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Injunction issued against L.A.'s medical marijuana law

December 10, 2010 |  3:26 pm


A judge has ordered Los Angeles not to enforce key sections of its controversial medical marijuana ordinance, issuing a preliminary injunction that once again leaves the city with limited ability to control dispensaries and raises the possibility that new ones could open.

The decision comes almost six months after the City Council adopted the law, which opponents said was riddled with flaws. Los Angeles County Superior Court Judge Anthony J. Mohr, in a decision released Friday, agreed with most of the criticisms raised by the dispensaries.

In his ruling, Mohr acknowledged "there is a good chance that a large number of collectives could open once this injunction takes effect."

Mohr enjoined a crucial provision of the ordinance that outlaws all dispensaries except those that registered with the city in 2007 after the City Council adopted a moratorium on new stores. He concluded it is invalid because the moratorium was improperly extended and therefore had expired before the registration deadline for dispensaries.

"The justification for using that date as a bright line was compromised, if not confounded, by the fact that it was unnecessary to register," he wrote. "The requirement had ceased almost two months earlier, and no one could have anticipated that compliance with a dead statute would be necessary in order to continue as a collective three years later."

Mohr said the Nov. 13, 2007, deadline was therefore "arbitrary and capricious such that it violates the equal protection clauses of the United State and the State of California."

The judge, however, offered the City Council a simple remedy. He said it could grandfather all dispensaries that existed before a specific date. He noted that the documents dispensaries filed with the city clerk in 2007 could then be used as proof they were operating at that date. 

"Amending the ordinance accordingly would most likely be the easiest way to avoid another equal protection challenge," he said. 

David Welch, an attorney who represents more than 60 dispensaries that have sued, said the judge’s decision "means they can continue to operate until the ordinance is fully litigated. It means they can’t use strong-arm tactics such as arresting my clients and raids of the dispensaries to prevent my clients from going through the legal process."

Welch said, however, that he expects the city to file an appeal. The city could choose to proceed to a trial on the case, but the City Council also could decide to rewrite the ordinance.

Jane Usher, a special assistant city attorney, was reviewing the decision and said she could not immediately comment on it.

Mohr’s decision came about six months after multiplying lawsuits filed by dispensaries against the city were routed to his courtroom. More than 100 dispensaries have filed at least 42 lawsuits that challenge the ordinance, which ordered most of them to shut down. Many initially complied, but many have since reopened despite police enforcement raids. 

In his 40-page ruling, Mohr also decided that the ordinance violated the due-process rights of the dispensaries that sued because it required them to shut down without providing a hearing. "To this extent, the ordinance is unconstitutional," he concluded.

He also ruled that the ordinance violated the right to privacy by requiring collectives to maintain records on their members and provide them to police without a warrant.

The judge also concluded that a provision making violations of the law subject to criminal penalties under the municipal code contradicts state medical marijuana law. "The criminal sanctions language from the ordinance must be stricken because it commands what the state law prohibits: criminal prosecution for the collective cultivation of medical marijuana," Mohr wrote.  

He also said a provision that would sunset the entire ordinance after two years is preempted by state law because it would create "a blanket ban" on all collectives and "goes too far."

Mohr, however, ruled that the state’s 1996 medical marijuana initiative and a 2003 state law do not preclude cities such as Los Angeles from adopting regulations to control medical marijuana collectives or dispensaries. "Íf anything, local entities are encouraged to make attempts to regulate, and presumably define, medical marijuana cooperatives," he concluded.


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Photo: Medical marijuana buds are displayed for sale at a dispensary.

Credit: Los Angeles Times