statute already in place. A conflict triggering state preemption of local laws exists where “local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. “ The California Supreme Court deduced that the common thread running through most cases concerning state preemption is that if there is a significant local interest to be served which may differ from one locality to another, then the presumption favors the validity of the local ordinance against an attack of state preemption.

The California Supreme Court looked back at the history of California’s medical marijuana laws codified in the CUA and MMP and determined that the laws were careful, narrowly drawn, and relatively limited in scope.  The Court felt that California’s medical marijuana laws were modest approaches attempting to strike a delicate balance in an area that remains controversial and involves tension between state and federal law. The Court further noted that the CUA and MMP merely grant protection to qualified patients against certain civil penalties and criminal prosecution for charges such as Possession of Marijuana under California Health & Safety Code section 11357 or Cultivation of Marijuana under California Health & Safety Code section 11358, but the CUA and MMP do not create a comprehensive state system of legalized marijuana. The Court also pointed out that the CUA and MMP do not grant qualified patients a right to easy access to medical marijuana and the state statutes do not override the zoning, licensing, and police powers of local city and county governments, nor does the CUA or MMP mandate local accommodation of medical marijuana cooperatives, dispensaries, or collectives. Thus, the California Supreme Court concluded that the CUA and the MMP do not either expressly or impliedly preempt city and county governments from using their police powers to ban medical marijuana dispensaries within their borders and to enforce such policies through nuisance actions. The Court therefore determined that the City of Riverside was allowed to shut down medical marijuana dispensaries.

The likely impact of the California Supreme Court’s ruling will be that many other local jurisdictions will choose to exercise their newly granted power to ban medical marijuana dispensaries and collectives within their borders. As a consequence, a great number of the seriously ill Californians for which the law was created will have to gain legal access to medical marijuana for its therapeutic and pain relieving attributes outsides the boundaries of their local government. Many of these seriously ill Californians are bedridden and already have great difficultly gaining access to the medical marijuana even within their own city or county. The California Supreme Court’s ruling and the increase in medical marijuana dispensary bans by local governments that will surely follow will only serve to increase the already heavy burden and expense many seriously ill Californians face in obtaining legal access to medical marijuana because many patients may have to pay other licensed individuals to travel great distances to gain legal access to medical marijuana because they are not physically able leave their homes.