Pack Pot Case Tossed – September 16, 2012

Sunday, September 16, 2012

Daniel Mintz

Eye Correspondent

CALIFORNIA – The state’s Supreme Court has dismissed a Court of Appeals case that has influenced local moratoriums on medical marijuana dispensaries.

When the appellate court ruled last year that the City of Long Beach’s dispensary ordinance was inapplicable because it violates federal law, local governments – including Arcata’s – backed off of medical marijuana dispensary permitting and stopped processing new dispensary applications.

The state’s Supreme Court had accepted the appellate court case – known as the Pack decision – for review last January but on Aug. 22 issued an order to dismiss it. The Supreme Court’s dismissal order states that since Long Beach has repealed the ordinance that brought the case forward and the plaintiffs “abandoned their federal pre-emption argument,” there is no need for review.

A prevailing legal interpretation is that the Pack decision will not be published and does not establish legal precedent. In a press release from the Americans for Safe Access (ASA) medical marijuana advocacy group, the Supreme Court’s action is described as a game-changer.

“The court has pulled out the rug from under local officials who have used the Pack decision to deny access to thousands of qualified patients across the state,” said Joe Elford, ASA’s chief counsel, in the release.

Last May, the Arcata City Council approved a 22-month, 15-day moratorium on processing new and pending dispensary applications. “Pack was really important because it was the decision to address federal pre-emption,” said City Attorney Nancy Diamond, but she added that there are other factors.

The state’s attorney general has suspended the drafting of guidelines for local governments due to numerous legal circumstances and federal prosecution has become more aggressive. Federal officials verbally informed Arcata that its dispensary permitting violated federal law, said Diamond.

It’s “too early to say” how Pack’s dismissal will affect the Arcata moratorium, she continued. There are cases before the Supreme Court addressing the issue of state pre-emption – whether California’s medical marijuana laws trump local regulations – and Diamond said subsequent rulings might “give us an indication of how to analyze federal pre-emption.”


“My strategy is to continue to wait and evaluate all these components until there’s more stability in the legal landscape,” she said.

The county’s Board of Supervisors declined to include dispensary aspects in its indoor medical marijuana ordinance last November and instead directed staff to prepare a 45-day moratorium on dispensary applications. The moratorium was later approved and an extension holds it in effect until mid-November of this year.

At the time, Deputy County Counsel Davina Smith told supervisors the Pack decision “kind of dropped the bomb on everyone” and a Supreme Court affirmation of it could make it impossible for dispensaries to continue operating.

Interviewed last week, Smith said the dismissal of the Pack case is still being evaluated by county staff. But she said it appears that the Pack appellate ruling no longer binds local governments.

Other circumstances that affected the county’s moratorium, such as the potential for federal enforcement actions and the pending Supreme Court cases, are still relevant, she added.

“These are all factors we’re evaluating, along with what the dismissal of the Pack case means to the moratorium,” she continued.

Had the Supreme Court gone ahead with a review of Pack case, legal precedent would have been set on the question of federal pre-emption, providing guidance to local governments.

Both Smith and Diamond said it’s disappointing that the Supreme Court hasn’t delivered clarification on the issue of federal pre-emption.

“The legal precedent is gone but the fundamental question hasn’t been answered,” said County Supervisor Mark Lovelace, who co-chairs the California State Association of Counties committee on medical marijuana. “We no longer have an affirmative decision saying we can’t permit (dispensaries) but we don’t have a decision saying that we can.”

Asked if the dismissal will affect the county’s moratorium extension, Lovelace said, “We could certainly revisit that.”

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8 Responses to “Pack Pot Case Tossed – September 16, 2012”

  1. OK, when it is all said and done, remember that I have been telling EVERYONE that state law pre-empts, local regulation. Also remember how BADLY the powers that be in local government, elected officials and staff handled this.
    Yet they all claim to be "good" at their jobs.

  2. Kevin Hoover

    Again Mark, are you capable of discussing civic matters without attacking the competence of the individuals involved?

    Please direct us to any instance of anyone involved making the statement that, "I am good at my job."

    Since you say they "all" made this claim, it should be easy to track down at least one example.

  3. On the issue of whether dispensaries are legal under state law, the AMCC court ruled that "[T]he repeated use of the term 'dispensary' throughout [Health and Safety Code section 11362.768] and the reference in subdivision (e) to a 'storefront of mobile retail outlet' make it abundantly clear that the medical marijuana collectives authorized by section 11362.775 are permitted by state law to perform a dispensary function."

    The AMCC decision further held that "[Los Angeles] County's total, per se nuisance ban against medical marijuana dispensaries directly contradicts the Legislature's intent," and called that contradiction "direct, patent, obvious, and palpable."

  4. Kevin Hoover

    Where is the citation that supports this statement: "Yet they all claim to be "good" at their jobs?"

  5. I am setting up for a wedding in 15 minutes, please rest assured I will post more about this when the wedding, and reception are over.

    To me the "local regulations" are Jim Crowe laws that apply to medical marijuana users and producers, and therefor a civil rights issue.

  6. Here is recent example of the "powers that be" not being "good" at their jobs and willfully breaking STATE law…
    It is from the Eye…
    August, 2012′s Letters to the Editor – September 3, 2012.
    Monday, September 3, 2012.

    CEQA concerns

    Good Morning

    Thank you Randy.

    Note: I also filed a complaint against city for permitting contractor to demo the foundation in contradiction of the essential prohibitions affixed to the plans, imposed by law, and City Council (CC) appeal. The additional grading and demo beyond that allowed by the CC as “Ministerial” triggers discretionary review, even now. It was noted in the recent Arcata Eye “opinion” in a report made by Larry to the editor that the community development director (Larry) and the director of Public Works reviewed the permit on file, clearly stamped with the prohibition against removing the foundation… but did no see any reason to reject contractor’s request.

    In order to follow up with any further legal complaint, as you know, I am required to attempted to resolve the complaint through the city’s complaint process. So, looking for a response or a settlement. This is the full complaint.

    I spoke to Larry yesterday with the permit and his comments to Kevin Hoover before both of us. He said I was confused about which building permit was at issue. As you may know the demolition was appealed (Larry’s right to make a ministerial decision was appealed), to halt the ongoing CEQA public process. His argument, upheld by the CC, was that the applicant had withdrawn the application before planning that required CEQA and applied for a new permit of limited scope, no grading, no foundation to be removed that would not trigger CEQA. Any additional work would unquestionably require planning approval. His argument for a “Ministerial” permit still implied that CEQA was deferred, or as our attorney argued that this was an attempt to segment a project to avoid CEQA, which is against the law. It was foreseeable that additional work would be necessary, and this would still trigger CEQA.

    Attached is the permit and the prohibition. Larry and Dobie are at your disposal to explain what happened. The safety argument is not even close to valid, the work was done according to plans and discussion originally presented and the community objected for the same reasons that remain today.

    A greater concern now is that the city authorized on site waste treatment and disposal of hazardous waste without ANY CEQA review. The site is (your responsibility to check) likely contaminated and will contaminate (or has) adjacent and abutting properties (dust, water transportation of the existing contaminated soils, now bare soil (different standard for bare soil. (> 400 ppm?).

    The reason the discretionary publicly review CEQA process exists, to inform and advise the applicant, city and affected community, before the project is executed. All of the abutting neighbors will have great grounds for civil and criminal complaints against the city, CC, you, Dobie and Larry… not to mention the contractor.

    The city should take immediate action to test soils and water on site. Reportedly no fill was imported, this is also untrue, even so, the surrounding soils can generally be expected to be contaminated above action levels for bare soil lead (Pb)…On site treatment requires special permits, mixing soils is onsite treatment. I picked up several of the numerous fragments of plaster (ACM) from the ivy.Rains will percolate through the disturbed soils like water through ground coffee, and flow offsite, into streets, yards, bay.

    This is a lot like trying to put and egg back in a shell… you cannot correct all here, but its important that “the city” act lawfully. This is way out of line.

    The AG and regulatory agencies will be notified in all cases.

    I’m requesting the city, in response to complaint to:

    1) resume CEQA process for 1000 A street.

    2) ensure all hazards mitigated according to CA law.

    2) promise training to senior staff.

    3) discuss problem, solution in open.

    4) review responsible employee performance (avoiding CEQA is not a city policy).

    5 propose ordinance waiving fees for 3rd party CEQA challenges to CC.

    6) any resulting fines levied be paid to EPIC.. or CAL AWARE (although as far as record shows to date contractor and owner acted as directed by city staff).

    Private enforcement of CEQA would almost certainly include attorney fees if awarded. Private action is generally how CEQA is enforced although in egregious cases the state will initiate and otherwise sanction a city at fault. This is not the worst case ever, it is one of the most deliberately executed evasions with a jurisdiction’s supervision, oversight and approval. It has also establish a precedent (repeated several times so far in Arcata, according to the community development director) to specifically avoid CEQA on major projects (more than one hazard removal). It would be surprising if the state agreed with Larry’s interpretation of when CEQA applies, how can CEQA not apply to this project?

    Thank you, happy to discuss.


    Marc Delany


    cc CC, N Diamond, Larry, Kevin Hoover".

    But I guess breaking the law to the benefit of the higher income folks in town could be considered bu some to be "doing a good job".

  7. The genie is out of the

  8. The genie is out of the bottle and she isn't going back


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