MATTHEW S. PAPPAS (SBN: 171860)
Long Beach, CA 90802
Attorney for Defendants/Cross-complainant
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL DIVISION
|COUNTY OF LOS ANGELES, Plaintiff,
ACME SILVER PLACE, a CA corp, Defendant
ACME SILVER PLACE, Cross-complainant,
COUNTY OF LOS ANGELES, Cross-defendants
Dept. 16 (Hill St.) Hon. Rita Miller
Trial Date: Not set
The Defendants in this action hereby oppose the motion for preliminary injunction filed by Plaintiff/Cross-defendant County of Los Angeles. This opposition is based on the included Memorandum of Points and Authorities, declarations, request for judicial notice and applicable statutory and decisional law. DATED: January 16, 2015
Attorney for Cross-complainant
Use of marijuana as a medicine.
Marijuana was first used as a medicine in China nearly 5000 years ago. Recommended for malaria, constipation, rheumatic pains, and as a surgical analgesic, subsequent records show it was later used throughout Asia, the Middle East, Southern Africa and South America. In the 19th century, marijuana became a mainstream medicine in England. An Irish scientist and physician, William O’Shaughnessy, observed its use as an analgesic, anticonvulsant, antispasmodic and antiemetic. Following toxicity experiments on dogs and goats, O’Shaughnessy began providing marijuana to patients and was impressed with its anticonvulsant and analgesic properties. After O’Shaughnessy’s observations were published in 1842, medicinal use of marijuana expanded rapidly. Thomas Jefferson stated that “Hemp is of first necessity to the wealth & protection of the country.” Eight of the twenty-four pipe samples found in Shakespeare’s garden that were tested were found to contain cannabis remains, suggesting that the historical playwright may well have benefitted from marijuana as he wrote some of his famous plays.
Objection by the American Medical Association in 1937 to the first Federal law passed to prohibit cannabis
In the 1930s, Harry J. Anslinger, the head of the Federal Bureau of Narcotics (“FBN”), sought to prohibit cannabis use. Between 1935 and 1937, Anslinger advocated for passage of the Uniform State Narcotic Act and Marihuana Tax Act. Dr. William C. Woodward, testifying on behalf of the American Medical Association (“AMA”), told Congress that, “The American Medical Association knows of no evidence that marijuana is a dangerous drug” and warned that a prohibition “loses sight of the fact that future investigation may show that there are substantial medical uses for Cannabis.” Although the marijuana tax proposal was opposed by the AMA, it was eventually enacted by Congress on August 2, 1937.
Congress ignores the 1972 National Commission on Marihuana and Drug Abuse Commission report
In 1970, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act (“CDAPCA”) (P.L. 91-513, 91st Cong., 84 Stat. 1236, Oct. 27, 1970) including Title 2 of that law, the federal Controlled Substances Act (“CSA”) (21 U.S.C. § 801, et seq.). Part “F” of the CDAPCA established the National Commission on Marihuana and Drug Abuse chaired by Raymond P. Shafer, the former governor of Pennsylvania. In its first report to Congress recommending full decriminalization of simple marijuana possession, the Commission reported, “The actual and potential harm of use of [marijuana] is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only with the greatest reluctance.” Congress largely ignored the Commission’s report after Gov. Shafer was told by President Nixon, “You’re enough of a pro to know that for you to come out with something that would run counter to what the Congress feels and what the country feels, and what we’re planning to do, would make your commission just look bad as hell.” It was a presumptive agenda at best to predispose his dialog as to the intimate knowledge of what congress “feels” and the country “feels” and became a way of influence for the ulterior hidden lack of due process that spawned a trend. Years later, in 1988, the federal Drug Enforcement Administration’s (“DEA”) Chief Administrative Law Judge, Francis Young, ruled that, “Marijuana, in its natural form, is one of the safest therapeutically active substances known… It would be unreasonable, arbitrary and capricious for the DEA to continue to stand between those sufferers and the benefits of this substance…”
The Marijuana Tax Act and CSA effectively proscribed medical use of marijuana in the United States until California voters approved Prop. 215, the state’s Compassionate Use Act (“CUA”), in 1996. Since California implemented its CUA, at least twenty-three (23) states and the District of Columbia have enacted medical marijuana laws with legislation pending in additional states.
The Compassionate Use Act and Medical Marijuana Program Act
The 1996 voter-passed Compassionate Use Act is a plain-language law that decriminalizes medical marijuana use, possession, and cultivation for patients in medical need. At the time it was enacted, the law did not include specific provisions for distribution to patients but rather included the general “right to obtain” for all seriously ill Californians with doctor recommendations. It did, however, ask that a distribution system be setup and so, in 2003, the Legislature, acting in-part to address the need for distribution expressed by the voters, established the Medical Marijuana Program Act (“MMPA”). The MMPA decriminalized storage, land use, distribution, and transportation related to medical marijuana through a collective and cooperative distribution system. Understanding the issue with the general prohibition against marijuana expressed in federal law, the Legislature asked that the state’s Attorney General promulgate guidelines related to the collective and cooperative distribution, transportation, and provision system. The MMPA also included sections related to an identification card program, law enforcement, and threshold quantity limitations.
Modern use of marijuana for medicinal purposes
In March, 2011, the National Cancer Institute’s (“NCI”) PDQ® (Physician Data Query) information system for physicians and health professionals reported that potential benefits of medical marijuana for people with cancer include, “antiemetic effects, appetite stimulation, pain relief, and improved sleep. In the practice of integrative oncology, the health care provider may recommend medicinal Marijuana not only for symptom management but also for its possible direct antitumor effect,”
In the late 1990s, the director of the White House Office of National Drug Control Policy (“ONDCP”) asked the National Institutes of Science to review the evidence for the potential benefits and risks associated with the use of medical marijuana. The Institute of Medicine (“IOM”), a non-governmental, apolitical, non-profit part of the National Institutes, was charged with carrying out the research and study. Completed in March, 1999, the institute’s medical marijuana project was coordinated by Janet E. Joy who, along with doctors and scientists who participated in the report, co-authored a book detailing the marijuana study: “People who use marijuana solely as a medication do so in order to relieve specific symptoms of AIDS, cancer, multiple sclerosis, and other debilitating conditions. Many do so under the advice or consent of doctors after conventional treatments have failed to help them … Surveys of marijuana buyers’ clubs indicate that most of their members do, in fact, have serious medical conditions.” In the approximately 5000 years it has been used medicinally, there is not a single case of death caused by marijuana overdose.
Cannabis reduces the size of cancerous tumors and is the most effective treatment for children with severe epiliepsy
Despite consistently voting “no” on Colorado’s ballot measures for marijuana, the parents of Charlotte Figi began treating her with cannabis when she was having 300 grand mal epileptic seizures per week. Cannabis reduced the seizure rate from 300 to between 2 to 4 seizures per month. Based on its effectiveness for these young patients, the “Charlotte’s Web” strain is the subject of Congressional legislation that passed in the Republican-controlled House of Representatives in 2014.
In January, 2013, the NCI reported that in a two year study, “a dose-related decrease in the incidence of hepatic adenoma tumors and hepatocellular carcinoma (HCC) was observed … Decreased incidences of benign tumors (polyps and adenomas) in other organs (mammary gland, uterus, pituitary, testis, and pancreas) were also noted … In another study, delta-9-THC, delta-8-THC, and cannabinol were found to inhibit the growth of Lewis lung adenocarcinoma cells in vitro and in vivo. In addition, other tumors have been shown to be sensitive to cannabinoid-induced growth inhibition.”
Trying to grow medication when seriously ill
The effectiveness of medical marijuana for a particular illness, disability, or condition depends on the strain used. There are approximately 2,800 strains available today. According to Yahoo! Answers, it takes between two (2) and six (6) months to cultivate marijuana depending on the “strain.” Substantial work is required for patients with cancer, AIDS or in wheelchairs to cultivate marijuana. The cultivation process is subject to various issues including spider mites, mold and often expensive equipment. It is cruel to require those most in need of medical cannabis to devote their limited strength and efforts to the often complex and difficult task of cultivation.
Deciphering the Medical Marijuana Program Act
When they passed the CUA in 1996, California voters asked the state and federal governments to “implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.” Ca. Health & Safety § 11362.5(B)(1)(c). Accordingly, as noted above, the state’s Medical Marijuana Program Act (“MMPA”) was established in 2004 in-part to address the issue of medication availability for seriously ill and disabled patients unable to cultivate on their own. The MMPA was also enacted to ensure that patients with cancer, AIDS, mental illness, serious disabilities, and other recognized medical conditions “who obtain and use marijuana for medical purposes upon the recommendation of a physician” have access to medication because their respective disabilities make cultivation impossible. (Ca. Health & Safety Code §§ 11362.5(B)(1)(a) and 11362.5 (B)(1)(b).) (emphasis added.) Exceptions from state prohibitions for patients who “associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes” are provided through Ca. Health & Safety Code § 11362.775, part of the MMPA.
California’s Disabled Persons Act and Unruh Civil Rights Act
Ca. Civil Code § 54(c) (“CDPA”) and § 51(f) (“Unruh”) both prohibit state and local laws, including zoning ordinances, that facially or by ignorant operation discriminate against seriously ill or disabled citizens. These laws protect people with physical or mental conditions that limit major life activities. Other states, including New York, have deemed medical marijuana patients protected under their disability anti-discrimination laws. (New York, S.B. 4406, § 3369(4)(5)(6), enacted 2014.) A discriminatory law is one that imposes more restrictions on patients of methadone clinics, medical clinics, hospitals, pharmacies or dispensaries thereby adversely impacting a protected class of people. The word “medical” precedes the word “marijuana” and shows the laws in this state were passed for people that, by definition, must be individuals suffering from physical or mental conditions that limit major life activities. Like section 54(c), Unruh –through its subsection (f) – not subsection (b) – prohibits municipalities from discriminating against medical marijuana patients. Contrary to a plethora of media reports and public misunderstanding, the only people who can participate in the collective process are people who are disabled and part of a class protected by state law. This nullifies media assertions of high percentage criminality.
Statement of Facts and Procedural Posture
Los Angeles County Municipal Code § 2701
This case presents yet another instance of a municipality enacting a facially discriminatory zoning ordinance with the bare desire to prevent a politically unpopular group from locating within its borders, dehumanizing them to isolation void of human commonality. Relying on unfounded fears, generalized prejudice, and illegitimate concerns, the County of Los Angeles (“the County” or “Los Angeles”) has gone to great lengths to prohibit all medical marijuana collectives from operating within its borders. First, pursuant to the blatantly invalid Los Angeles County Municipal Code § 2701 (“Section 2701, “§ 2701” or “ban”), the County is seeking to enjoin ACME SILVER PLACE’s operation. After withdrawing its conditional use permitting system for medical cannabis collectives in 2010, Los Angeles resorted to enacting its unconstitutional ban ordinance. The ban, Section 2701, suffers from the same constitutional deficiencies as the conditional use permitting system under which it failed to grant even a single permit, as well as other provisions of its code prejudicing medical marijuana collectives. The ban and the actions leading up to its enactment are further testament to the deep-seated discrimination held against medical marijuana patients it attempts to hide by characterizing all collectives as monolithic drug dealing “dispensaries” operated by a seedy group of profit-hungry criminals.
Contrary to the stereotype urged by the County and engrained in the minds of countless citizens through sensationalized media snippets and outrageous reality television programs, ACME SILVER PLACE (“ASP”) is a collective of patients all of whom have either been recommended for medical cannabis use by a licensed physician or who are caregivers for people issued such recommendations. ASP began operating in Hacienda Heights, part of unincorporated Los Angeles County, in 2013. Its membership is made up only of disabled individual suffering from conditions for which medical cannabis is recommended by their respective physicians. Several months after it opened, the County, pursuant to its ban, ordered ASP to close through administrative citations and notices. With apparent lack of compassion that must be the weave in societal strength.
In August, 2014, the County filed suit against ASP and, in an attempt to validate its constitutional and statutory rights, ASP filed a cross-complaint in late-2014 (“the Cross-complaint”) seeking declaratory and injunctive relief as well as damages for the County’s violation of 42 U.S.C. § 1983. In response to the Cross-complaint, the County filed a demurrer in December, 2014, asserting that: (1) ASP failed to adequately set forth disability claims against County; and (2) ASP failed to adequately set forth a substantive due process claim in its complaint. When it filed suit, the County also filed a Motion for Preliminary Injunction seeking to deem ASP a nuisance through a California Supreme Court case holding municipal bans of medical marijuana collectives are not preempted by state marijuana laws. Nowhere does the County address years of case law governing disability anti-discrimination laws that were not discussed in and not covered by that state Supreme Court decision its request for relief is based entirely upon. We must do better.
Legislative History of Section 2701
From the very beginning, the County openly displayed its visceral disdain of medical marijuana patient groups working collectively together. During several County Board of Supervisors public meetings held in July and November 2010, multiple statements evidencing discriminatory animus led to the ban at issue in this case, though not substantiated by law:
“I OVERSEE PROSECUTIONS IN THE PLACES MOST AFFECTED BY THE EXISTING AND FUTURE MEDICAL MARIJUANA DISPENSARIES. THESE PLACES ESSENTIALLY, YOU ENTER THEM THROUGH A GLASS CAGE. YOU COME IN, YOU PURCHASE YOUR MARIJUANA. YOU SHOW A CARD, YOU GIVE MONEY. THESE PLACES ARE TURNING OVER TREMENDOUS AMOUNT OF CASH.” (Jacquelyn Lacey, Dep District Atty., Los Angeles County, RJN #1, Hearing 7-6-2010, p.24,ll.1-25.)
Referencing what are themselves evidence of the County’s discriminatory animus, Ms. Lacey cited “tremendous amounts of cash,” a “glass cage” and potential criminal activity as reasons for enacting the ban. Following her comments, several citizens commented:
“I WANT ALL OF YOU TO KNOW THAT WE ARE WIDE AWAKE NOW, ORGANIZING AND READY TO DO WHAT IS NECESSARY TO BLOCK M.M.D.S FROM OUR COMMUNITY. I AM DEEPLY CONCERNED FOR THE PEOPLE WHO HAVE SEVERE MEDICAL CONDITIONS THAT THIS DRUG MIGHT HELP, BUT I FEEL IT SHOULD BE HANDLED DIFFERENTLY.” (Gail Sound, RJN #1, Hearing p.20,ll.22-25;p.21,ll.1-2.)
“WE HAVE STRONG RESERVATIONS ABOUT POTENTIAL CRIME, NEGATIVE IMPACTS ON RESIDENTS AND LOCAL BUSINESSES.” (Marlene Rader, simple citizen, not criminal professional) RJN #1, Hearing p.21, ll.12-14.)
“WHAT IF I GO TO SELL MY HOME? OH BY THE WAY, THERE’S A MARIJUANA DISPENSARY ACROSS THE STREET. AM I GOING TO BE ABLE TO SELL MY HOME?” (Daryl Ditterbrand, another common citizen, RJN #1, Hearing p.22, ll.23-25.)
Again evidence of discriminatory animus, the comments of these citizens addressed “potential crime,” “impacts on residents” and land values. Thereafter, the citizen comments, as well as those of Ms. Lacey, were embraced and adopted by Sup. Michael Antonovich:
“I THINK THE ELOQUENT STATEMENTS BY THOSE WHO WERE SUPPORTING THIS BAN TODAY SHOWED THE WIDESPREAD OPINION OF SUPPORT FOR THIS FROM OUR COMMUNITIES AND FROM ALL WALKS OF LIFE.” (L.A. County Sup. Antonovich, RJN #1, Hearing p.36,ll.2-6; 7-6-2010.) Where clearly “all walks of life” are not represented.
While it is the Court rather than Supervisor Antonovich that is ultimately responsible to protect minorities from laws passed by the majority that, for example, in the past segregated drinking fountains and restrooms based on skin color, his announced discriminatory animus supporting the ban is quite appalling in light of comments bringing light to the truth made by Supervisor Zev Yaroslavsky during the same meeting:
“YOU HEARD SOME TESTIMONY FROM PEOPLE TODAY. I HAVE PERSONAL FRIENDS WHO WERE TERMINALLY ILL WITH CANCER FOR WHOM THE QUALITY OF LIFE WAS MADE SOMEWHAT MORE PALATABLE BECAUSE OF THE AVAILABILITY OF THIS SUBSTANCE UNDER A CONTROLLED SITUATION. AND I’D CERTAINLY HOPE THAT WE NOT MAKE IT HARDER FOR PEOPLE SUCH AS THOSE INDIVIDUALS WHO DO FACE LONG-TERM OR TERMINAL ILLNESSES FROM GETTING THE KIND OF ASSISTANCE THAT THEY NEED TO ADDRESS THEIR QUALITY OF LIFE ISSUES IN THEIR CLOSING DAYS.” (L.A. County Sup. Yaroslavsky, RJN #1, Hearing p.43,ll.2-10;7-6-2010.)
Despite Supervisor Yaroslavsky’s valid, proper concerns which make clear the County’s knowing that it is sick and disabled people who are the real target of the ban, the concerns about proliferation, land values and speculative crime issues continued to be advanced. In what is classic “not in my backyard” (“NIMBY”) banter so often misunderstood by municipalities, the citizen comments show further the improper NIMBY assertions despite their concurrent knowledge of the disabled people they intended to affect:
“THIS IS A PUBLIC SAFETY ISSUE. IT IS NOT A DEBATE OVER THE MEDICAL PROPERTIES OF A DRUG. PROPONENTS OF BOTH SIDES SHOULD RECOGNIZE THE PUBLIC SAFETY ISSUE AND SUPPORT THIS BAN.” (Tulane Peterson, RJN #1, Hearing p.23,ll.13-16.)
“I AM DEEPLY CONCERNED FOR THE PEOPLE WHO HAVE SEVERE MEDICAL CONDITIONS THAT THIS DRUG MIGHT HELP, BUT I FEEL IT SHOULD BE HANDLED DIFFERENTLY.” (Gail Sound, RJN #1, Hearing p.20,l. 25;p.21,ll.1-2.)
“I WAS AT A REGIONAL PLANNING COMMISSION IN DUARTE JUST RECENTLY AS WELL. AND THE OVERWHELMING PUBLIC OPINION IS PLEASE, DON’T PUT THIS ANYWHERE NEAR US.” (Dan Kirby, RJN #2, Hearing 11-23-2010, p.65,ll.14-16.) By un-evidenced irrational fear.
When it enacted the ban, there can be no doubt the Board was well aware of the impact its decision would have on disabled people. In one swift action, the Board banned both the “good” and the “bad.” It enacted the ban despite evidence the “good” are not the problem and with no evidence there was any issue with the so-called evil, money-hungry, allegedly illegally operating entities:
“FOUR YEARS. AND WE HAVEN’T HAD ANY PROBLEMS IN THE UNINCORPORATED AREA OF THE COUNTY. A MILLION AND A HALF PEOPLE, IT WOULD BE THE SECOND LARGEST CITY IN THE COUNTY IF IT WAS ITS OWN CITY. AND WE HAVEN’T HAD ONE SINGLE PROBLEM. IN FACT, WE HAVEN’T HAD ONE SINGLE DISPENSARY APPROVED. AND NOW WE’RE ASKING FOR A BAN? WELL, WE HAVE A BAN. WE HAVE A VERITABLE BAN. WE HAVEN’T APPROVED A SINGLE ONE. AND WE’VE ONLY HAD FIVE REQUESTS.” (Sup. Yaroslavsky, RJN #1, Hearing 7-6-2010,p.45,ll.3-10.)
The record further makes clear that Supervisors knew medical marijuana collectives are established under state law for people with cancer and other disabilities:
“I DO KNOW QUITE A NUMBER OF PEOPLE, CLOSE PERSONAL FRIENDS OF MINE OVER THE YEARS, OVER THE LAST 30 YEARS, WHO HAVE HAD SERIOUS CANCER, IN SOME CASES TERMINAL CANCER FOR WHOM MEDICAL MARIJUANA WAS THE DIFFERENCE BETWEEN SOME KIND OF A SEMBLANCE OF A QUALITY OF LIFE IN THEIR FINAL DAYS AND MONTHS AND THOSE WHO WEREN’T. THIS IS NOT SOME KIND OF A SCHEME OR A SCAM. IT’S NOT SOME KIND OF A JOKE. THIS ACTUALLY HAS A POSITIVE IMPACT ON REAL PEOPLE WHO HAVE REAL DISEASES THAT CAN BE MITIGATED IN SOME CASES WITH MEDICAL MARIJUANA. AND THAT’S WHY MEDICAL MARIJUANA IS LEGAL IN THIS STATE.” (Sup. Yaroslavsky, RJN #1, Hearing 11-23-2010, p.79,ll.14-24.)
Moreover, despite citizen fear-mongering and crowd-hype alleging crime is caused by dispensaries, no empirical data or evidence supporting that notion was presented during the hearings. To the contrary, supervisors were, in advance of the meeting, provided with actual evidence showing crime decreases around collectives: This is decided Bullying.
“I TRUST YOU HAVE ALL HAD AN OPPORTUNITY TO REVIEW THE LETTER THAT I SUBMITTED TO YOUR OFFICES ON WEDNESDAY OF LAST WEEK AND THE REPORT THAT I DELIVERED ON THURSDAY. THAT REPORT SHOWS THAT OUR EXPERIENCE AND OUR RESEARCH DEMONSTRATE THAT SENSIBLE REGULATIONS FOR MEDICAL CANNABIS COLLECTIVES REDUCE CRIME AND REDUCE COMPLAINTS. I UNDERSTAND THERE ARE PUBLIC SAFETY CONCERNS. AND THE WAY TO DEAL WITH THOSE IS WITH REGULATION AND NOT WITH A BAN THAT PUSHES BACK THIS ACTIVITY INTO THE SHADOWS.” (Don Duncan, ASA, RJN #1, Hearing 11-23-2010, p.71,ll.12-21.)
Section 2701 targets a discrete and insular minority class.
While this case proceeds along the path of so many before it, the sheer bluntness of the County’s animus separates this action from the prototypical “not-in-my-backyard” confrontation and shows utter intent to discriminate against what can only be a protected group. Where a discrete and insular minority is targeted, discriminatory intent normally remains below the surface subject only to inference, speculation and conjecture. The decision-maker typically attempts to obscure its unlawful motive through the pretext of lawful considerations forcing the harmed party to rely solely on circumstantial evidence. A recent example of such an attempt is illustrated in Pacific Shore Properties v. City of Newport Beach (2013) 730 F.3d 1142 [Pacific Shores] (RJN #3). All the proper things are said and done in public while the decision-maker works behind the scenes in violation of the law. While a myriad of evidence of such concealment is evident, concealment is only part of the case here. Indeed, the County has broadcast its discriminatory animus repeatedly, as shown above. Can we as seekers of equality for all accept such bias?
III. Legal Standard
“Two interrelated factors bear on the issuance of a preliminary injunction—[t]he likelihood of the plaintiff’s success on the merits at trial and the balance of harm to the parties in issuing or denying injunctive relief.” (County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 866.) Whether an ordinance is valid is a question of law. (Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289, 305.)
ASP has established it can only provide for individuals who are disabled under the definition set forth in Ca. Gov’t Code § 12926
Sections 12926 and 12926.1 of the Government Code provide that people who suffer from physical or mental conditions that limit major life activities are protected as disabled individuals. The state’s CUA requires that a patient’s marijuana use be:
“Deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” (Ca. Health & Safety Code § 11362.5(b)(1)(A) (emphasis added.)
All of the listed items are physical or mental conditions that limit some major life activity. Like the CUA, the MMPA (the part of the law governing ASP) provides only for disabled people by requiring a person prescribed marijuana suffer from:
“(1) Acquired immune deficiency syndrome (AIDS); (2) Anorexia; (3) Arthritis; (4) Cachexia; (5) Cancer; (6) Chronic pain; (7) Glaucoma; (8) Migraine; (9) Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis; (10) Seizures, including, but not limited to, seizures associated with epilepsy; (11) Severe nausea; (12) Any other chronic or persistent medical symptom that … :
(A) Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336).” (Ca. Health & Safety Code § 11362.7 (h).)
In order for ASP to operate lawfully under the MMPA, its membership can consist only of people who suffer from the enumerated conditions in section 11362.7(h) of the Health & Safety Code. It is axiomatic that any person suffering from those conditions is protected as a disabled person under the definition in Gov’t Code § 12926. Even if the County alleges ASP fails to operate within the state’s framework, it must produce sufficient evidence (i.e. actual evidence that a significant percentage of ASP’s members do not use marijuana medicinally to treat or alleviate conditions associated with physical or mental conditions that limit major life activities) of violation by ASP. Such evidence has not been provided by the County and no such evidence exists. On the other hand, ASP has included the declarations of Marla James (Ex. 1), a patient member of ASP, as well as the declaration of Dr. Bradley Idelshon (Ex. 2), a licensed California physician, showing the ASP patient group consists solely of individuals who meet the state law definition of disabled. The “discrete and insular minority” in this case is a statutorily defined protected class. Just as they cannot ban methadone clinics, municipalities cannot ban medical marijuana collectives because both entities serve a group that can only consist of people within the protected class. Differing in principle and expressed law from dispensary violators of volatile substance uses such as oxycodone or ambien.
The County knew it was targeting a protected class
The aforementioned record from the County Board of Supervisor meetings held in July and September, 2010 ahead of enactment of section 2701 show the ban facially targets what can only be a protected group. The statement by plain citizen Gail Sound that, “I deeply am concerned for people who have severe medical conditions that this drug might help, but I feel it should be handled differently” (Public meeting, RJN #1, 7-6-2010, p.20,l. 25;p.21,ll.1-2) is evidence that citizens and the Board were well aware of the “people who have severe medical conditions” who would be adversely impacted by the ban. Moreover, statements by Supervisor Yaroslavsky that, “Quite a number of people, close personal friends of mine over the years, over the last 30 years, who have had serious cancer, in some cases terminal cancer for whom medical marijuana was the difference between some kind of semblance of a quality life in their final days and months” and that medical marijuana is “not some kind of scheme or a scam. It’s not some kind of joke” (Public meeting, RJN #2, 11-23-2010, p.79,ll.14-24) further provide evidence the County knew it was passing a ban that targets a discrete and insular protected class.
Improper use of NIMBY (Not In My Back Yard), speculative fears about proliferation and unsubstantiated crime were the real motivations for the ban
Evidence of the County’s NIMBY intent behind its ordinance is demonstrated through testimony before the Board that focused on irrational fears that were without basis and utterly disconnected from the actual disabled people who work together in properly operating medical marijuana collectives. During the July, 2010 public hearing held ahead of the ban’s enactment, citizen Daryl Ditterbrand stated, “What if I go to sell my home? Oh by the way, there’s a marijuana dispensary across the street. Am I going to be able to sell my home?” (Public meeting, RJN #1, 7-6-2010, p.22, ll.23-25.) A former city councilman from a city in Los Angeles County stated, “I was at a regional Planning Commission meeting in Duarte just recently … and the overwhelming public opinion is please, don’t’ put this anywhere near us.” (Dan Kirby, Public meeting, RJN #2, 11-23-2010, p.65,ll.14-16.) County prosecutor Jaqueline Lacey opined that collectives are “flush with cash” and cause crime. (Public meeting, RJN #1, 7-6-2010, p.24,ll.1-25.)
In Regional Economic Community Action Program, Inc. v. City of Middletown (2d Cir. 2002) 294 F.3d 35 [RECAP], the court quoted several city officials in support of its conclusion that the plaintiffs’ disabilities were a motivating factor behind a decision to DENY a permit to a home for recovering alcoholics. In that case, the Mayor said:
“And what I have tried to convey to RECAP and through different surrogates is that enough is enough … Middletown is not the hub of human services programs … Do [this program] in some other community that has not contributed to the extent, not even close to what Middletown has contributed in regards to participation and human service programs.” (294 F.3d at 50.)
Additionally, a Planning Board member said, “why do we have to have all the treatment facilities right here in Middletown?” (Id.) Another member said, “there’s an over-concentration of residential and social service facilities in the City.” Based on this evidence, the court concluded the statements, “more than suffice to establish the plaintiffs’ prima facie case.” The discriminatory ordinance was stricken.
In Bay Area Addiction Research and Treatment, Inc. v. City of Antioch (9th Cir. 1999) 179 F.3d 725, a methadone clinic sued the City of Antioch after it adopted an ordinance prohibiting methadone clinics through a spacing requirement. (Id. at 727-28.) The court in that case concluded that the ordinance was facially discriminatory and a per se violation of anti-discrimination laws because it subjected methadone clinics, but not other medical clinics, to spacing limitations. (Id. at 734-35.) The case was remanded to the trial court. (Id. at 737.) Upon remand, the trial court found the city ordinance was discriminatory and enjoined its enforcement. (Bay Area Addiction Research and Treatment, Inc. v. City of Antioch (N.D. Ca. March 16, 2000) No. C 98-2651 SI, 2000 WL 33716782, at 11-12.)
In Project Life, Inc. v. Parris Glendening (2001) 139 F.Supp.2d 703, the court found a violation of disability anti-discrimination laws based on city officials’ “illegal acquiescence to [the] desire” not to have a program for recovering addicts “located in ‘their backyard.’” (Id. at 708.) Similarly, in another zoning discrimination case, the court struck down an impermissible NIMBY ordinance observing the “case presents the familiar conflict between the legal principle of non-discrimination and the political principle of not-in-my-backyard.” (New Directions Treatment Services v. City of Reading (3d Cir. 2006) 490 F.3d 293, 295; A Helping Hand, L.L.C. v. Baltimore Cnty. (4th Cir. 2008) 515 F.3d 356, 367 at 366.)
In Freedom Services, Inc. v. Zoning Hearing Board of the County of New Castle (Pa.Cmwlth. 2009) 983 A.2d 1286 [Freedom Services] (RJN #4), the Pennsylvania Commonwealth Court overturned the denial of a methadone clinic’s request for a special exception on the basis of inadequate parking. The county in that case contended that the methadone clinic failed to present sufficient evidence that it would not harm the health and safety of the community, given the general unsuitability of the volume of cars and patients and the extensive hours of operation, and because it failed to show how the parking and traffic needs would blend in with the existing businesses and residences. (Id at 1292.) In addition, the county found that children were present in the area, and other pedestrian and vehicular traffic in the area would seriously be compromised by the parking request of the applicant because of the high volume of cars emanating from the clinic. (Id.) While the Court understood the County’s “and neighboring residents’ concerns about having this type of facility in the neighborhood”, the court stated that these concerns could not serve as a basis for treating medical methadone clinics differently for zoning purposes. (Id.) “Simply put, a methadone clinic cannot be treated any differently than a medical clinic that is serving as an ordinary medical clinic.” (Id.) Here, section 2701 treats medical marijuana collectives different than other medical facilities, which are permitted as of right in various zones in Los Angeles County. The testimony before the Board and statements made by supervisor members as well as materials submitted prior to the ban’s passage show there was no evidence provided supporting the irrational fears manifested through general statements about proliferation, speculative crime or decreased land values. Instead, citizens and supervisors impermissibly used “not in my backyard” as a basis for their decision to enact and implement the ban. While “not in my back yard” ought include bigotry and hatred.
There was no rational basis for banning collectives
The testimony during the Board of Supervisors’ hearings shows the County did not have a problem with “proliferation,” had no evidence crime increases around collectives and no evidence land values are impacted by them. During the ban ordinance hearings, Supervisor Yaroslavsky said, “Four years. And we haven’t had any problems in the unincorporated area of the county. A million and a half people, it would be the second largest city in the county if it was its own city, and we haven’t had one single problem.” (Board public meeting, 7-6-2010, p.45,ll.3-10.) Yet the County chose to ban patients operating in conformance with state law as well as those the County perceived as evil criminal enterprises flush with cash that would lower land values and that should not be in their “back yard.” This is an ironic protection of the most against the least.
Under the County’s analysis, it could, for instance, ban all synagogues because of stereotypes void of any evidence bantered about by the citizenry that Jews are flush with cash. Likewise, it could ban hair salons that cater to African-American women because such salons might attract black men who, during public meetings, various citizens report to the Board as being a group of people who commit crimes. Using the logic the Board engaged in this case, it could ban those hair salons based on speculation that businesses catering primarily to African-American individuals cause land values to decrease.
In City of Cleburne v. Cleburne Living Center (1985) 473 U.S. 432 [Cleyburn], the Court was confronted with city council action that singled out group homes for the mentally retarded, requiring that use to apply for and be granted a special use permit, which other residential users were not required to obtain. The city defended both the separate procedure and its permit denial on the grounds they were rationally related to legitimate government purposes, inter alia, controlling congestion, securing “serenity of the neighborhood,” protecting safety of the residents.
Justice White, writing for the Court, set forth the appropriate mode of analysis, asking: “May the city require the permit for this facility when other care and multiple-dwelling facilities are freely permitted?” The city could not treat this facility differently, he said, “unless it would threaten legitimate interests of the city in a way that other permitted uses such as boarding houses and hospitals would not.” (473 U.S. at 448 (emphasis added).) The Court then carefully examined each proffered reason, but did not merely ask if it were in some abstract way one of the issues a city could be concerned with, but compared the impact of the excluded use to similar permitted uses. The Court determined that the similar uses permitted in the zone could not be distinguished by impact on the community. Accordingly, the Court held the city’s reasons “fail rationally to justify singling out [a group home for the retarded] for the special use permit, yet imposing no such restrictions on the many other uses freely permitted in the neighborhood.” (Id. at 450.) Despite holding that mentally disabled people are not a protected class through constitutional equal protection, the Cleburne court found that unfounded and irrational fears are not a rational basis for city ordinances.
In words which are directly applicable here, the Court held that deferring to the fears and concerns of the community in denying the permit was not a defense, first stating “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating” one use from another. It went on to say “…the city may not avoid the strictures” of the law by deferring to the objections of some faction of the body politic. (Id. at 448.) The Court held that denying a permit based on such vague, undifferentiated fears is again permitting some portion of the community to validate discrimination. (Id. at 449.)
By the County’s own record, the total ban of medical marijuana patient groups was enacted despite a complete lack of empirical evidence collectives cause crime or that there was uncontrolled proliferation in the County over the four (4) year period preceding the ban. The ban was enacted despite evidence provided by Supervisor Yaroslavsky that over the aforementioned four year period there had been no problem in the unincorporated county. Instead, as Supervisor Antonivich acknowledged, the ban was enacted because of overwhelming “majority support” and the “eloquent statements” of citizens speculating that collectives proliferate, cause crime and reduce land values.
Through emerging awareness, the patients of ASP have established a substantive due process fundamental right
Substantive due process provides for rights not specifically enumerated in the Constitution. (Gonzales, 500 F.3d at p.862.) It protects against governmental conduct that “shocks the conscience.” (Rochin v. California (1952) 342 U.S. 165,172.)
It certainly is conscience shocking for a municipality the size of Los Angeles County to enact legislation that forces seriously ill people to either drive outside the County or cultivate their own cannabis by banning the only mechanism provided by state law through which they can obtain it. The court in Baniani, supra, wrote, “It would be cruel for those whose need for medical cannabis is the most dire to require that they devote their limited strength and efforts to the actual cultivation of the [marijuana] medicine …” (Baniani, supra, 229 Cal.App.4th at p.60.) The court in Bass v. Richardson (SDNY,1971) 338 F.Supp. 478, enjoined a state program that reduced benefits paid to seriously ill and disabled beneficiaries and that operated to reduce and in some cases altogether eliminate their ability to pay for medicine stating, “The injury to those whose health is maintained … through medication is not merely irreparable; it is ultimate.” (Id. at p.489.)
Not only do they have a protected right conveyed by statute, the patients who use medical cannabis to alleviate excruciating pain caused by disease or disability most certainly have acquired a fundamental right to do so through “emerging awareness.” (Lawrence v. Texas (2003) 539 U.S. 558 [Lawrence]; Raich v. Gonzales (9th. Cir,2007) 500 F.3d 850 [Gonzales] (RJN #5).) The court in Gonzales held there is a fundamental liberty interest at issue for medical marijuana patients and suggested the federal CSA is not a narrowly tailored measure when a substantive due process fundamental right is eventually established for medical marijuana patients. (Id. at fn. 16 citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006) 546 U.S. 418.) The court held that the level of emerging awareness in 2007 was not sufficient under Lawrence to establish that fundamental right. However, the court also wrote it would likely be sooner than later that the Lawrence emerging awareness standard would be met and a fundamental right defined for seriously ill medical cannabis patients. (Id. at p.866.)
Indeed, the emerging awareness requirement under Lawrence has been satisfied in the eight (8) year period since the 2007 Gonzales decision. When Gonzales was handed down, only ten (10) states had medical marijuana laws and Congress had, through its art. 1, sec.8, cl. 17 powers over the District of Columbia, prohibited implementation of that federal city’s 1998 voter-passed Legalization of Marijuana for Medical Treatment Act. However, in 2009, Congress removed the Barr Amendment and allowed the District to legalize marijuana for medical purposes. In 2007, state medical marijuana laws covered approximately 44,000,000 or only about 14% of Americans living in ten (10) states. Today, half the population of the United States – approximately 153,377,112 Americans living in 23 states, Washington D.C. and Guam have laws that provide for medical cannabis. Since Congress has allowed medical marijuana in the District of Columbia there are now legal medical marijuana dispensaries and large marijuana cultivation facilities just blocks from the Capitol. Additionally, in December, 2014, Congress defunded the Drug Enforcement Administration in states with medical marijuana laws and the House of Representatives passed legislation to allow “Charlotte’s Web” types of cannabis to treat people with severe epilepsy. In 2013, the NCI published that cannabis reduces the size of various cancerous and benign tumors and countless reports have shown cannabis is an effective treatment for people with Parkinson’s disease, AIDS dementia and Alzheimer’s disease. These being our highest successful aspirations.
There is no doubt the right of an individual to make health determinations – people with cancer, AIDS, in wheelchairs and with other illnesses – comprises a liberty interest deeply rooted in American history and tradition. (Gonzales, supra.) With the rapid acceptance of medical marijuana in multiple states and the need for access to it especially by terminally ill people, the elements of emerging awareness have been met such that a fundamental right has been established that requires a higher level of scrutiny be applied when analyzing laws that impinge on patients’ ability to access and use cannabis. An ordinance banning medical marijuana collectives including those made up solely of patients and their caregivers cannot meet that level of scrutiny, especially when based on the unsubstantiated fears advanced by the County when it enacted section 2701.
There is no nuisance per se or emergency situation for purposes of irreparable harm
As set forth above, the County must show: 1) a probability of success on the merits; 2) irreparable harm; and 3) that the balance of hardships weighs strongly in favor of injunctive relief. In support of its request, the County cites it may rely on section 2701 to demonstrate a nuisance per se that requires no actual showing of irreparable harm. However, in Pacific Shores, supra, the City of Newport Beach enacted an ordinance to eliminate or reduce group homes throughout the City. On its face, the ordinance appeared facially neutral. However, through statements made during city council meetings and by public officials, it was shown the city intended to eliminate group homes used by people who specifically meet the definition of disabled under California and federal law:
“The legislative history indicates that the Ordinance was enacted for the purpose of eliminating or reducing the number of group homes throughout the City. The Plaintiffs have come forward with statistics, provided by the City, that the Ordinance had the effect of reducing group home beds by 40%. The Plaintiffs also provided evidence that group homes were specifically targeted for enforcement. The City created a task force to locate group homes, undertake surveillance of them, and enforce the zoning code strictly against them.” (Pacific Shores, 730 F.3d at 1162.) (Emphasis added.)
The court in Pacific Shores (RJN #3) struck down the city’s ordinance even though it was facially neutral finding the city could not rely on the neutrality of the statute in light of the evidence of discriminatory animus found in council meeting transcripts, statements by public officials and statistics showing enforcement of the ordinance by the city focused only on group homes that can only include disabled individuals, to our shame.
Here, as discussed above, the County’s own records show no evidence of potential crime or proliferation. Indeed, regional planning commission official Karen Simmons testified before the Board on Nov. 23, 2010 that during the County’s Planning Commission hearing on the ban ordinance, “14 members of the public spoke in opposition to the proposed [ban]” and “no members of the public spoke in favor” of it. (RJN #2, Public hearing 11-23-2010, p.64,ll.6-8.) The records of the planning commission meeting and both the July 6, 2010 and November 23, 2010 Board of Supervisors meetings are void of any evidence (other than presumptive, conclusory, speculative and baseless fears similar to those announced by citizens years before who opposed AIDS hospices) showing collectives cause crime, reduce land values or proliferate. Moreover, Supervisor Yaroslavsky said during the hearings there had been “no problems” over that four (4) year period the County provided a conditional use permitting system for collectives. It follows that nuisance per se cannot be used by the County to disconnect its ordinance from evidence of discriminatory animus. Just as Newport Beach could not rely solely on the facially neutral language of its ordinance to hide discriminatory intent, the County cannot bootstrap irreparable harm to what it deems a valid legislative act when its lawmakers knew there had been no problem over four (4) years and instead based its actions on improper NIMBY as well as speculative crime and proliferation reasons. “Not in my back yard” ought to protect the weaker and disabled.
The County cannot succeed on the merits when its ordinance is facially discriminatory
There certainly can be no probability of success on the merits when the ordinance at issue was not rationally related to a legitimate government purpose. NIMBY, speculative crime, real property values and proliferation concerns unsupported by any evidence do not constitute “LEGITIMATE GOVERNMENTAL PURPOSES.” The hearings demonstrate those unlawful purposes were the only purposes put forward by citizens and ban-supportive supervisors. Under a pure rational basis analysis, section 2701 fails. No matter how hated or misunderstood are the disabled people who use cannabis medicinally, all of the reasons the County advanced for banning collectives are impermissible and unjust whether the class is protected or not. However, disabled people are protected – they are a discrete and insular class of people protected by state law. Accordingly, the action of the County must meet a heightened statutory level of scrutiny that does not apply solely to the use, but to the class the use exists for. (See Freedom Services, supra.)
The Riverside case does not provide a basis for extraordinary relief
The court in People v. Bradley (1998) 75 Cal.Rptr.2d 244, 64 Cal.App.4th 386, wrote, “The Supreme Court has repeatedly reminded this state’s lawyers and judges that its opinions are not authority for propositions not considered in its decisions. (Citations.)” (Id. at 249-50.) Throughout its moving papers and complaint, the County refers to City of Riverside v. Inland Empire Patients’ Health and Wellness Center, Inc. (2013) 56 Cal. 4th 729 and is entirely reliant upon that case in seeking pre-trial injunctive relief. Given it has been established that municipal ordinances cannot violate state anti-discrimination laws, whether the state Supreme Court’s holding in Riverside considered and decided discrimination issues is dispositive in terms of the County’s argument. A quick word-search on the internet of the Supreme Court’s Riverside decision for the letters “discrim” yields no results. Indeed, the sole issue in Riverside was whether permissive municipal zoning codes that exclude medical cannabis collectives as a use or outright bans of them by municipalities are preempted by the state’s CUA or MMPA. The Supreme Court did not consider the discrimination issue in Riverside. No matter how expansive the County asserts the Riverside case is, the issue of discrimination against a class protected by state law is nowhere mentioned in and was not considered by the Supreme Court. It follows that, under Bradley, supra, the Riverside decision is not an authority in regard to those issues. Hence, the likelihood of success on the merits in the County’s case here is far different than in cases where discrimination has not been alleged, argued and proven. Here, there it is strongly apparent that the City’s ordinance is, like the ordinance in Pacific Shores, invalid.
The Ross case is inapplicable here
An assertion of Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal. 4th 920 as decisional authority allowing the County to continue its unfettered intentional discrimination against medical cannabis patients is misplaced. Ross is a case that focused on accommodation requirements under FEHA imposed on third-party private employers. Referencing voter pamphlets and information disseminated to the electorate prior to the passage of the Compassionate Use Act in 1996, the state Supreme Court concluded voters never intended private employers must accommodate medical cannabis use under FEHA. California cities and counties are creatures of state government. (Qualified Patients Ass’n v. City of Anaheim (2010) 187 Cal.App.4th 734, 754 [QP].) As such, they were deemed aware that the CUA and MMPA were enacted solely for disabled people. Private employers do not have the same obligation as cities and counties. Unlike the private third-party employers at issue in Ross, the County in this case is in-part responsible to its citizens suffering from physical and mental conditions that limit major life activities. The issue in this case is not whether the County must accommodate patients by modifying a facially neutral law that happens to have a disparate impact on the protected class. Rather, this case is about pure intentional discrimination against people who can only be part of a protected class. The leaning to argue otherwise robs us of our humanness.
In this case, the evidence of discriminatory animus cannot be disputed because it is from the County’s own records of elected representatives’ and citizens’ public testimony. The Board and citizens make clear they knew collectives were for seriously ill individuals meeting the definition of disabled when they urged and thereafter enacted their ban. The record is void of testimony about people not being patients or that marijuana really isn’t a medicine. Instead, discriminatory animus was demonstrated through multiple NIMBY and other statements that have been deemed to be, in similar cases spanning decades, evidence of per se discrimination against disabled people.
The discrete and insular minority here is a group of disabled people prescribed medical cannabis by their respective physicians. The state Supreme Court did not address discrimination in its state law preemption case handed-down in 2013 and, as that Court held years before, trial courts and lawyers should not use its decisions to support issues it has not ruled on. Accordingly, the County’s ban is not made invalid through state law preemption, but rather because its law improperly discriminates against a statutorily protected minority class. It is those minorities the trial court is arguably most responsible to protect in our system of checks and balances. It follows that the trial court must not use a decision that addressed state law preemption to shirk or avoid its duty to protect the minority in this case from continuing discrimination by the County. Given the County cannot show irreparable harm nor can it show it has a probability of prevailing in this case, its request for pre-trial injunctive relief should be DENIED. We must restore our greater attributes through this effort to curtail present and future discrimination for ALL groups deemed “less than” or “other”.
DATED: January 16, 2015
Attorney for Defendants