August 30, 2010 By Wallin & Klarich

Medical marijuana users and local governments are paying close attention to the ruling in Qualified Patients Association v. City of Anaheim (G040077). This is a case of first impression that is being heard by the Court of Appeal. The issue is whether local governments can enact regulations entirely prohibiting the operation of medical marijuana dispensaries.

California decriminalized medical marijuana in 1996 which is codified in Health & Safety Code Section 11362.5. The California Legislature enacted Senate Bill 420, also known as the Medical Marijuana Program in 2003. SB 420 established guidelines on using and distributing medical marijuana. It also created a state approved voluntary identification card system for patients. The medical marijuana identification cards assisted law enforcement in identifying whether a person legally or illegally possessed marijuana.

The Anaheim ordinance made it unlawful for any person or entity to own, manage, conduct or operate a medical marijuana dispensary within the city. The ordinance was the first law to give a definition to a medical marijuana dispensary. It states that a medical marijuana dispensary is any facility or location where medical marijuana is distributed or made available by or to three or more qualified patients, person with identification cards or primary caregivers. Violating the ordinance may result in an arrest and prosecution for a misdemeanor offense.

The City of Anaheim was victorious in the first round where the lower courts ruled that Anaheim’s ordinance was not in violation of any laws. The Qualified Patients Association appealed, arguing that the ordinance is preempted by state law in that it frustrates the purpose and intent of state law by restricting and limiting the availability and distribution of medical marijuana to qualified persons. They also argued that Proposition 215 and the Medical Marijuana Program should overrule the city’s ordinance. The Qualified Patients Association also contended that the ordinance created a new criminal penalty in an area of law that already has established state penalties.

Anaheim defended the law by arguing it is not preempted by the medical marijuana laws. Specifically, Prop. 215 is limited to decriminalizing the use and cultivation of medical marijuana. The city’s ordinance does not penalize the use and cultivation of medical marijuana. The city’s argument is that the ordinance only penalizes having a medical marijuana dispensary. Another argument was that the California medical marijuana laws are preempted by the federal Controlled Substances Act, which makes the use, distribution and cultivation of marijuana illegal. A ruling is expected from the court shortly.

If you or a loved one is facing a marijuana charge, it is important that you speak with an experienced criminal defense marijuana attorney. At Wallin & Klarich, our Orange County marijuana defense attorneys have over 30 years of experience. We will aggressively fight to get you the best possible result in your case. Contact us today at (888) 280-6839 or contact us through our website at We will be there when you call. We will also update you with the court’s decision.

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