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How California's Anti-Discrimination Laws Protect Medical

Cannabis Patients Suffering from Physical or Mental Impairments


Against Discriminatory Local Zoning Practices
By Matthew Pappas

In a free society, the activities and conduct a person may engage in are expansive
and sweeping while the limits on what people can do are confined to a narrow and finite
set of written proscriptions deemed necessary to protect the rights of others. It is not
generally things we are allowed to do that are classified, but rather things that are
prohibited that must be definite and carefully set forth in ordinances, statutes and
regulations. For example, there is not a law that permits people to use eyeglasses. While
some eyeglasses can be purchased for reading purposes without restriction, some require
a prescription from a qualified optometrist or ophthalmologist. For prescription
eyeglasses, when proper recommendation by a qualified doctor has been obtained, the
conditions imposed by the law are satisfied and the rules restricting or prohibiting use
become inapplicable.
When there is nothing prohibiting eyeglass use by a person either because there
was no restriction in the first place or when conditions restricting use are satisfied, no law
granting a right to use eyeglasses is necessary. Instead, use is determined by personal
choice or necessity. Just as no law is necessary to grant a right to use eyeglasses, no law is
required to give a person the right to use a wheelchair, knee brace or hearing aid.
However, when use of a wheelchair or eyeglasses is no longer optional but rather becomes

How Cali/ornia 's AnlL-Discrimmatiol1 Laws Protect Medica!


Cannahis Patients SII((eringjfmn Physical or l'denla! impairments
Against Discrimina/ory Local 7/ming Practices

necessary to mitigate the impact of an impairment that limits a major life activity, use of
the mitigating thing by a person suffering from an impairment becomes protected by
disability law. Both state and federal law protect an impaired person's right to use,
possess and access whatever thing (e.g. eyeglasses, medication, wheelchairs, knee braces,
etc.) that operates to mitigate or conect a physical or mental impairment. It is the
disability laws - not the law governing the mitigating device, medication or aid - that
protect the right to use, access and possess the things used by people with disabilities to
mitigate conditions or symptoms from which they suffer. Once conditions required to
satisfy restrictions or limits specific to a mitigating device, medication or aid are met, a
disabled person is protected by law from discrimination related to their use of the that
mitigating device, medication or aid.
Just as wheelchairs or eyeglasses can reduce the effects of impairment for certain
disabled individuals, so can medication for those suffering from drug dependency. For
people who previously abused opiate drugs, Medication-Assisted Treatment (" MAT") is
often used to mitigate or reverse the debilitating effects of addiction. Unfortunately,
people who use MAT to recover from addiction are frequently subjected to improper and
illegal discrimination just as so many people who suffer from physical and mental
disabilities are and have been in the past. In its pamphlet titled Rights for Individuals on

Medication-Assisted Treatment, the U.S. Department of Health and Human Services


((( HHS") explains:

How Cali/ornia 's AnlL-Discrimmatiol1 Laws Protect Medica!


Cannahis Patients SII((eringjfmn Physical or l'denla! impairments
Against Discrimina/ory Local 7/ming Practices

"Individuals in MAT often face discrimination despite laws that plainly prohibit it.
This discrimination is largely due to lack of knowledge about MAT's value,
effectiveness and safety, and a lack of knowledge about the anti-discrimination
laws that protect people in MAT. Discrimination is also common because people
in MAT frequently do not have the tools necessary to educate employers,
landlords, courts, and others about MAT and relevant legal protections."
It continues, "The non-discrimination laws ... protect individuals with a 'disability" and
many people in MAT programs are individuals suffering from a disability. While most
disabled individuals participating in MAT are protected against discrimination, those who
are currently engaged in the illegal use of a drug are not.
Like prescription eyeglasses, the drugs methadone, buprenorphine or oral
naltrexone that are used in MAT programs are restricted by law. When a doctor
prescribes one or more of the MAT drugs for a person, no right is granted to use the drug
but rather the restriction prohibiting the drug's use becomes inapplicable. If a disabled
person uses the drug to mitigate or correct their drug dependency impairment, the person
is protected by disability anti-discrimination laws which operate to prevent local or state
laws that treat entities that provide for disabled individuals adversely. Whether
mitigation for a disabled person is a pair of eyeglasses or a drug prescribed by a doctor,
when the conditions restricting use of the thing used to mitigate (i.e. eyeglasses,
wheelchair, drug, etc.) are satisfied, the disability anti-discrimination laws protect against
discrimination.

How Cali/ornia 's AnlL-Discrimmatiol1 Laws Protect Medica!


Cannahis Patients SII((eringjfmn Physical or l'denla! impairments
Against Discrimina/ory Local 7/ming Practices

In its pamphlet, HHS defines' discrimination' as "treating someone less favorably


than someone else because he or she has a disability, once had a disability, or is regarded even erroneously - as having a disability.))

It continues:

" MAT treats a chronic disease - addiction - using legally-prescribed medications.


It is discrimination for employers, landlords, government agencies, and health care
and treatment providers to treat people less favorably because they are in MAT. It
is also discrimination to treat people in MAT differently than people who are
prescribed medication to treat other disabilities, such as people prescribed insulin
for diabetes or people with high cholesterol who are prescribed cholesterollowering medication.))
Under California's disability anti-discrimination statutes, local governments may not use
zoning laws to discriminate against MAT programs, even if there is strong neighborhood
opposition to the siting of the facility. Zoning laws that prohibit MAT programs or
restrict their location generally violate state law, which is more protective than
cOlTesponding federal laws that also prohibit the same type of discriminatory zoning.
Also, zoning practices that treat MAT programs differently from other entities violate
state law.
The same state anti-discrimination laws that protect against discriminatory zoning
laws targeted at MAT programs also protect medical cannabis patients from local laws
that treat medical cannabis dispensaries less favorably than other uses. Federal law does
not protect the rights of medical cannabis patients because it regards the use of marijuana
as the "culTent illegal use of a drug.)) However, state law incorporates and provides even

How Cali/ornia 's AnlL-Discrimmatiol1 Laws Protect Medica!


Cannahis Patients SII((eringjfmn Physical or l'denla! impairments
Against Discrimina/ory Local 7/ming Practices

greater protections than corresponding federal disability anti-discrimination law but


unlike federal law does not regard marijuana use as illegal when the conditions providing
for such use under state law have been met (i.e. the disabled individual has a valid
recommendation for medical cannabis to treat a physical or mental condition from a
licensed California physician).
Just as local zoning ordinances that discriminate against MAT programs through
discriminatory zoning laws or practices violate state law, so do local zoning laws that
similarly discriminate against dispensaries that can only provide medical cannabis for
people suffering from physical or mental impairments. Even if some patients
participating in MAT are ineligible for protection because they continue to engage in the
illegal use of a drug, the entities providing MAT programs (i.e. methadone clinics, drug
treatment centers, etc.) remain protected by state disability anti-discrimination laws.
Likewise, even if some patient members of medical cannabis dispensaries have feigned
conditions to obtain physician recommendations or are engaged in the illegal use of drugs
prohibited by state law, the dispensaries operating to provide for disabled people remain
protected from discriminatory local zoning rules, policies and practices.

Matthew Pappas is a civil rights attorney based in Long Beach, CaHfornia. He can be contacted via
email at: matt.pappas@mattpappas)aw.com or by telephone at (949) 382-1485.

How California's Anti-Discrimination Laws Protect Medical


Cannabis Patients SufJeringjrom Physical or Mental impairments
Against Discriminatory Local Zoning Practices