Escolar Documentos
Profissional Documentos
Cultura Documentos
: B262874
IN THE
({ourt of
~ppeaI
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION - - - - COUNTY OF LOS ANGELES,
Plaintiff!Appellee,
vs.
ACME SILVER PLACE, a California corporation; LPC
CENTER, INC. dba THE CLINIC, a Califonlia corporation;
YONA MIZRACHI, an individual; EVA FITZHUGH, an
individual; VALERIE G. LUNCEFORD, TRUSTEE OF
THE ESTELLA L. SANDERS TRUST U.T.D. DATED
JULY 12,1990; and DOES 1 THROUGH 10, inclusive,
Defendants/Appellants.
TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................. III
ISSUES PRESENTED ..................................................................................... VII
INTRODUCTION ................................................................................................ 1
A. FACTUAL, PROCEDURAL AND LEGISLATIVE BACKGROUND ........................ 1
B. COUNTY ACTIONS AGAINST THE APPELLANTS ........................................... 2
C. LEGISLATIVE HISTORY AND BACKGROUND ................................................ 3
D. SECTION 2701 TARGETS A DISCRETE AND INSULAR MINORITY CLASS ....... 8
E. MEDICAL MARIJUANA IS ONLY FOR PATIENTS IN CALIFORNIA................... 8
F. STATE COURT DISCRIMINATION TOWARD MEDICAL MARIJUANA
PATIENTS ........................................................................................................... 9
1. Both the DPA and the Unruh Civil Rights Act prohibit municipal laws
that discriminate against the disabled ........................................................ 16
2. California law integrates the protections of rights included in the ADA
and overrides that federal laws definitions of disability and unlawful
drug use ....................................................................................................... 19
D. CALIFORNIAS MEDICAL MARIJUANA LAWS WERE ENACTED FOR
INDIVIDUALS WHO ARE PROTECTED BY THE DPA. .......................................... 20
1. The MMPA refers directly to disability law ......................................... 21
2. The collective at issue here has standing to assert a DPA
discrimination claim .................................................................................... 22
i
ii
TABLE OF AUTHORITIES
CASES
A Helping Hand, L.L.C. v. Baltimore Cnty. (4th Cir. 2008)
515 F.3d 356 ................................................................................................... 28
Addiction Specialists, Inc. v. Township of Hampton (3d Cir.2005)
411 F.3d 399 ................................................................................................... 23
Baba v. Board of Supervisors (2004)
124 Cal.App.4th 504 ....................................................................................... 11
Bay Area Addiction Research and Treatment, Inc. v. City of Antioch
(9th Cir. 1999) 179 F.3d 725 .................................................................... 29, 30
Bay Area Addiction Research and Treatment, Inc. v. City of Antioch
(N.D. Ca. March 16, 2000) No. C 98-2651 SI, 2000 WL 33716782 ............. 30
Birkenfield v. City of Berkeley (1976)
17 Cal.3d 129 .................................................................................................. 24
Burnett v. San Francisco Police Department (1995)
36 Cal.App.4th 1177, 42 Cal.Rptr.2d 879 ...................................................... 18
Cipollone v. Liggett Group, Inc. (1992)
505 U.S. 504 ................................................................................................... 19
City of Cleburne v. Cleburne Living Center (1985)
473 U.S. 432 ............................................................................................. 26, 27
City of Riverside v. Inland Empire Patients Health and Wellness Center
(Ca. Supreme Court 2013) No. S198638 ........................................................ 20
City of Riverside v. Inland Empire Patients' Health and Wellness Center, Inc.
(2013) 56 Cal. 4th 729 .................................................................................... 36
Consolidated Rock Products v. City of Los Angeles (1962)
57 Cal.2d 515 .................................................................................................. 24
Crowder v. Kitagawa (9th Cir. 1996)
81 F.3d 1480 ................................................................................. 30, 31, 32, 33
iii
vi
ISSUES PRESENTED
1.
Section 538 of H.R. 83 codified as Public Law 113-265 and Title II of the
Americans with Disabilities Act as amended in 2008 (ADA), Los Angeles
County Municipal Code 2701, a ban of all medical marijuana patient
collectives, is a local rule, policy, or procedure that impermissibly discriminates
against protected individuals in violation of Title II of the ADA?
3.
arguments despite the limited issue in that case of whether a municipal ban of
medical marijuana dispensaries was preempted by state medical marijuana
laws?
vii
INTRODUCTION
A.
B.
collectives are not preempted by state marijuana laws. Nowhere does the
County address years of case law governing disability anti-discrimination laws
that were not discussed in and not covered by that state Supreme Court decision
its request for relief is based entirely upon. The trial court sustained the
demurrer without leave to amend and granted the Countys requested
preliminary injunction thereby emboldening continuing Not in My Backyard
discriminatory actions by law enforcement and County officials.
C.
The record further makes clear that Supervisors knew medical marijuana
collectives are established under state law for people with cancer and other
disabilities:
I DO KNOW QUITE A NUMBER OF PEOPLE, CLOSE
PERSONAL FRIENDS OF MINE OVER THE YEARS, OVER THE
LAST 30 YEARS, WHO HAVE HAD SERIOUS CANCER, IN SOME
CASES TERMINAL CANCER FOR WHOM MEDICAL
MARIJUANA WAS THE DIFFERENCE BETWEEN SOME KIND
OF A SEMBLANCE OF A QUALITY OF LIFE IN THEIR FINAL
DAYS AND MONTHS AND THOSE WHO WERENT. THIS IS NOT
SOME KIND OF A SCHEME OR A SCAM. ITS NOT SOME KIND
OF A JOKE. THIS ACTUALLY HAS A POSITIVE IMPACT ON
REAL PEOPLE WHO HAVE REAL DISEASES THAT CAN BE
MITIGATED IN SOME CASES WITH MEDICAL MARIJUANA.
AND THATS WHY MEDICAL MARIJUANA IS LEGAL IN THIS
STATE. (Sup. Yaroslavsky, Defendants Opposition Brief - RJN #1,
Hearing 11-23-2010, p.79,ll.14-24.)
Moreover, despite citizen fear-mongering and crowd-hype alleging crime is
caused by dispensaries, no empirical data or evidence supporting that notion
was presented during the hearings. To the contrary, supervisors were, in
advance of the meeting, provided with actual evidence showing crime decreases
around collectives:
I TRUST YOU HAVE ALL HAD AN OPPORTUNITY TO REVIEW
THE LETTER THAT I SUBMITTED TO YOUR OFFICES ON
WEDNESDAY OF LAST WEEK AND THE REPORT THAT I
DELIVERED ON THURSDAY. THAT REPORT SHOWS THAT
OUR EXPERIENCE AND OUR RESEARCH DEMONSTRATE
THAT SENSIBLE REGULATIONS FOR MEDICAL CANNABIS
COLLECTIVES REDUCE CRIME AND REDUCE COMPLAINTS. I
UNDERSTAND THERE ARE PUBLIC SAFETY CONCERNS. AND
THE WAY TO DEAL WITH THOSE IS WITH REGULATION AND
NOT WITH A BAN THAT PUSHES BACK THIS ACTIVITY INTO
7
sheer bluntness of the Countys animus separates this action from the
prototypical not-in-my-backyard confrontation and shows utter intent to
discriminate against what can only be a protected group. Where a discrete and
insular minority is targeted, discriminatory intent normally remains below the
surface subject only to inference, speculation and conjecture. The decisionmaker typically attempts to obscure its unlawful motive through the pretext of
lawful considerations forcing the harmed party to rely solely on circumstantial
evidence. A recent example of such an attempt is illustrated in Pacific Shore
Properties v. City of Newport Beach (2013) 730 F.3d 1142 [Pacific Shores]
(RJN #3). All the proper things are said and done in public while the decisionmaker works surreptitiously behind the scenes in violation of the law. While a
myriad of evidence of such concealment is evident, concealment is only part of
the case here. Indeed, the County has broadcast its discriminatory animus
repeatedly.
E.
Americans with Disabilities Act which in-part proclaims that stereotypes related
to disabled people are what the law targets to stop and prevent. California
provides medical marijuana laws not recreational marijuana laws. Regardless
8
of the personal bias of judges and municipal officials who misstate and
misinterpret the law, statements made that marijuana patients are not really
patients but just people seeking to get high are discriminatory, lump the patients
into a group based on preconceived notions, conjecture and speculation and
relegate them to class of people who the courts do not protect. Since they can
no longer openly discriminate based on race, gender or sexual orientation,
judges, prosecutors and government officials have turned to disability
discrimination and without any empirical evidence or basis to do so fail to
protect patients with cancer, AIDS, in wheelchairs and who use medical
cannabis pursuant to state law that has no other purpose than to provide for
patients in a discriminatory and illegal manner.
F.
lives by taking their property, arresting them and treating them like second-class
citizens. Apparently suffering from the same discriminatory animus with very
few exceptions, trial courts look at medical marijuana as a put-on. Still
believing years of federal propaganda, the courts improperly alter the intent of
the voters who provided medical marijuana for seriously ill and disabled
Californians. It is not those laws that have anything to do with protecting
against discrimination by public entities it is the CDPA and ADA that protect
the minority class both were designed to shield from the stereotypes that have
led to exactly what is happening here. The obtaining of medical
9
10
STANDARD OF REVIEW
Whether an ordinance is valid is a question of law. (Zubarau v. City of
Palmdale (2011) 192 Cal.App.4th 289, 305; Baba v. Board of Supervisors
(2004) 124 Cal.App.4th 504, 512 [21 Cal.Rptr.3d 428].) The trial court granted
the Countys Motion for Preliminary Injunction refusing to find its ordinance
violates applicable state and federal anti-discrimination laws. Accordingly, in
assessing the validity of Section 2701 in respect to the trial courts ruling, a de
novo standard of review applies.
DISCUSSION
I.
13
Here, the
Acme patients are not seeking accommodation. Rather, they are challenging
the validity of laws, policies, or procedures that facially or through disparate
impact discriminate against them. This is so because a disabled person who
has been recommended medical cannabis by a doctor under state law can only
receive such a recommendation when he or she suffers from a physical or
mental health condition. People who do not suffer from physical or mental
conditions are not eligible for a doctors prescription for medical marijuana.
Only patients with medical marijuana prescriptions from licensed
doctors can participate in the medical marijuana collective program. It follows
that dispensaries can only be groups of patients or their authorized caregivers.
When a county bans or has a zoning law that effectively bans all dispensaries,
it can only be targeting patients with doctor prescriptions which means it is
only targeting people with physical or mental conditions.
B.
Physical and mental disabilities include, but are not limited to, chronic
or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure
disorder, diabetes, clinical depression, bipolar disorder, multiple
sclerosis, and heart disease. In addition, the Legislature has
determined that the definitions of physical disability and mental
disability under the law of this state require a limitation upon a
major life activity, but do not require, as does the Americans with
Disabilities Act of 1990, a substantial limitation. This distinction is
intended to result in broader coverage under the law of this state
than under that federal act. (emphasis added).
Ca. Govt Code 12926(j)(1)(C) provides, [m]ajor life activities shall be
broadly construed and shall include physical, mental, and social activities and
working. Under California law, a person is not qualified for DPA protection
for disabilities resulting from the current unlawful use of controlled
substances or other drugs. (Ca. Govt Code 12926(k)(6).)
The Legislature, in Health & Safety Code 11362.7(h) enumerated the
physical and mental conditions for which a medical marijuana prescription is
appropriate. The catch-all part of that law, section 11362.7(h)(12)(a),
provides that medical cannabis may, in addition to the enumerated conditions,
be prescribed to a person suffering from a physical or mental condition that
substantially limits a major life activity as defined in the federal Americans
with Disabilities Act.
Since the catch-all in section 11362.7(h)(12)(a) is limited to people
with physical or mental conditions that substantially limit a major life
activity, the states medical marijuana program law is more restrictive than the
completely separate DPA that provides protection for Californians with
conditions that simply limit a major life activity. The DPA requires only a
15
limit on a major life activity while the more restrictive state medical marijuana
program law requires a person have a condition that substantially limits a
major life activity in order to be prescribed medical marijuana under its catchall section. Accordingly, the group of people who can be prescribed medical
marijuana under the states medical marijuana program law must be a subset of
people who are protected by the states less restrictive DPA qualification
provision. It also means that actions taken by cities or counties against patient
dispensaries, which can only be a group of protected patients, must be analyzed
considering the DPA. All of Acmes members are patients or caregivers.
C.
the right of an individual under the ADA, also constitutes a violation of this
section. (Emphasis and underline added noting the rights are incorporated, not
federal limitations.) The ADA provides that no qualified individual with a
disability shall be subjected to discrimination by any local or state
government. (42 U.S.C. 12132.)
1.
Both the DPA and the Unruh Civil Rights Act prohibit
municipal laws that discriminate against the disabled
Unruh Civil Rights Act ( 51, subd. (f)) and the Disabled Persons Act (
54.1, subd. (c)). This acknowledged overlap, therefore, does not
require us to restrict, artificially and contrary to the statutory
language, the types of ADA violations remediable under the Unruh
Civil Rights Act. (Id. at 675) (emphasis added).
Thus, the state Supreme Court has held the plain language of sections
51(f) and 54(c) include the 42 U.S.C. 12132 prohibitions against county laws
that discriminate against the disabled.
Ca. Civil Code 51(f), part of the Unruh Civil Rights Act3 [Unruh],
provides:
A violation of the right of any individual under the federal Americans
with Disabilities Act of 1990 (P.L. 101-336) shall also constitute a
violation of this section. (Emphasis and underline added.)
In Qualified Patients Association v. City of Anaheim (2010) 187
Cal.App.4th 734 [Qualified Patients], the Fourth District Ca. Court of Appeal
held that because the Unruh Civil Rights Act expressly appl[ies] to business
establishments, [there is] no room for its application to [a] city's legislative
action. (Id. at 765.) Instead of seeking relief under section 51(f), the plaintiff
in Qualified Patients sought to invalidate a city ordinance under Ca. Civil
Code 51(b)4. Disagreeing with the court in Gibson v. County of Riverside
(C.D.Ca. 2002) 181 F.Supp.2d 1057, 1093 [Gibson], the court instead
18
2.
19
comports with the 42 U.S.C. 12201(b) provision that states may be more
protective and inclusive of disabled individuals.
D.
marijuana for medical purposes, not for recreational use. (Ca. Health & Safety
11362.5.) Indeed, the states Compassionate Use Act (Ca. Prop. 215,
11/1996, Ca. Health & Safety 11362.5) (CUA), provides its purpose is:
[T]o ensure that seriously ill Californians have the right to obtain and
use marijuana for medical purposes where that medical use is deemed
appropriate and has been recommended by a physician who has
determined that the person's health would benefit from the use of
marijuana in the treatment of cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, migraine, or any other illness for
which marijuana provides relief. (Ca. Health & Safety
11362.5(B)(1)(a) (emphasis added.))
At the most basic level, the CUAs purpose is to provide for people suffering
from illness, permanent injury, and disability. Moreover, under California law,
those disabled individuals must have prescriptions for marijuana from licensed
medical doctors. (Ca. Health & Safety 11362.5.) When they enacted the
CUA, the voters limited the operative provisions of their ballot initiative to
decriminalizing use, possession, and cultivation of medical marijuana. (Ross v.
Ragingwire Telecomms., Inc. (2008) 70 Cal.Rptr.3d 382, 42 Cal.4th 920.)
While the voters did not intend to override local bans through separate and
distinct state law preemption mechanisms (City of Riverside v. Inland Empire
Patients Health and Wellness Center (Ca. Supreme Court 2013) No. S198638),
20
the voters made clear they intended their law apply only to seriously ill and
disabled individuals with medical recommendations from licensed doctors.
(e.g. Ca. Health & Safety Code 11362.5(b)(1)(A), [To ensure that seriously
ill Californians have the right to obtain and use marijuana for medical purposes
where that medical use is deemed appropriate and has been recommended by a
physician who has determined that the person's health would benefit from the
use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, migraine, or any other illness for which
marijuana provides relief.].)
1.
Part of the Medical Marijuana Program Act (Stats. 2003, Ch. 875) (enacted
2003, effective 1/1/2004) [MMPA].
21
prohibition against discriminatory county laws flows from the Title II rights
protected under section 54(c) of the states Civil Code. That section therefore
prohibits local governments from discriminating against not only individuals,
but entities like Collective. (28 C.F.R. 35.130(g).) Additionally, every
federal circuit that has considered the issue of whether a methadone clinic has
standing to bring a discrimination claim for the addicted people it serves has
held such clinics indeed have standing. (See Addiction Specialists, Inc. v.
Township of Hampton (3d Cir.2005) 411 F.3d 399, 405-07.)
3.
23
The system for safe and affordable distribution that the CUA directed the
state to create was established by the Legislature in the independent collective
and cultivation provisions set forth in Ca. Health & Safety Code 11362.775
the criminal law exceptions for distribution, storage, and transportation of
medical cannabis. That section is limited to protecting a subset of people who
are necessarily and by definition qualified under the states less restrictive
disability laws. (Ca. Health & Safety Code 11362.7(h).)
E.
power to enact ordinances and regulations that protect the health, safety, and
welfare of their citizens. (See Ca. Const. art. XI, 7.) This police power is
broad in scope and elastic in nature. (Miller v. Board of Public Works (1925)
195 Cal. 477, 484; Birkenfield v. City of Berkeley (1976) 17 Cal.3d 129; see
also, Consolidated Rock Products v. City of Los Angeles (1962) 57 Cal.2d 515,
522.) Generally, a local ordinance is legitimate so long as the police power
exercised has a rational relationship to a legitimate state purpose. (See
Stubblefield Constr. Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687,
712-13.) If the laws passed are seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to that
effect renders a court functus officio. (Nebbia v. New York (1934) 291 U.S.
502, 537, 54 S.Ct. 505, 78 L.Ed. 940 (emphasis added); see also, e.g., Village
24
The law at issue in this case only targets people who use
marijuana with a doctors prescription to treat their respective
disabilities
The offending law at issue in this case, Section 2701, targets what can
only be a group of people protected by the DPA. The law is targeted at
medical marijuana collectives. Collectives and dispensaries can only be and
therefore only provide for patients prescribed cannabis by a doctor. (Ca.
Health & Safety Code 11362.775; Guidelines at 4(A)(2).)
The patients in this case use medical marijuana because of their serious
disabilities. They would not use medical marijuana but for conditions that
limit a major life activity. Section 2701 target dispensaries which can only be
collectives (a business or farm jointly owned and operated by its members).
Only patients and caregivers can be members of collectives thus Section 2701
only impact protected disabled individuals because they discerns between them
and individuals who are not disabled. Moreover, the laws do more than just
discern between the patients and other citizens; they treats the patients
adversely by placing restrictions and conditions on them that are not placed on
comparable uses. Accordingly, the Countys ban law fails when the neither
arbitrary nor discriminatory test is applied. (Nebia, supra, 291 U.S. at 537;
Willowbrook, supra, 120 S.Ct. at 1073.)
25
2.
retarded] for the special use permit, yet imposing no such restrictions on the
many other uses freely permitted in the neighborhood. (Id. at 450.)
In words which are directly applicable here, the Court held that
deferring to the fears and concerns of the community in denying the permit
was not a defense, first stating mere negative attitudes, or fear,
unsubstantiated by factors which are properly cognizable in a zoning
proceeding, are not permissible bases for treating one use from another. It
went on to say ...the city may not avoid the strictures of the law by deferring
to the objections of some faction of the body politic. (Id. at 448.) The Court
held that denying a permit based on such vague, undifferentiated fears is again
permitting some portion of the community to validate discrimination. (Id. at
449.)
3.
Additionally, a Planning Board member said, why do we have to have all the
treatment facilities right here in Middletown? (Id.) Another member said,
theres an over-concentration of residential and social service facilities in the
City. Based on this evidence, the court concluded the statements, more than
suffice to establish the plaintiffs prima facie case. 6
In Project Life, Inc. v. Parris Glendening (2001) 139 F.Supp.2d 703, the
court found a Title II violation based on city officials illegal acquiescence to
[the] desire not to have a program for recovering addicts located in their
backyard. (Id. at 708.) Similarly, when considering a zoning discrimination
case under Title II, the court observed that, [t]his case presents the familiar
conflict between the legal principle of non-discrimination and the political
principle of not-in-my-backyard. (New Directions Treatment Services v. City
of Reading (3d Cir. 2006) 490 F.3d 293, 295; A Helping Hand, L.L.C. v.
Baltimore Cnty. (4th Cir. 2008) 515 F.3d 356, 367 at 366.)
In this case, the patients, like the patients in Project Life, have been and
continue to be adversely impacted by government action motivated by
discriminatory animus. Likewise, that adverse impact has been, in-part, caused
by discriminatory statements made by government employees and elected
officials about medical marijuana patients, collectives, and dispensaries.
Horizon House Dev. Servs. Inc. v. Twp. of Upper Southampton (E.D. Pa.
1992) 804 F. Supp. 683 at 690; Sunrise Development, 62 F. Supp. 2d at 76876.
28
4.
statement by a city official that a use causes crime. In fact, such a statement
is evidence of per se discrimination. Upon remand, the trial court found the
clinic did not pose a significant threat and enjoined the defendant city. (Bay
Area Addiction Research and Treatment, Inc. v. City of Antioch (N.D. Ca.
March 16, 2000) No. C 98-2651 SI, 2000 WL 33716782, at 11-12.) Also, in
Bay Area, the court held that zoning is a program or activity for purposes of
discrimination analysis.
While the patients in this case do not use marijuana because they are
former drug addicts, they should be protected at least as much as the
methadone patients in the Bay Area case. Moreover, although the medical
cannabis patients may not be former drug addicts, current societal animus
toward them makes them regarded as disabled or treated for a condition
likewise qualifying them for protection. (Ca. Govt Code 12926(k)(4).)
5.
While state medical marijuana law does not grant patients the
right to be accommodated, they are nonetheless protected by the
DPA from discrimination
In this case, the patients are not claiming any special right to marijuana
than they would if they were prescribed Ambien. There is no state law
authorizing a variety of things that are used by people protected under the
DPA. There is no requirement the state accommodate or take positive action
here that is in any way similar to building a wheelchair ramp or widening a
door under the different and separate accommodation provisions of the DPA
that are not at issue in this case. Here, the patients are not arguing the
government must build covered marijuana smoking areas. Indeed, state and
local government entities have no obligation to provide, through
accommodation, the mitigation relied on by seriously ill or disabled citizens
(i.e. cultivation equipment, medical cannabis, or dispensaries) or, for example,
special chemotherapy rooms for people with cancer. However, the DPA
prohibits discriminatory laws that facially or by operation discriminate against
such entities that can only provide for patients.
Here, the offending law at issue facially operates to impose restrictions
on a protected class of individuals that can only be disabled. Those individuals
only use marijuana because they have a medical condition. They cannot do so
otherwise. In Crowder, the state of Hawaii actually discriminated against dogs
not the disabled. Dogs are not a protected class under the discrimination
laws. It was the operation of the canine-quarantine law that, when applied,
discriminated against certain people who use dogs when they have a disability
that then required accommodation under the facially neutral law for the
adversely impacted patients. Here, the law is facially discriminatory and there
is no accommodation necessary. Instead, the law is invalid because it is
32
targeted only at people who have a condition that affects a major life activity
patients prescribed medical marijuana by their respective doctors.
The court in Crowder determined the state of Hawaii had addressed a
very important issue related to public safety when it enacted its caninequarantine law. Hypothetically, a state could proffer valid reasons for enacting
a law that prohibits just service-dogs. For instance, lets say the state was
confronting a widespread issue involving people mimicking the blind by
wearing sunglasses, walking a dog on a leash, and holding a cane or stick in
order to obtain disability benefits. The fact that someone who is not blind
pretends to be blind in an effort to obtain disability benefits does not cancel-out
discrimination law. If there was a huge problem with disability fraud, the
corrective measure cannot be a blanket ban of all service dogs. Rather, the
state can pass or enforce laws that prohibit the fraud.
Here, unlike in Crowder, the law only targets the disabled. Even if
some medical marijuana users are not truly sick or disabled, the government
has mechanisms for prosecuting those individuals and they cannot be deemed
the basis for banning all dispensaries. (See, e.g., Innovative Health Systems v.
City of White Plains (1997) 117 F.3d 37, 48, (An inevitable, small percentage
of failures should not defeat the rights of the majority of participants in the
rehabilitation program who are drug-free and therefore disabled )
Like the blind plaintiff in Crowder who was not required to hire a
temporary guide instead of using his own guide dog, the patients in this case
33
present in the states medical marijuana law is the Ross case, supra. Ross
involved an employee who sought redress after he was terminated following
the results of an employment related drug screening test proved he was using
marijuana. The employee argued his employer had to accommodate his
medical marijuana use under the states Fair Employment and Housing Act,
.Ca. Govt Code 12940,12945, 12945.2 [FEHA].
The Court was unwilling to find an implied requirement that private
employers accommodate marijuana use in the Ross case. Indeed, a detailed
reading shows there is no mention of employment protections in either the
CUA or MMPA. A reading of FEHA shows it carefully details, in-part for
economic policy reasons, the burdens it places on employers. Much of the
Courts opinion in Ross focused on the lack of notice to employers of their
duty to accommodate marijuana use and the absence of employment
accommodation in the CUA.
34
Unlike the plaintiff in Ross, the patients here are not seeking
employment accommodation rights under FEHA. Indeed, the patients here are
not claiming any right of accommodation at all. Very different than FEHA, the
provisions of the DPA define broadly those who qualify under that section for
protection from discrimination. Specifically targeted at seriously ill and
disabled citizens, the law at issue here has nothing to do with forcing
employers to accommodate medical marijuana use. Also important is the fact
that employment rights and accommodation are mentioned nowhere in state
medical marijuana laws. However, those laws are rife with the terms
medical, patient, and the condition enumerations in the CUA and MMPA.
While the voters did not contemplate special employment accommodation,
they absolutely knew they were voting on a law that impacts only sick and
disabled people. So did the Legislature when it enacted the MMPA in 2003.
Nevertheless, the states medical marijuana laws do not grant patients any
special right of accommodation -- nor does the DPA. Rather, the DPA
prohibits discriminatory laws, practices, policies, and actions by state and local
governments. Accordingly, the Ross holding limited to FEHA and
accommodation is inapplicable.
H.
Cal.App.4th 386, wrote, The Supreme Court has repeatedly reminded this
states lawyers and judges that its opinions are not authority for propositions
35
36
II.
In its papers, the County cited James v. City of Costa Mesa (9th Cir.
2012) 684 F. 3d 825 [James] to support its demurrer to the Plaintiffs cause of
action for violation of the federal ADA. In that case, four (4) disabled
Californians who each used medical marijuana pursuant to state law sued the
cities of Costa Mesa and Lake Forest under Title II of the ADA. The Plaintiffs
in that case included a wheelchair confined veteran who died during the
litigation, an approximately fifty (50) year old female amputee likewise
restricted to a wheelchair (she is also a plaintiff in this case), a man who was
paralyzed and suffered brain injuries when he fell from a ladder, and an older
man who suffers from painful and debilitating brittle bone disease. Each
Plaintiff was recommended cannabis by a licensed physician to treat symptoms
caused by their disabilities.
Title II of the ADA prohibits city or state laws that facially or by
operation discriminate against qualified disabled individuals. (42 U.S.C.
12132.) Contrary to the Countys attempted broad use of the James case
beyond its limited holding, the appellate court decided only whether the 42
U.S.C. 12210(d)(1) exception to the illegal drug use prohibition in the ADA
allowed the Plaintiffs to remain qualified for protection. (James, supra.) In a
split-decision, the Ninth Circuit affirmed the trial courts finding that there is an
implied federal Controlled Substances Act (21 U.S.C. 801, et seq.) [CSA]
37
2014 and December 14, 2014, the United States House of Representatives and
United States Senate voted to enact H.R. 83, an appropriations bill. Prior to its
enactment, H.R. 83 was amended to include Section 538 (Sec. 538) which
prohibited the Department of Justice from using funds in a manner inapposite to
the implementation of state medical marijuana laws in 32 states and the District
of Columbia. Thereafter, on December 16, 2014, the President signed H.R. 83,
which was codified as Public Law 113-265 and provides in Sec. 538:
None of the funds made available in this Act to the Department of
Justice may be used, with respect to the States of Alabama, Alaska,
Arizona, California, Colorado, Connecticut, Delaware, District of
Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana,
Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode
Island, South Carolina, Tennessee, Utah, Vermont, Washington, and
Wisconsin, to prevent such States from implementing their own State
laws that authorize the use, distribution, possession, or cultivation of
medical marijuana. (Sec.538, P.L. 113-265.)
B.
other provisions of federal law. Although the Plaintiffs in James argued that
Congresss actions allowing the District of Columbia government to enact and
implement the medical-marijuana law in that city was an other provision of
federal law,, the Ninth Circuit deemed Congress acted as a de facto state
legislature when it legislated allowing medical marijuana for Washington D.C..
Now, Congress has acted as the federal sovereign by enacting Sec.538 which
prohibits use of funds by the federal Department of Justice from preventing 32
states and the District of Columbia from implementing their own State laws
that authorize the use, distribution, possession, or cultivation of medical
marijuana. State marijuana laws cannot be implemented without patients using
medical marijuana. It follows there is now an other provision of federal law
under section 12210(d)(1) of the ADA that provides an exception for the use of
medical marijuana by patients who remain qualified for ADA protection.
Moreover, Congresss action does not just provide for patient use it provides
for distribution, possession and cultivation of marijuana.
CONCLUSION
The preliminary injunction issued by the trial court was based on a law
that violates the CDPA and ADA. Accordingly, the law is unconstitutional and
the erroneous trial court decision must be REVERSED.
Respectfully submitted on November 22, 2015:
_________________________________
Matthew Pappas, SBN: 171860
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CERTIFICATE OF COUNSEL
Counsel for Appellants hereby certifies that, pursuant to Rule 14(c)(1) of
the California Rules of Court, the enclosed OPENING BRIEF ON THE
MERITS was produced using 13-point Times New Roman proportional font
and contains approximately 9,694 words excluding the table of contents, table
of authorities, cover page, and this certificate. In arriving at this estimate,
counsel selected the parts of the document excluding the aforementioned tables
and cover page and retrieved the count of words provided by the Microsoft
Word 2010 word processing software used to produce the document.
I hereby certify the aforementioned certification is true and correct under
penalty of perjury under the laws of the state of California.
DATED: November 22, 2015:
________________________________
Matthew Pappas
40