UPDATE August 2012 – The Pack decision has been invalidated by the California Supreme Court, which declined to give it a hearing without ruling on the merits of the case. Although Pack is no longer legal precedent, the question of federal preemption is not clearly settled, and could be resurrected in future court cases.
Oct 4, 2011. In a ruling with far-reaching implications, an appellate court struck down a Long Beach medical marijuana dispensary licensing ordinance as being contrary to federal law (Pack et al. vs Superior Court of Los Angeles, California 2nd District Court of Appeals, 3rd Division).
Ruling in favor of plaintiffs Ryan Pack and Anthony Gayle, whose collective had been denied a permit under a city-sponsored lottery licensing system, the court held that the Long Beach licensing law was invalid insofar as it positively permitted activities that conflict with the federal Controlled Substances Act.
The court took issue with other appellate rulings, such as Qualified Patients vs. City of Anaheim and San Diego Co vs San Diego NORML, which held that California medical marijuana statutes don’t conflict with federal law because they only decriminalize certain conduct under state law. The Pack court distinguished between statutes that merely decriminalize federally illegal activities, and those that actively permit or license activities that constitute an obstacle to enforcement of federal law.
The court upheld certain kinds of rules and regulations, such as those restricting hours and locations, as valid because they present no conflict with federal law. However, it specifically struck down the city’s licensing scheme, as well as a provision requiring testing of marijuana on the grounds that such testing would be illegal under federal law.
Taken seriously, the Pack ruling would seem to rule out licensing schemes that have already been successfully adopted in other cities, such as Oakland, Los Angeles, and Sacrmamento, as well as proposals for a statewide licensing system similar to that in Colorado. It is unclear whether it might also rule out local taxes and cultivation permits, which have been enacted in many localities.
Because of its far reaching implications, the ruling will be appealed and appears destined for the State Supreme Court.
UPDATE: According to the LA Times, on October 14, LA Superior Court Judge Anthony J. Mohr denied motions from 29 medical marijuana dispensaries that had sought to halt enforcement of the city’s dispensary ordinance. In his ruling, Mohr declined to take into account the Long Beach decision, noting that it conflicts with other state appellate decisions. But he noted that the decision, handed down by a Los Angeles-based appeals court, could have a “profound impact” on the city’s ordinance.
The LA City Council will meet Tuesday, Oct. 18 in closed session to start work on a third version of its controversial ordinance.