The issue in this case is whether California's medical marijuana statutes preempt a local ban on facilities that distribute medical marijuana. We conclude they do not.
Both federal and California laws generally prohibit the use, possession, cultivation, transportation, and furnishing of marijuana. However, California statutes, the Compassionate Use Act of 1996 (CUA; Health & Saf. Code, § 11362.5,
The California Constitution recognizes the authority of cities and counties to make and enforce, within their borders, "all local, police, sanitary, and
In the exercise of its inherent land use power, the City of Riverside (City) has declared, by zoning ordinances, that a "[m]edical marijuana dispensary" (boldface omitted) — "[a] facility where marijuana is made available for medical purposes in accordance with" the CUA (Riverside Mun. Code (RMC), § 19.910.140)
Invoking these provisions, the City brought a nuisance action against a facility operated by defendants. The trial court issued a preliminary injunction against the distribution of marijuana from the facility. The Court of Appeal affirmed the injunctive order. Challenging the injunction, defendants urge, as they did below, that the City's total ban on facilities that cultivate and distribute medical marijuana in compliance with the CUA and the MMP is invalid. Defendants insist the local ban is in conflict with, and thus preempted by, those state statutes.
As we will explain, we disagree. We have consistently maintained that the CUA and the MMP are but incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed. They merely declare that the conduct they describe cannot lead to arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the Health and Safety Code. Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders. We must therefore reject defendants' preemption argument, and must affirm the judgment of the Court of Appeal.
In 2004, the Legislature adopted the MMP. One purpose of this statute was to "[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." (Stats. 2003, ch. 875, § 1(b)(3), pp. 6422, 6423.) Accordingly, the MMP provides, among other things, that "[q]ualified patients ... and the designated primary caregivers of qualified patients ..., 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 11357 [(possession)], 11358 [(cultivation, harvesting, and processing)], 11359 [(possession for sale)], 11360 [(transportation, sale, furnishing, or administration)], 11366 [(maintenance of place for purpose of unlawful sale, use, or furnishing)], 11366.5 [(making place available for
Since 2009, defendant Inland Empire Patients Health and Wellness Center, Inc. (Inland Empire), has operated a medical marijuana distribution facility in Riverside. Defendants Meneleo Carlos and Filomena Carlos (the Carloses) are the owners and lessors of the Riverside property on which Inland Empire's facility is located. Their mortgage on the property is financed by defendant East West Bancorp, Inc. (Bancorp). Defendant Lanny Swerdlow is the lessee of the property, and defendant Angel City West, Inc. (Angel), provides the property with management services. Swerdlow is also a registered nurse and the manager of an immediately adjacent medical clinic doing business as THCF Health and Wellness Center (THCF). Though THCF has no direct legal link to Inland Empire, the two facilities are closely associated, and THCF provides referrals to Inland Empire upon patient request. Defendant William Joseph Sump II is a board member of Inland Empire and the general manager of Inland Empire's Riverside facility.
In January 2009, the planning division of Riverside's Community Development Department notified Swerdlow by letter that the definition of "medical marijuana dispensary" in Riverside's zoning ordinances "is an all-encompassing definition, referring to all three types of medical marijuana facilities, a dispensary, a collective and a cooperative," and that, as a consequence, "all three facilities are banned in the City of Riverside." In May 2010, the City filed a complaint against the Carloses, Bancorp, Swerdlow,
Thereafter, the City moved for a preliminary injunction against operation of Inland Empire's facility.
The Court of Appeal affirmed the order. The appellate court agreed with defendants that the City could not assert federal preemption of state law as authority for its total ban on medical marijuana dispensing facilities. However, the court rejected defendants' argument that Riverside's zoning prohibition of such facilities was preempted by state law, the CUA and the MMP. In the Court of Appeal's view, Riverside's provisions do not duplicate or contradict the state statutes concerning medical marijuana, nor do they invade a field expressly or impliedly occupied by those laws.
We granted review. We now conclude the Court of Appeal's judgment must be affirmed.
When they adopted the CUA in 1996, the voters declared their intent "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes" upon a physician's recommendation (§ 11362.5, subd. (b)(1)(A)), "[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction" (id., subd. (b)(1)(B)), and "[t]o encourage 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 the substance (id., subd. (b)(1)(C)).
When it later adopted the MMP, the Legislature declared this statute was intended, among other things, to "[c]larify the scope of the application of the [CUA] and facilitate the prompt identification of qualified [medical marijuana] patients and their designated primary caregivers" in order to protect them from unnecessary arrest and prosecution for marijuana offenses, to "[p]romote uniform and consistent application of the [CUA] among the counties within the state," and to "[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects" (Stats. 2003, ch. 875, § 1(b), pp. 6422, 6423).
Our decisions have stressed the narrow reach of these statutes. Thus, in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920 [70 Cal.Rptr.3d 382,
The Court of Appeal affirmed, and we upheld the Court of Appeal's judgment. We noted that neither the CUA's findings and declarations, nor its substantive provisions, mention employment rights, except in their protection of physicians who recommend medical marijuana to patients.
The employee urged that such rights were implied in the voters' declaration of their intent in the CUA "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes." (§ 11362.5, subd. (b)(1)(A).) We rejected this notion. As we observed, "[pjlaintiff would read [this declaration] as if it created a broad right to use marijuana without hindrance or inconvenience, enforceable against private parties such as employers." (Ross, supra, 42 Cal.4th 920, 928.) On the contrary, we stated, "the only `right' to obtain and use marijuana created by the [CUA] is the right of `a patient, or ... a patient's primary caregiver, [to] possess[] or cultivatef] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician' without thereby becoming subject to punishment under sections 11357 and 11358 of the Health and Safety Code. [Citation.]" (Ross, supra, at p. 929.)
In reaching this conclusion, we emphasized the CUA's "modest objectives" (Ross, supra, 42 Cal.4th 920, 930), pointing out that the initiative's proponents had "consistently described the proposed measure to the voters as motivated" only "by the desire to create a narrow exception to the criminal law" for medical marijuana possession and use under the circumstances specified. (Id. , at p. 929.) We endorsed the observation that "`the proponents' ballot arguments reveal a delicate tightrope walk designed to induce voter approval, which we would upset were we to stretch the proposition's limited immunity to cover that which its language does not.'" (Id. , at p. 930, quoting People v. Galambos (2002) 104 Cal.App.4th 1147, 1152 [128 Cal.Rptr.2d 844].)
Finding insufficient evidence on the point, the trial court declined to provide a "primary caregiver" instruction, and the defendant was convicted as charged. The Court of Appeal reversed the convictions. The appellate court concluded that evidence the defendant grew medical marijuana for qualified patients, counseled them on how to grow and use medical marijuana, and occasionally took them to medical appointments was sufficient to warrant a "primary caregiver" instruction. (Mentch, supra, 45 Cal.4th 274, 281-282.)
We reversed the Court of Appeal. We first examined the CUA's definition of a "primary caregiver" as "the individual designated by [a qualified medical marijuana patient] who has consistently assumed responsibility for the housing, health, or safety of that person." (§ 11362.5, subd. (e), italics added.) This language, we reasoned, "impl[ied]" an ongoing "caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need." (Mentch, supra, 45 Cal.4th 274, 286.) Further, we observed, the ballot arguments for Proposition 215, which became the CUA, suggested that a patient would be primarily responsible for noncommercially supplying his or her own medical marijuana, but that a "primary caregiver" should be allowed to act for a seriously or terminally afflicted patient who was too ill or bedridden to do so. Accordingly, we held that a person cannot establish "primary caregiver" status simply by showing he or she was chosen and used by a qualified patient to assist the patient in obtaining and ingesting medical marijuana. Instead, we concluded, a "primary caregiver" must prove, at a minimum, that he or she consistently provided care in such areas as housing, health, and safety, independent of any help with medical marijuana, and undertook such general caregiving duties before assuming responsibility for assisting with medical marijuana.
Alternatively, the defendant urged that the MMP, specifically section 11362.765, provides a defense against charges of cultivation and possession
Recognizing the limited reach of the CUA and the MMP, Court of Appeal decisions have consistently held that these statutes, by exempting certain medical marijuana activities — including the collective cultivation and distribution of medical marijuana under specified circumstances — from the sanctions otherwise imposed by particular state antimarijuana laws, do not preempt local land use regulation of medical marijuana collectives, cooperatives, and dispensaries, even when such regulation amounts to a total ban on such facilities within a local jurisdiction's borders.
Thus, in Kruse, supra, 111 Cal.App.4th 1153, the defendant's application for a business license to operate a medical marijuana dispensary was denied by Claremont's city manager in September 2006. The grounds cited were that such a facility was not a permitted use under Claremont's land use and development code. The denial letter advised the defendant he could appeal to the city council, and could also seek an amendment to the code. He did not seek such an amendment, and he began operating his facility on the day his permit was denied. Meanwhile, he filed an administrative appeal. Therein he urged that a code amendment was unnecessary because state law (i.e., the CUA and the MMP) rendered "`[a] medical marijuana caregivers collective... a legal but not conforming business anywhere in the state where it is not regulated.'" (Kruse, supra, at p. 1160.) He further alleged that, before beginning operations, he had given the city notice and opportunity to adopt such regulations if it chose.
In late September 2006, while the administrative appeal was pending, the city adopted a 45-day moratorium on the issuance of any permit, variance, license, or other entitlement for operation of a medical marijuana dispensary within its boundaries. The city manager promptly advised the defendant that adoption of the moratorium rendered his appeal moot. Thereafter, the city extended the moratorium several times, ultimately for a period ending on September 10, 2008.
Defendant continued to operate his facility. After he ignored two cease and desist orders, he was cited, tried, convicted, and fined for operating without a business license in violation of city ordinances. Thereafter, he continued to operate despite the issuance of yet another cease and desist order and a succession of administrative citations. Accordingly, in January 2007, the city sued for injunctive relief to abate a public nuisance. The trial court issued a temporary restraining order, a preliminary injunction, and ultimately, in May
On appeal, the defendant urged, inter alia, that the CUA and the MMP preempted the city's moratorium on medical marijuana dispensaries and precluded the city from denying permission to operate such a facility. The Court of Appeal rejected this and the defendant's other claims and affirmed the judgment.
On the issue of preemption, the appellate court first found no express conflict between the state medical marijuana statutes and the city's action. By their terms, the Court of Appeal observed, the CUA and the MMP do no more than exempt specific groups and specific conduct from liability under particular criminal statutes.
Second, the Court of Appeal concluded, there was no implied preemption under either state statute. The court reasoned as follows: Neither provision addresses, much less covers, the areas of zoning, land use planning, and business licensing. The city's moratorium ordinance was not "inimical" to the state statutes, in that it did not conflict with those laws by requiring what they forbid or prohibiting what they require. Nor does the CUA or the MMP impose a comprehensive regulatory scheme "demonstrating that the availability of medical marijuana is a matter of `statewide concern,' thereby preempting local zoning and business licensing laws." (Kruse, supra, 177 Cal.App.4th 1153, 1175.) In particular, the CUA's statement of intent "`[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes'" (Kruse, at p. 1175) does not demonstrate a matter of preemptive statewide concern, for that declaration by the voters "[did] not create `a broad right to use marijuana without hindrance or inconvenience' [citation], or to dispense marijuana without regard to local zoning and business licensing laws" (ibid.). Additionally, there is no partial state coverage of medical marijuana in terms indicating clearly that a paramount state concern will not tolerate further or additional local action. Indeed, the CUA expressly states that it does not preclude legislation prohibiting conduct that endangers others, and the MMP explicitly provides that it does not prevent a local jurisdiction from adopting and enforcing laws that are consistent with its provisions.
Though it did not involve a complete moratorium or ban, the Court of Appeal in County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861 [121 Cal.Rptr.3d 722] (Hill) similarly concluded that the CUA and the MMP do not preempt a local jurisdiction from applying its zoning and business licensing powers to regulate medical marijuana dispensaries. In particular, the Hill court observed, the "collective cultivation" provision of the MMP, section 11362.775, "does not confer on qualified patients and their caregivers the unfettered right to cultivate or dispense marijuana anywhere they choose." (Hill, supra, at p. 869.)
The county ordinance at issue in Hill placed various restrictions on the establishment and operation of medical marijuana dispensaries: it provided that such a facility could operate in a C-l zone, but it required the operator to obtain a conditional use permit and a business license, and it prohibited the location of a dispensary within 1,000 feet of a school, playground, park, public library, place of worship, childcare facility, or youth facility.
The county brought a nuisance action alleging that the defendants were violating the ordinance by operating a medical marijuana dispensary in an unincorporated area of the county without obtaining a business license, a conditional use permit, and a zoning variance to allow operation within 1,000 feet of a public library. The defendants did not deny they were operating next to a public library without the required authorizations. Instead, they urged that the ordinance's requirements were unconstitutional and preempted by state law. The trial court disagreed. It issued a temporary restraining order and a preliminary injunction against operation of the defendants' facility without the necessary permits. (Hill, supra, 192 Cal.App.4th 861, 865.)
Finally, the Court of Appeal found no merit in the defendants' contention that because section 11362.775 affords qualified collective cultivation projects a limited immunity from nuisance prosecution under the state's "drug den" abatement law, section 11570, the county was precluded from applying its own nuisance laws to enjoin operation of a medical marijuana dispensary in violation of its zoning ordinance. Noting that the immunity provided by section 11362.775 only applies where the state law nuisance prosecution is premised "solely on the basis" of the collective activities described in that section, the Court of Appeal concluded that the MMP "does not prevent the [c]ounty from applying its nuisance laws to [medical marijuana dispensaries] that do not comply with its valid ordinances." (Hill, supra, 192 Cal.App.4th 861, 868.)
As indicated above, the plain language of the CUA and the MMP is limited in scope. It grants specified persons and groups, when engaged in specified conduct, immunity from prosecution under specified state criminal and nuisance laws pertaining to marijuana. (Mentch, supra, 45 Cal.4th 274, 290; Kruse, supra, 111 Cal.App.4th 1153, 1175.) The CUA makes no mention of medical marijuana cooperatives, collectives, or dispensaries. It merely provides that state laws against the possession and cultivation of marijuana shall not apply to a qualified patient, or the patient's designated primary caregiver, who possesses or cultivates marijuana for the patient's personal medical use upon a physician's recommendation. (§ 11362.5, subd. (d).)
The MMP, unlike the CUA, does address, among other things, the collective or cooperative cultivation and distribution of medical marijuana. But the MMP is framed in similarly narrow and modest terms. As pertinent here, it specifies only that qualified patients, identification cardholders, and their designated primary caregivers are exempt from prosecution and conviction under enumerated state antimarijuana laws "solely" on the ground that such persons are engaged in the cooperative or collective cultivation, transportation, and distribution of medical marijuana among themselves. (§ 11362.775.)
The MMP's language no more creates a "broad right" of access to medical marijuana "without hindrance or inconvenience" (Ross, supra, 42 Cal.4th 920, 928) than do the words of the CUA. No provision of the MMP explicitly guarantees the availability of locations where such activities may occur, restricts the broad authority traditionally possessed by local jurisdictions to regulate zoning and land use planning within their borders, or requires local zoning and licensing laws to accommodate the cooperative or collective
The considerations discussed above also largely preclude any determination that the CUA or the MMP impliedly preempts Riverside's effort to "de-zone" facilities that dispense medical marijuana. At the outset, there is no duplication between the state laws, on the one hand, and Riverside's ordinance, on the other, in that the two schemes are coextensive. The CUA and the MMP "decriminalize," for state purposes, specified activities pertaining to medical marijuana, and also provide that the state's antidrug nuisance statute cannot be used to abate or enjoin these activities. On the other hand, the Riverside ordinance finds, for local purposes, that the use of property for certain of those activities does constitute a local nuisance.
Nor do we find an "inimical" contradiction or conflict between the state and local laws, in the sense that it is impossible simultaneously to comply
Further, there appears no attempt by the Legislature to fully occupy the field of medical marijuana regulation as a matter of statewide concern, or to partially occupy this field under circumstances indicating that further local regulation will not be tolerated. On the contrary, as discussed in detail above, the CUA and the MMP take limited steps toward recognizing marijuana as a medicine by exempting particular medical marijuana activities from state laws that would otherwise prohibit them. In furtherance of their provisions, these statutes require local agencies to do certain things, and prohibit them from doing certain others. But the statutory terms describe no comprehensive scheme or system for authorizing, controlling, or regulating the processing and distribution of marijuana for medical purposes, such that no room remains for local action.
The presumption against preemption is additionally supported by the existence of significant local interests that may vary from jurisdiction to jurisdiction. Amici curiae League of California Cities et al. point out that "California's 482 cities and 58 counties are diverse in size, population, and use." As these amici curiae observe, while several California cities and counties allow medical marijuana facilities, it may not be reasonable to expect every community to do so.
For example, these amici curiae point out, "[s]ome communities are predominantly residential and do not have sufficient commercial or industrial space to accommodate" facilities that distribute medical marijuana. Moreover, these facilities deal in a substance which, except for legitimate medical use by a qualified patient under a physician's authorization, is illegal under both federal and state law to possess, use, furnish, or cultivate, yet is widely desired, bought, sold, cultivated, and employed as a recreational drug. Thus, facilities that dispense medical marijuana may pose a danger of increased
Thus, while some counties and cities might consider themselves well suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens. (See, e.g., Great Western Shows, supra, 27 Cal.4th 853, 866-867 [noting, in support of holding that state gun show regulations did not occupy field, so as to preclude Los Angeles County's complete ban of gun shows on county property, that firearms issues likely require different treatment in urban, as opposed to rural, areas].) Under these circumstances, we cannot lightly assume the voters or the Legislature intended to impose a "one size fits all" policy, whereby each and every one of California's diverse counties and cities must allow the use of local land for such purposes.
O'Cornell v. City of Stockton (2007) 41 Cal.4th 1061 [63 Cal.Rptr.3d 67, 162 P.3d 583] (O'Connell), on which defendants rely, is readily distinguishable. There, a state law, the California Uniform Controlled Substances Act (UCSA; § 11000), established a comprehensive scheme for the treatment of such substances, specifying offenses and corresponding penalties in detail. Included among the sanctions provided by the UCSA was a defined program for forfeiture of particular categories of property, including vehicles, used to commit drug crimes. Under this system, vehicles were subject to forfeiture if they had been employed to facilitate the manufacture, possession, or possession for sale of specified felony-level amounts, as explicitly set forth, of
The City of Stockton adopted an ordinance providing for local forfeiture of vehicles used simply to acquire or attempt to acquire any amount of any controlled substance, even if the offense at issue was a low-grade misdemeanor warranting only a $100 fine and no jail time, and was not eligible for forfeiture under the UCSA. Stockton's ordinance permitted forfeiture upon proof by a preponderance of evidence that the vehicle had been used for the described purpose. Forfeited vehicles were to be sold at auction, with net proceeds payable to local law enforcement and prosecutorial agencies.
Under these circumstances, the O'Connell majority concluded, "[t]he comprehensive nature of the UCSA in defining drug crimes and specifying penalties (including forfeiture) is so thorough and detailed as to manifest the Legislature's intent to preclude local regulation. The UCSA accordingly occupies the field of penalizing crimes involving controlled substances, thus impliedly preempting the City's forfeiture ordinance ..." calling for forfeiture of vehicles involved in the acquisition or attempted acquisition of drugs regulated under the UCSA. (O'Connell, supra, 41 Cal.4th 1061, 1071.) The majority explained that "the Legislature's comprehensive enactment of penalties for crimes involving controlled substances, but exclusion from that scheme of any provision for vehicle forfeiture for simple possessory drug offenses, manifests a clear intent to reserve that severe penalty for very serious drug crimes involving the manufacture, sale, or possession for sale of specified amounts of certain controlled substances." (Id. , at p. 1072.)
As indicated above, there is no similar evidence in this case of the Legislature's, intent to preclude local regulation of facilities that dispense medical marijuana. The CUA and the MMP create no all-encompassing scheme for the control and regulation of marijuana for medicinal use. These statutes, both carefully worded, do no more than exempt certain conduct by certain persons from certain state criminal and nuisance laws against the possession, cultivation, transportation, distribution, manufacture, and storage of marijuana.
Cohen, addressing a local ordinance that closely regulated escort services, stated that "[i]f the ordinance ... attempted to prohibit conduct proscribed or permitted by state law[,] either explicitly or implicitly, it would be preempted." (Cohen, supra, 40 Cal.3d 277, 293.) However, Cohen made clear there is no preemption where state law expressly or implicitly allows local regulation. (Id. , at pp. 294-295.) As indicated, the MMP implicitly permits local regulation of medical marijuana facilities.
Similarly, in City of Torrance, supra, 30 Cal.3d 516, a state statute promoting the local community care of mental patients specifically provided that local zoning rules or use permit denials could not be used to exclude psychiatric care facilities from areas in which hospitals or nursing homes were otherwise allowed. By contrast, the MMP imposes no similar limits, express or implicit, on local zoning and permit rules.
Gun show promoters challenged the ordinance, arguing, inter alia, that Penal Code section 171b prohibited the outlawing of guns at gun shows on public property, and thus preempted the ordinance's contrary provisions. We disagreed. As we explained, section 171b "merely exempts gun shows from the state criminal prohibition on possessing guns in public buildings, thereby permitting local government entities to authorize such shows. It does not mandate that local government entities permit such a use...." (Nordyke, supra, 21 Cal.4th 875, 884, first italics added.)
Defendants emphasize that among the stated purposes of the MMP, as originally enacted, are to "[p]romote uniform and consistent application of the [CUA] among the counties within the state" and to "[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects" (Stats. 2003, ch. 875, § 1(b), pp. 6422, 6423). Hence, they insist, the encouragement of medical marijuana dispensaries, under section 11362.775, is a matter of statewide concern, requiring the uniform allowance of such facilities throughout California, and leaving no room for their exclusion by individual local jurisdictions.
We disagree. As previously indicated, though the Legislature stated it intended the MMP to "promote" uniform application of the CUA and to "enhance" access to medical marijuana through collective cultivation, the MMP itself adopts but limited means of addressing these ideals. Aside from requiring local cooperation in the voluntary medical marijuana patient identification card program, the MMP's substantive provisions simply remove specified state law sanctions from certain marijuana activities, including the cooperative or collective cultivation of medical marijuana by qualified patients and their designated caregivers. (Mentch, supra, 45 Cal.4th 274, 290.) The MMP has never expressed or implied any actual limitation on local land use or police power regulation of facilities used for the cultivation and
Defendants acknowledge that the MMP expressly recognizes local authority to "regulate" medical marijuana facilities (§§ 11362.768, subds. (f), (g), 11362.83), but they rely heavily on a passage from our decision in Great Western Shows, supra, 27 Cal.4th 853, for their claim that local governments, even if granted regulatory authority, may not wholly exclude activities that are sanctioned or encouraged by state law. On close examination, however, the premise set forth in Great Western Shows is not applicable here.
In Great Western Shows, we described several federal decisions under the federal Resource Conservation and Recovery Act of 1976 (RCRA; 42 U.S.C. § 6901 et seq.), including Blue Circle Cement, Inc. v. Board of County Commissioners (10th Cir. 1994) 27 F.3d 1499 (Blue Circle Cement), as "stand[ing] broadly for the proposition that when a statute or statutory scheme seeks to promote a certain activity and, at the same time, permits more stringent local regulation of that activity, local regulation cannot be used to completely ban the activity or otherwise frustrate the statute's purpose." (Great Western Shows, supra, 27 Cal.4th at p. 868.)
But there are important distinctions between the RCRA and the California statutes at issue in this case. As explained in Blue Circle Cement, the RCRA "is the comprehensive federal hazardous waste management statute governing the treatment, storage, transportation, and disposal of hazardous wastes which have adverse effects on health and the environment." (Blue Circle Cement, supra, 27 F.3d 1499, 1505.) The federal statute aims "to assist states and localities in the development of improved solid waste management techniques to facilitate resource recovery and conservation." (Ibid.) It "enlists the states and municipalities to participate in a `cooperative effort' with the federal government to develop waste management practices that facilitate the recovery of `valuable materials and energy from solid waste.'" (Id. , at p. 1506.) Under these circumstances, the court in Blue Circle Cement, like other federal courts, concluded that a complete local ban. on the processing, recycling, and disposal of industrial waste, imposed without consideration of specific and legitimate local health and safety concerns, would frustrate the RCRA's overarching purpose to encourage state and local cooperation in furtherance of the efficient treatment, use, and disposal of such material. (Blue Circle Cement, 27 F.3d 1499, 1506-1509 & cases cited.)
As we have noted, the CUA and the MMP are careful and limited forays into the subject of medical marijuana, aimed at striking a delicate balance in an area that remains controversial, and involves sensitivity in federal-state relations. We must take these laws as we find them, and their purposes and provisions are modest. They remove state-level criminal and civil sanctions from specified medical marijuana activities, but they do not establish a comprehensive state system of legalized medical marijuana; or grant a "right" of convenient access to marijuana for medicinal use; or override the zoning,
Of course, nothing prevents future efforts by the Legislature, or by the People, to adopt a different approach. In the meantime, however, we must conclude that Riverside's ordinances are not preempted by state law.
The judgment of the Court of Appeal is affirmed.
Cantil-Sakauye, C. J., Kennard, J., Werdegar, J., Chin, J., Corrigan, J., and Liu, J., concurred.
I join the court's opinion and write separately to clarify the proper test for state preemption of local law.
As the court says, "[L]ocal legislation that conflicts with state law is void. [Citation.] `"A conflict exists if the local legislation `"duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication."'" [Citations.]'" (Maj. opn., ante, at p. 743.)
The court further states: "The `contradictory and inimical' form of preemption does not apply unless the ordinance directly requires what the state statute forbids or prohibits what the state enactment demands. [Citations.] Thus, no inimical conflict will be found where it is reasonably possible to comply with both the state and local laws." (Maj. opn., ante, at p. 743.)
The first sentence of the above statement should not be misunderstood to improperly limit the scope of the preemption inquiry. As the court's opinion makes clear elsewhere, state law may preempt local law when local law prohibits not only what a state statute "demands" but also what the statute permits or authorizes. (See maj. opn., ante, at pp. 758, 760-761, discussing Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 293 [219 Cal.Rptr. 467, 707 P.2d 840] (Cohen); Great Western Shows, Inc. v. County of Los Angeles (2002) 27 Cal.4th 853, 867-868 [118 Cal.Rptr.2d 746, 44 P.3d 120] (Great Western Shows.
In a similar vein, the second sentence of the above statement — "no inimical conflict will be found where it is reasonably possible to comply with both the state and local laws" (maj. opn., ante, at p. 743) — also should not be misunderstood. If state law authorizes or promotes, but does not require or demand, a certain activity, and if local law prohibits the activity, then an entity or individual can comply with both state and local law by not engaging in the activity. But that obviously does not resolve the preemption question.
Accordingly, in federal preemption law, we find a more complete statement of conflict preemption: "`We have found implied conflict pre-emption where it is "impossible for a private party to comply with both state and federal requirements," [citation], or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" "(Sprietsma v. Mercury Maine (2002) 537 U.S. 51, 64-65 [154 L.Ed.2d 466, 123 S.Ct. 518], italics added.) This more complete statement no doubt applies to California law. Local law that prohibits an activity that state law intends to promote is preempted, even though it is possible for a private party to comply with both state and local law by refraining from that activity. (See Great Western Shows, supra, 27 Cal.4th at pp. 867-868; Cohen, supra, 40 Cal.3d at p. 293.)
I do not understand today's opinion to hold otherwise. In this case, defendants argue that the Medical Marijuana Program (MMP) authorizes and intends to promote what the City of Riverside prohibits: the operation of medical marijuana dispensaries. If such legislative authorization were clear, then the ordinance in question might well be preempted. But I agree with my colleagues that although the MMP provides medical marijuana cooperatives and collectives with a limited exemption from state criminal liability, "state law does not `authorize' activities, to the exclusion of local bans, simply by exempting those activities from otherwise applicable state prohibitions." (Maj. opn., ante, at p. 758.) As the court's opinion makes clear, notwithstanding some language in the MMP regarding the promotion of medical marijuana cooperatives and collectives, "the MMP itself adopts but limited means of addressing these ideals. Aside from requiring local cooperation in the voluntary medical marijuana patient identification card program, the MMP's substantive provisions simply remove specified state-law sanctions from certain marijuana activities, including the cooperative or collective cultivation of medical marijuana by qualified patients and their designated caregivers. [Citation.] The MMP has never expressed or implied any actual limitation on local land use or police power regulation of facilities used for the cultivation and distribution of marijuana." (Maj. opn., ante, at p. 759.)
In opposition to the motion, defendant Swerdlow insisted that THCF and Inland Empire were not connected. However, Swerdlow's declaration did not dispute Inland Empire's basic method of operation, as observed by Woolley. Indeed, Swerdlow stated that Inland Empire chose its location, coincidentally adjacent to THCF, "because of its low cost, large size, central location with plenty of parking and [because] it was located in an Industrial Warehouse zone and was not near any schools, churches, etc...."
Here, as we have noted, the MMP is a limited measure, not a comprehensive scheme for the regulation and encouragement of medical marijuana facilities. As in Big Creek Lumber Co., the local ordinance at issue here does not stand in "inimical" conflict with state statutes by making simultaneous compliance impossible. And unlike the FPA at issue in Big Creek Lumber Co., the MMP includes provisions recognizing the regulatory authority of local jurisdictions. For these reasons, nothing we said in Big Creek Lumber Co. persuades us that Riverside's ordinance is preempted.
