Appellant in this case is the City of Los Angeles (City). Respondents are various collectives and individual members of collectives (Collectives) currently engaged in the cultivation, distribution, or use of medical marijuana within City limits.
The trial court consolidated the various separate lawsuits and, after multiple hearings, preliminarily enjoined enforcement of portions of the Ordinance on the following grounds: (1) violation of the federal right to equal protection; (2) preemption by state law; (3) violation of the state right to due process; and (4) violation of the state right to privacy. The City now appeals from the trial court's preliminary injunction.
For the reasons that follow, and based upon considerable guidance received from cases decided and a statute enacted after the trial court rendered its decision, we reverse the trial court's order granting the request for a preliminary injunction. We remand this case for further proceedings consistent with this opinion.
Both the trial court's order and the issues raised in this appeal involve the interplay of various state and local laws, enacted at different times since 1996. Accordingly, a lengthy statutory and procedural background follows.
In 1996, California voters approved Proposition 215, known as the Compassionate Use Act of 1996 (CUA), which is codified in Health and
Significantly, for purposes of this case, the CUA also provides that "[n]othing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes." (Health & Saf. Code, § 11362.5, subd. (b)(2).) It also expressly "encourage[s] the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." (§ 11362.5, subd. (b)(1)(C).)
In 2003, the California Legislature enacted the Medical Marijuana Program Act (MMPA), codified in Health and Safety Code sections 11362.7 through 11362.83. The MMPA was passed, in part, to clarify the scope of the CUA and promote its uniform application "among the counties within the state." (Stats. 2003, ch. 875, § 1, p. 6422.)
To accomplish these goals, the MMPA empowers the State Department of Health Care Services to create a voluntary program for the issuance of identification cards to "qualified patients." (Health & Saf. Code, § 11362.71, subd. (a)(1).) "Qualified patients" are defined as those persons "entitled to the protections" of the CUA. (§ 11362.7, subd. (f).)
Significantly, the MMPA also expressly extends immunity to the same enumerated Health and Safety Code sections for additional, "collective," conduct: "Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under [s]ection[s] 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570 [of the Health and Safety Code]." (§ 11362.775, italics added.)
The MMPA, as originally enacted, also affirmatively provided that "[n]othing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article." (Stats. 2003, ch. 875, § 2, p. 6424 [Health & Saf. Code, former § 11362.83].) More importantly, during the pendency of this appeal, that section was amended to read, in full: "Nothing in this article shall prevent a city or other local governing body from adopting and enforcing any of the following: [¶] (a) Adopting local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective. [¶] (b) The civil and criminal enforcement of local ordinances described in subdivision (a). [¶] (c) Enacting other laws consistent with this article." (Health & Saf. Code, § 11362.83, italics added.)
In response to citizen complaints and law enforcement concerns about the proliferation of storefront medical marijuana dispensaries within City limits, the City Council passed Interim Control Ordinance No. 179027 (ICO) on August 1, 2007, and the mayor approved it on August 10, 2007. The ICO went into effect September 14, 2007.
The ICO also allowed up to two 180-day extensions of its prohibition so long as the City Council found that the various agencies responsible for investigation relevant to a permanent ordinance were exercising due diligence. Subsequently, the City Council enacted both of the available 180-day extensions. On June 19, 2009, the City Council passed an entirely new ordinance, Interim Control Ordinance No. 180749, which amended the ICO and extended its prohibitions to March 15, 2010, or the enactment of a permanent ordinance, whichever came first.
On January 26, 2010, the City Council passed the Ordinance, which added article 5.1 (§ 45.19.6 et seq.) to chapter IV of the Los Angeles Municipal Code.
Prior to enactment of the Ordinance, the City Council and City Planning and Land Use Management Committee (Planning Committee) conducted at least 16 public hearings regarding the community impact of entities engaged in the distribution of medical marijuana. The hearings involved testimony from members of the public, including medical marijuana patients, the owners and operators of entities engaged in the cultivation and distribution of medical marijuana, and residents living near these entities. These hearings also included testimony from high-ranking members of the Los Angeles Police Department. Evidence presented to the City Council and the Planning Committee showed both an explosive increase in the number of entities dispensing medical marijuana and a significant increase in crime and citizen complaints involving those entities. It also showed that some of these entities were diverting marijuana to uses not authorized by the CUA or MMPA. Finally, it showed that scarce law enforcement resources were often diverted to criminal investigations involving these entities.
The Ordinance requires all medical marijuana collectives to submit to a new registration and approval process to continue operation. (§ 45.19.6.2, subd. A.) Subject to an exception discussed below, the Ordinance caps the total number of allowable collectives at 70, to be distributed proportionally around the City's various neighborhoods according to population densities as mapped by the Planning Committee. (§ 45.19.6.2, subd. B.1.)
Collectives not eligible under the Ordinance because they had not previously registered under the ICO were sent letters by the City Attorney advising them that they were or would be in violation of the Ordinance and that continued operation might result in criminal prosecution.
Beginning in March 2010, the Collectives began filing lawsuits seeking to enjoin enforcement of the Ordinance. The multiple lawsuits were eventually consolidated before one trial court. On December 10, 2010, after extensive hearings, the trial court preliminarily enjoined enforcement of portions of the Ordinance.
The trial court based its injunction on a number of legal conclusions: (1) the Ordinance violates federal equal protection because it requires eligible collectives to have previously registered under the ICO, which, despite its terms, expired by operation of law nearly 60 days before the end of the registration period; (2) the Ordinance's sunset and penal provisions are preempted by the MMPA; (3) the Ordinance violates state procedural due process because it requires collectives that did not register under the ICO to cease operation immediately without the benefit of a hearing; and (4) the Ordinance's recordkeeping and record disclosure requirements violate the state right to privacy.
On January 10, 2011, the trial court required the Collectives to post a bond in the amount of $348,102 pursuant to Code of Civil Procedure section 529. On January 13, 2011, the court requested additional briefing on the bond issue and stayed the injunction pending resolution of the bond issue. To date, the bond issue has not been resolved and the trial court's stay of the injunction remains in effect.
On January 21, 2011, the City Council passed temporary urgency Ordinance No. 181530 (TUO) and the mayor approved it on January 25, 2011. The TUO amends the Ordinance, purportedly to resolve the defects in it as found by the trial court. By its terms, it remains in effect only until the preliminary injunction is reversed on appeal or permanent amendments to the Ordinance are enacted.
On appeal, factual findings made by the trial court must be accepted if supported by substantial evidence. (County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 867 [121 Cal.Rptr.3d 722] (Hill).) Ordinarily, the decision to issue a preliminary injunction is reviewed for an abuse of discretion. (City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 427 [83 Cal.Rptr.3d 1].) Whether a local ordinance is unconstitutional or preempted, however, is a question of law subject to de novo review. (Hill, supra, at p. 867; City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1168 [100 Cal.Rptr.3d 1] (Kruse); see Arcadia Development Co. v. City of Morgan Hill (2011) 197 Cal.App.4th 1526, 1534 [129 Cal.Rptr.3d 369] (Arcadia Development) [where pertinent facts are not in dispute, appellate review is de novo].)
As stated above, to be eligible to register under the Ordinance, a collective must have previously registered under the ICO on or before November 13, 2007. To be eligible to register under the ICO, a collective must have been in existence prior to September 14, 2007, the effective date of the ICO. In the court below, the City argued that prior registration under the ICO is a reasonable way to determine preference: past compliance with the ICO shows a willingness to follow the law, which in turn is a good predictor of law-abiding behavior going forward.
The trial court disagreed. It found the Ordinance's requirement of previous registration under the ICO to be arbitrary. The trial court concluded, therefore, that the Ordinance violates equal protection.
The trial court reasoned as follows. The City Council passed the ICO on August 1, 2007. The ICO, despite its express initial term of one year, expired by operation of law 45 days later on September 15, 2007. To reach this finding, the trial court relied upon Government Code section 65858, subdivision (a), which provides that local interim zoning ordinances, such as the ICO, automatically expire 45 days after their "adoption," unless extended after a noticed public hearing. Since no such noticed public hearing occurred in this case, the trial court concluded that the ICO necessarily expired on September 15, 2007, one day after its effective date of September 14, 2007, and only one day into the 60-day registration period which it authorized.
The trial court then opined — hypothetically — that an otherwise law-abiding collective able to register under the express terms of the ICO, might have declined to do so because of its belief that the ICO expired as of September 15, 2007. A failure to register under the ICO, then, was not necessarily a refusal to follow the law, but possibly only a recognition that the law was no longer valid. Thus, the trial court reasoned, a collective's failure to register under the ICO did not necessarily mean that it was less likely to follow the law in the future. Accordingly, the trial court concluded, the requirement violated federal principles of equal protection.
Before we evaluate the trial court's ruling, it is important to frame properly the issues before this court. The relevant issue is not the constitutionality or even the nonconstitutional legality of the ICO per se. The issue is the constitutionality of the Ordinance insofar as it requires prior compliance with the ICO.
Second, the trial court did not find the Ordinance unconstitutional as applied: it did not find — and apparently no evidence was presented — that any
In their briefs to this court, the Collectives likewise do not contend that any of them actually fit within this category theorized by the trial court. Thus, the equal protection challenge to the Ordinance remains facial rather than as applied.
The United States Supreme Court has articulated why such deference is paid to statutes which do not affect suspect classifications or fundamental rights: "This standard of review is a paradigm of judicial restraint. `The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.' [Citation.]" (FCC, supra, 508 U.S. at p. 314; see Las Lomas, supra, 177 Cal.App.4th at p. 858.)
We need not decide which test articulated by the Supreme Court is applicable in this case. Since we find, as will be discussed below, that the Collectives have not met their burden even under the more lenient standard, we need not discuss application of the stricter test. (See Guardianship of Ann S., supra, 45 Cal.4th at p. 1126.)
The Ordinance makes distinctions involving neither fundamental rights nor suspect classifications. It therefore must be analyzed under the rational basis test described above.
Insofar as it incorporates the requirement of prior registration under the ICO, the Ordinance essentially prohibits collectives that began operating on or after September 14, 2007, since they could not have registered pursuant to the ICO. It essentially allows those collectives in existence prior to September 14, 2007, so long as they also completed formal registration under the ICO. As such, the Ordinance is essentially a "grandfather provision" with the added gloss of a prior registration requirement. So-called "grandfather provisions" have routinely withstood equal protection challenges, both at the federal and state levels.
In New Orleans v. Dukes (1976) 427 U.S. 297 [49 L.Ed.2d 511, 96 S.Ct. 2513] (Dukes), the City of New Orleans banned all pushcart food vendors from the French Quarter who had not been operating for at least eight years prior to January 1, 1972. (Id. at p. 298.) Dukes, who had operated within the French Quarter for only two years prior to the cutoff date, challenged the
The court went on to find that the ordinance's classification furthered the city's purpose of preserving the historic ambience of the French Quarter and encouraging the tourist economy. The city council could reasonably conclude that "street peddlers and hawkers" interfered with the charm of the French Quarter and thus might discourage tourism if not "substantially curtailed" or "totally banned." (Dukes, supra, 427 U.S. at pp. 304-305.) The use of a "grandfather provision," banning some vendors but allowing others, was neither irrational nor arbitrary:
"The city could reasonably decide that newer businesses were less likely to have built up substantial reliance interests in continued operation in the [French Quarter] and that the two vendors who qualified under the `grandfather clause' — both of whom had operated in the area for over 20 years rather than only eight — had themselves become part of the distinctive character and charm that distinguishes the [French Quarter]. We cannot say that these judgments so lack rationality that they constitute a constitutionally impermissible denial of equal protection." (Dukes, supra, 427 U.S. at p. 305.)
Applying that law to the facts before it, the court further found a rational basis for the legislation at issue: "The members of this class of prior permittees ... may reasonably be assumed to rely on the limited fishery for their livelihood. The possibility this differentiation may not be exact does not render the statutes unconstitutional. Nor may Martinet successfully claim the statutes are invalid because they protect shark and swordfish from overfishing by new entrants but not prior permittees. [¶] The Legislature may adopt economic regulations `that only partially ameliorate a perceived evil.' [Citation.] [¶] The statutes are reasonably drawn to protect against overfishing, while also protecting the fishing industry and those persons who have invested in and practiced drift gill net fishing of shark and swordfish in the past...." (Martinet, supra, 203 Cal.App.3d at p. 795, quoting Dukes, supra, 427 U.S. at p. 303.)
It is clear, based on the authorities discussed above, that had the Ordinance simply chosen September 14, 2007, as the date prior to which collectives eligible under the Ordinance had to exist, the statute would have passed constitutional muster. The City, as of the date it passed the Ordinance, would have been able to articulate a rational relationship between the classification and a legitimate government interest: (1) the proliferation of crime associated with the increased number of medical marijuana collectives, coupled with the police department's limited resources, require that the number of collectives be restricted and their operations regulated; (2) those collectives in existence prior to September 14, 2007, and who have continued to operate from that time in a lawful manner have over a two-year track record that is a valid predictor of law-abiding behavior going forward; and (3) they should therefore be given preference over post-September 14 collectives.
Moreover, even if the unfairness to this theoretical class of collectives arguably implicates equal protection, the Collectives still have not demonstrated an equal protection violation. The Ordinance's requirement of prior registration under the ICO essentially differentiates medical marijuana collectives into three separate groups: (1) those in existence prior to September 14, 2007, who were therefore eligible to register under the ICO and who did so on or before November 13, 2007; (2) those in existence prior to September 14, 2007, who were therefore eligible to register under the ICO but who chose not to; and (3) those in existence on or after September 14, 2007, who were therefore ineligible to register under the ICO. The members of group 1 are eligible to register under the Ordinance, and thus potentially eligible to continue collective cultivation of medical marijuana as defined by the Ordinance, while those in groups 2 and 3 are not.
Since this is a facial constitutional challenge, the Collectives, as discussed earlier, bear the heavy burden of demonstrating the Ordinance unconstitutional " `in the generality or great majority of cases.' [Citations.]" (Guardianship of Ann S., supra, 45 Cal.4th at pp. 1126-1127, italics omitted; see Coffman, supra, 176 Cal.App.4th at p. 1145.) This, the Collectives have not done. Based upon FCC, Dukes, and Martinet, the exclusion of group 3 by a grandfather provision does not violate equal protection under the rational basis test. Even if we assume for the purpose of argument that unfairness to group 2 somehow implicates equal protection concerns — and we expressly refuse to so find, as discussed above — the Collectives have not demonstrated that this class, or a single collective that would fit within this class, even exists. Approximately 187 medical marijuana entities in existence prior to September 14, 2007, registered under the ICO. Based upon the record before us, we find the existence of group 2, or even a single collective that would fit within group 2, to be no more than a theoretical possibility. Such a theoretical possibility of unconstitutional effect, as discussed earlier, is insufficient to demonstrate an equal protection violation based on a facial challenge. (Zuckerman, supra, 29 Cal.4th at p. 39; Arcadia Development, supra, 197 Cal.App.4th at p. 1535.)
Finally, we address one other issue related to the equal protection challenge. As discussed earlier, the ICO, by its terms, applied to "medical marijuana dispensar[ies]," as defined therein, while the Ordinance, by its terms, applies to " `medical marijuana collective[s],' " as defined therein (boldface & capitalization omitted). Thus, the ICO required dispensaries to register while the Ordinance requires collectives to have previously registered
First, it appears that no litigant raised this specific argument in the court below and it is therefore waived. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [54 Cal.Rptr.2d 27].) We have reviewed the various points and authorities submitted to the trial court on constitutional issues relevant to the request for preliminary injunction and there is no mention, that we could find, of an equal protection violation based on this language discrepancy between the ICO and the Ordinance. That the parties below never raised it is supported by the fact that the trial court never mentions this issue in its opinion. In its opinion, the trial court routinely refers to "collectives" that registered under the ICO and "collectives" that did not. The trial court does not discuss the incongruous language of the two ordinances or whether that incongruity is material from an equal protection standpoint.
Second, the full extent of this equal protection argument by Melrose et al., insofar as they raise it in their brief to this court, is as described above. Though Melrose et al. repeat the argument in their brief, they do not expand upon or further analyze it in any material way. Nor do they support the argument with any specific citations to case authority. Such an argument, made only in conclusory form, may also be treated as waived. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [21 Cal.Rptr.2d 834].)
Third, we find this argument unpersuasive on the merits given the extremely broad definition of "dispensary" contained in the ICO: "[Medical marijuana dispensary] means any use, facility or location, including but not limited to a retail store, office building, or structure that distributes, transmits, gives, dispenses, facilitates or otherwise provides marijuana in any manner, in accordance with [s]tate law, in particular, California Health and Safety Code [s]ections 11362.5 through 11362.83, inclusive." Given the above definition, any collective, as later defined by the Ordinance, in existence at the time of the ICO, would or reasonably should have believed itself to be a "dispensary" subject to the registration requirements of the ICO. The ICO's definition of "dispensary" is simply too broad to conclude otherwise. This, of course, is borne out by the significant number of ICO registrants whose names alone either expressly or impliedly suggest collective associations. Therefore, we find any discrepancy between the two ordinances to be immaterial and thus insufficient to raise equal protection concerns.
Additionally, the trial court, as mentioned above, did not find that any individual litigant, eligible to register under the ICO, chose not to because it
Accordingly, we find no violation of equal protection by the Ordinance.
The trial court found two portions of the Ordinance to be preempted by the MMPA: (1) section 45.19.6.9, which makes any violation of the Ordinance a misdemeanor and (2) section 45.19.6.10, which "sunsets" the Ordinance two years after its effective date and requires all collectives to cease operation immediately if the Ordinance is not extended. With respect to the Ordinance's criminal enforcement provision, the trial court found the MMPA and the Ordinance contradictory because the MMPA prohibited criminal prosecution for the collective cultivation of medical marijuana while the Ordinance criminalized the same conduct. With respect to the sunset provision, the trial court found the MMPA and the Ordinance contradictory since a ban of all collectives — which would occur if the Ordinance were not extended — would prohibit what the MMPA allowed.
Local legislation enters an area that is "fully occupied" by state law when the Legislature has either (1) expressly manifested its intent to fully occupy the area or (2) impliedly done so. (Sherwin-Williams, supra, 4 Cal.4th at p. 898.) When evaluating the possibility of implied preemption by occupation, courts look at whether one of three possible indicia exists: " `(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.' [Citations.]" (People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485; accord, American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1252 [23 Cal.Rptr.3d 453, 104 P.3d 813]; see Sherwin-Williams, supra, 4 Cal.4th at p. 898.)
In its decision, the trial court found that the Ordinance as a whole was not preempted because it entered an area fully occupied — either expressly or impliedly — by the CUA or the MMPA. The trial court did not expressly address whether the Ordinance was duplicative of either the CUA or the MMPA, or whether the Ordinance contradicted the CUA. The trial court's only finding of preemption was that the two specific provisions of the Ordinance mentioned above contradicted the MMPA.
The case law of preemption is, at times, not altogether clear. The parties, in their briefs, each use language from the case law favorable to their respective
We agree with the court below that neither the CUA nor the MMPA preempts the Ordinance because the Ordinance enters an area that either expressly or impliedly has been fully occupied by state law. In this regard, it is crucial to remember that the Ordinance, through its various provisions, regulates only "medical marijuana collective[s]," which it defines as associations of four or more qualified patients, persons with identification cards, or primary caregivers, who collectively or cooperatively associate to cultivate medical marijuana as allowed by the CUA and the MMPA. (§ 45.19.6.1, subd. B., boldface & capitalization omitted.) Thus, the Ordinance attempts to regulate neither the individual use or cultivation of medical marijuana nor collective cultivation by less than four persons.
We turn first to the issue of express or implied preemption of the Ordinance by the CUA.
Division Two of this court recently, and succinctly, summarized the extremely limited scope of the CUA: "The nature of the right to use marijuana created by the CUA has been examined in several California court
Accordingly, we find no evidence of express or implied preemption by occupation of the Ordinance by the CUA. (See Kruse, supra, 177 Cal.App.4th at p. 1173 [temporary local moratorium on medical marijuana dispensaries not preempted by CUA]; People v. Urziceanu (2005) 132 Cal.App.4th 747, 769 [33 Cal.Rptr.3d 859] [the CUA did not contemplate the collective cultivation or distribution of medical marijuana].)
Next, we address express and implied preemption of the Ordinance by the MMPA.
We believe that this change to the MMPA, though it postdates both the Ordinance and the trial court's enjoining of it, remains relevant to our decision. Prior to the amendment of Health and Safety Code section 11362.83, the issue of regulating medical marijuana collectives or dispensaries through local civil and criminal ordinances had been raised in various appellate decisions. (E.g., Hill, supra, 192 Cal.App.4th at pp. 866-870; Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 754 [115 Cal.Rptr.3d 89]; Kruse, supra, 177 Cal.App.4th at pp. 1167-1177; City of Corona v. Naulls, supra, 166 Cal.App.4th at p. 425.) When enacting new legislation or amendments to existing statutes, the Legislature is presumed to be aware of relevant appellate court decisions. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155 [278 Cal.Rptr. 614, 805 P.2d 873].) (Harris), superseded by statute on another ground as stated in Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 672 [94 Cal.Rptr.3d 685, 208 P.3d 623].) The amendment to section 11362.83 expressly allowing local civil and criminal enforcement is completely consistent with the broad language of section 11362.83 as originally enacted and occurred after the decisions referenced above. We find, therefore, that the amendment was the Legislature's response to these decisions, the purpose of which was to expressly clarify what the statute had always implicitly allowed. (See Harris, at p. 1156 ["In the area of statutory construction, an examination of what the Legislature has done (as opposed to what it has left undone) is generally the more fruitful inquiry."]; Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 735 [180 Cal.Rptr. 496, 640 P.2d 115] [adding statutory language which is consistent with earlier case law construing the statute amounts to "legislative endorsement" of that construction].)
Under these circumstances, it is clear that the MMPA does not expressly or impliedly preempt the Ordinance by occupying the entire field of medical marijuana use. (See Hill, supra, 192 Cal.App.4th at p. 868 [county requirements of business license, approved conditional use permit, and 1,000-foot distance from libraries and schools for marijuana dispensaries not preempted by MMPA]; Kruse, supra, 177 Cal.App.4th at pp. 1175-1176 [temporary local moratorium on marijuana dispensaries not preempted by MMPA].)
The Ordinance's requirements apply only to medical marijuana collectives of four or more persons. The CUA does not regulate or even mention medical marijuana collectives. A portion of the MMPA does provide limited criminal immunity to qualified patients, identification cardholders, and primary caregivers who collectively cultivate marijuana, but the MMPA does not specifically define what a collective is. (See Health & Saf. Code, § 11362.775.) Read as a whole, it also addresses additional medical marijuana issues unrelated to collective cultivation. The Ordinance, therefore, is not coextensive with either the CUA or the MMPA. Accordingly, it is not preempted by duplication. (See Sherwin-Williams, supra, 4 Cal.4th at p. 897.)
We next discuss preemption by contradiction.
Since the CUA does not mention, let alone regulate medical marijuana collectives, and since the requirements of the Ordinance apply only to medical marijuana collectives as defined therein, the Ordinance does not contradict the CUA.
The trial court found the criminal enforcement provisions of the Ordinance preempted because the MMPA prohibits criminal sanctions for the collective cultivation of medical marijuana while the Ordinance criminally punishes that very conduct. Similarly, the trial court found the sunset provision of the Ordinance preempted since — were the Ordinance to sunset — it would result in a ban of medical marijuana collectives, entities expressly allowed by the MMPA. Based upon our de novo review, we conclude that the trial court erred in these findings.
We first address preemption of the criminal enforcement provisions. Again, the MMPA in its original form expressly provided that "[n]othing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article." (Stats. 2003, ch. 875, § 2, p. 6424 [Health & Saf. Code, former § 11362.83].) Again, this language is certainly broad enough to include local criminal laws consistent with the MMPA. Furthermore, its 2012 amendment expressly allows both (1) local ordinances that regulate "the location, operation, or establishment" of medical marijuana collectives and (2) criminal enforcement of those ordinances. (§ 11362.83, subds. (a) & (b).) As discussed earlier, this further corroborates that the MMPA, even in its original form, contemplates and allows for criminal enforcement of local regulations. (See Harris, supra, 52 Cal.3d at p. 1156.)
Additionally, effective January 1, 2011, the Legislature added Health and Safety Code section 11362.768 to the statutory provisions containing the MMPA. Subdivision (b) of this section prohibits a "medical marijuana cooperative, collective, dispensary, operator, establishment, or provider who possesses, cultivates, or distributes medical marijuana" from locating within 600 feet of a school. Significantly, subdivision (f) of this section further reinforces the legitimacy of local regulation by also providing that "[n]othing in this section shall prohibit a city, county, or city and county from adopting ordinances or policies that further restrict the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider."
Contrary to the trial court's conclusion, the Ordinance does not punish the collective cultivation of medical marijuana. Simply put, the Ordinance punishes violations of local law that regulate collective cultivation, laws that were always implicitly and are now expressly permitted by the MMPA. The Ordinance does not purport to prohibit or in any way restrict the availability of the limited defense created by the MMPA to prosecutions against qualified patients, identification cardholders, primary caregivers, and members of those groups who collectively cultivate medical marijuana, for the enumerated Health and Safety Code sections. And, finally, the Ordinance's criminal sanctions are potentially applicable only to collectives of four or more persons. By its own terms, the Ordinance's sanctions are completely inapplicable to collectives of three or less. Under these circumstances, it cannot be said that the Ordinance's criminal sanctions are "inimical to" and therefore in
Next, we turn to the Ordinance's sunset clause.
The City first argues that because the sunset clause has not yet taken effect and may not take effect, the issue of preemption of this provision is not ripe for decision. Ordinarily we would agree with this position. The timing of this decision, however, compels us to reach the issue in order to avoid additional litigation and expenditure of judicial resources. Currently, the TUO abrogates the sunset provision, which would have gone into effect June 6, 2012. Since we reverse the trial court's decision, however, the TUO, by its terms, is essentially repealed and the Ordinance, in its original form, is again effective. This means the sunset provision will be triggered upon this decision becoming final. In light of this, we think it appropriate to reach a decision on the merits of the sunset clause so that all parties know where they stand going forward.
The trial court found that the "blanket ban on all collectives" that would be caused if the sunset clause were triggered would "prohibit what the statute commands" and thus contradict the MMPA. First of all, this misconstrues the Ordinance's sunset clause. Triggering of the sunset clause does not create a blanket prohibition of all collectives, but only of those collectives comprised of four or more qualified persons. Collectives comprised of three or less persons could continue to operate since they are outside the scope of the Ordinance.
Further, the trial court's ruling misconstrues what the MMPA, by its express terms, actually does. The MMPA does not differ in kind from the CUA. As stated earlier, although it further implements and expands upon the
Section 45.19.6.7 provides that any existing collective not in compliance with the requirements of the Ordinance must cease operation until such time, if any, that it comes into compliance. On May 4, 2010, the City sent letters to collectives that had not registered under the ICO and who were therefore ineligible to register under the Ordinance. The letters advised these collectives of the Ordinance's June 7, 2010 effective date, that they could not comply with the Ordinance and, therefore, that they must cease operation immediately. The letter also advised the collectives that continued operation might subject them to criminal misdemeanor penalties, civil penalties, injunctive relief, or revocation of any certificate of occupancy. In its opening paragraph, the letter characterized itself as a "courtesy notice" while the concluding sentence advised the collective to consult its attorney if it had any questions about the Ordinance.
The trial court found that the MMPA creates a statutory right to cultivate marijuana collectively for medical purposes. It further found that section 45.19.6.7, in conjunction with the May 4 letter, abrogates that right without a hearing or any other procedural protections. For that reason, the trial court concluded, the Ordinance violates procedural due process as required by the California Constitution.
As the above cases make clear, California due process protection, although more expansive than its federal counterpart, still requires the existence of some statutory benefit or entitlement before it is triggered. We find no such benefit or entitlement in this case which is in any way affected by the Ordinance. As discussed above, the MMPA does not create a right collectively to cultivate medical marijuana. Although the CUA seems to encourage the Legislature to create such a right (Health & Saf. Code, § 11362.5, subd. (b)(1)(C)), it chose not to when enacting the MMPA and instead simply expanded the immunities initially created by the CUA to include additional state offenses and additional conduct that is collective or cooperative in nature. The MMPA creates no right or benefit, other than the right of certain specified persons to be free from prosecution for certain specified state offenses based upon certain specified conduct. The Ordinance in no way affects the availability of this limited immunity and thus does not abrogate any right or benefit created by the MMPA.
Additionally, Ordinance section 45.19.6.7 does not, by any of its terms, create some type of summary or constitutionally deficient procedure for its enforcement. Like the balance of the Ordinance, section 45.19.6.7 relies instead on section 45.19.6.9 for enforcement. Section 45.19.6.9 provides: "Each and every violation of this article shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by [s]ection 11.00 of this [c]ode. Additionally, as a nuisance per se, any violation of this article shall be subject to injunctive relief, revocation of the collective's registration, revocation of the certificate of occupancy for the location, disgorgement and payment to the City of any and all monies unlawfully obtained, costs of abatement, costs of investigation, attorney fees, and any other relief or remedy available at law or equity. The City may also pursue any and all remedies and actions available and applicable under local and state laws for any violations committed by the collective and persons related or associated with the collective."
The Supreme Court disagreed. The court observed that under the applicable statutory scheme, the Director had no authority to adjudicate formally whether a project is or is not a public work or, therefore, whether a contractor has or has not underpaid workers in violation of the prevailing wage law. (Lusardi, supra, 1 Cal.4th at p. 990.) The Director had only the authority to file a legal action alleging those facts so that a court could reach the ultimate decision. (Ibid.) The court characterized the Director's authority as "purely prosecutorial." (Ibid.) It further observed: "Thus, what the Director and his designees did in this case was to notify the [hospital] District and Lusardi that, in the view of the authorities, the project was a public work and the prevailing wage law applied. There is no statute requiring the Director to so notify an awarding body or contractor; apparently the Director did so in the hope that voluntary compliance could avoid the necessity to bring an action under [the prevailing wage law]. But before the Director could bring a court action to recover the amounts due under [the prevailing wage law], Lusardi sued the Director, claiming its due process rights were violated." (Lusardi, supra, 1 Cal.4th at p. 991.)
From our perspective, there is no principled way to distinguish Lusardi from the immediate case. The May 4 letter, in our opinion, is nothing more than notification to the collectives involved that the City Attorney believed the collectives were or shortly would be in violation of the Ordinance. By itself, such a letter cannot enforce the Ordinance or deprive any collective of any statutory benefit. To enforce the Ordinance, the City is required to file either a civil or criminal lawsuit which, of course, will trigger the full adversarial protections provided any litigant in any court action.
Thus, we find no due process violation by the Ordinance.
Section 45.19.6.4 of the Ordinance describes the record-keeping obligations of City-permitted collectives. It requires collectives to maintain, for a period of five years, various records, including the "full name, address and telephone number(s) of all patient members to whom the collective provides medical marijuana, a copy of a government-issued identification card for all patient members, and a copy of every attending physician's or doctor's recommendation or patient identification card." It additionally requires that all records, including the ones described particularly above, be made available by the collective to the Los Angeles Police Department "upon request." As mentioned earlier, however, section 45.19.6.4 also specifically exempts from this disclosure requirement "private medical records" of collective members. The police can demand such records only pursuant to an otherwise lawful search warrant, subpoena, or court order.
The trial court found that by allowing the police to obtain the general contact information of collective members (name, address, and telephone number) upon request and without any additional procedural safeguards, the Ordinance violates the state constitutional right to privacy.
In terms of the first element, legally protected privacy interests are generally of two categories: (1) interests in preventing the disclosure or misuse of sensitive information (informational privacy) and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (autonomy privacy). (Hill v. NCAA, supra, 7 Cal.4th at p. 35.) Informational privacy is the core value furthered by the Constitution's privacy clause. (White v. Davis (1975) 13 Cal.3d 757, 774 [120 Cal.Rptr. 94, 533 P.2d 222]; accord, Hill v. NCAA, at p. 35.) Privacy interests are not absolute and must be assessed separately and in context. (Hill v. NCAA, supra, at p. 35.) The immediate case involves only the issue of informational privacy.
Because complete privacy does not exist in the modern world, actionable invasions of privacy, the third element of a privacy violation, "must be
Insofar as defenses are concerned, invasion of a privacy interest is not a constitutional violation if justified by a legitimate competing interest. (Hill v. NCAA, supra, 7 Cal.4th at p. 38.) "Legitimate interests derive from the legally authorized and socially beneficial activities of government and private entities." (Ibid.) Conduct which allegedly violates the right to privacy must be evaluated based upon the extent to which it furthers a legitimate and important competing interest. (Ibid.)
Whether a legally recognized privacy interest exists is a question of law subject to de novo review. (See Hill v. NCAA, supra, 7 Cal.4th at p. 40.) Whether the plaintiff has a reasonable expectation of privacy under the circumstances and whether a defendant's conduct is a sufficiently serious invasion of the right to find a violation are mixed questions of law and fact. (Ibid.) If undisputed material facts show no reasonable expectation of privacy or only an insubstantial impact on privacy interests, these issues may also be decided as questions of law. (Ibid.)
This case raises the issue of who is asserting the privacy rights of whom: (1) whether collectives are asserting their own privacy rights; (2) whether collectives are asserting the privacy rights of their individual, human, members; or (3) whether individual members are asserting their own privacy rights. While it is beyond dispute that article I, section 1 of the California Constitution protects the privacy of people, it is not entirely clear to what extent legal entities other than people (1) may assert their own privacy rights based upon this provision or upon other sources or (2) may have standing to assert the privacy rights of people who are their members or with whom they are otherwise involved. (See, e.g., Connecticut Indemnity Co. v. Superior Court (2000) 23 Cal.4th 807, 817 [98 Cal.Rptr.2d 221, 3 P.3d 868] [court assumes but does not decide that corporate insureds have privacy rights which may be asserted by their corporate insurer]; Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 797 [195 Cal.Rptr. 393] [although corporation not protected by art. I, § 1 of the state Constitution, it may still have limited right to privacy dependent upon its "nexus" with human beings and "the context in which the controversy arises"]; see also Hecht, Solberg, Robinson,
We need not decide these broad issues of entity privacy or the extent to which collective or cooperative entities may assert the privacy rights of their human members. We assume, without deciding, that both the collective and individual respondents in this case have certain privacy expectations in the records subject to disclosure under the Ordinance. Notwithstanding this assumption, the Ordinance does not violate any right to privacy. To the extent the respondents as collectives are asserting their own privacy rights, we find no issue with either the recordkeeping or disclosure requirements of the Ordinance given the heavily regulated area in which the collectives operate. Whether analyzed as creating an unreasonable expectation of privacy or an invasion of a reasonable expectation of privacy justified by a legitimate competing state interest, such entities are subject to greater privacy intrusions than would be allowed in the context of individuals or more ordinary businesses. Insofar as collectives are asserting the privacy rights of their individual members or, in the case of the Anderson et al. respondents, asserting their own individual privacy rights, we also find no invasion of privacy, based largely on similar analysis. Further, because the material facts are not in dispute, we address these issues essentially as questions of law subject to de novo review. (See Hill v. NCAA, supra, 7 Cal.4th at p. 40.)
The record below supports a finding that a number of so-called medical marijuana collectives are collectives in name only: rather than distribute marijuana to collective members for medical purposes, they instead sell marijuana to third parties for profit. The record also shows that the Los Angeles Police Department is forced to expend scarce resources to combat this criminal activity. Under these circumstances, it would be entirely irrational to accord marijuana collectives — as entities — greater privacy rights than pharmacies involved in the distribution and use of traditional prescription drugs. We find that any expectation of privacy by a collective in the limited, and nonintimate, information sought by the Ordinance to be unreasonable. Alternatively, and based on the same facts described above, we find any invasion of a reasonable expectation of privacy to be justified by a legitimate and competing state interest.
For similar reasons, we reach the same result with respect to any assertion of privacy rights by individual collective members or by collectives on behalf of their individual members. First, the information sought is extremely limited and nonintimate in nature: the name, address, and phone number of any given collective member. A member's medical records — which would contain significantly more personal and intimate information — cannot be obtained without a lawful warrant, subpoena, or court order.
Furthermore, statutes already allow the disclosure of patient contact information by traditional health care providers upon demand. Absent a formal written request by a patient to the contrary, ordinary health care providers may already release, upon request, contact information and a description of the reason for treatment, the general nature of the condition requiring treatment, and the general condition of the patient. (Civ. Code, § 56.16; see
In short, even where the privacy rights of individual collective members are concerned, the information sought is extremely limited and nonintimate in nature and the information — plus more — is typically already subject to disclosure in the context of more traditional health care treatments and providers. Again, for the same reasons as discussed above in connection with the rights of collectives as entities, we see no reason to give medical marijuana users greater privacy rights than patients utilizing more traditional health care providers and more traditional prescription drugs. Indeed, given the continued illegal nature of marijuana under most circumstances, even more substantial invasions of privacy would likely be justified under the current state of the law. Whether analyzed as an unreasonable expectation of privacy or a reasonably justified invasion of a reasonable expectation of privacy, we find no violation of the Collectives' members' individual privacy rights.
In its order, the trial court relied on Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669 [156 Cal.Rptr. 55], while Melrose et al., in their brief to this court, rely heavily on Bearman v. Superior Court (2004) 117 Cal.App.4th 463 [11 Cal.Rptr.3d 644]. We find neither case controlling in the immediate circumstances. Both cases dealt with the release of patients' actual medical records, not just contact information. (Gherardini, supra, at p. 673; Bearman, supra, at p. 466.) That situation is not presented by the immediate case.
Appellant is awarded costs on appeal.
Bigelow, P. J., and Rubin, J., concurred.
