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No.

: 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.

Judge Rita Miller


Superior Court of Los Angeles
Judgment entered January 21, 2015
No. BC555178

APPELLANTS' OPENING BRIEF

Matthew Pappas, SBN: 171860


1719 E Broadway
Long Beach, CA 9002
Telephone: (949) 382-1485
Facsimile: (949) 382-1512

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

STANDARD OF REVIEW ............................................................................... 11


DISCUSSION .................................................................................................... 11
I. A LAW THAT DISCRIMINATES AGAINST PATIENTS VIOLATES
THE STATES DISABLED PERSONS ACT. .................................................. 11
A. THE DPA PROHIBITS DISCRIMINATION....................................................... 12
B. THE DEFENDANTS/APPELLANTS ARE QUALIFIED PROTECTED INDIVIDUALS
UNDER CA. GOVT CODE 12926 AND 12926.1 ........................................... 14
C. CALIFORNIA LAW INCORPORATES, STRENGTHENS, AND REINFORCES
PROTECTIONS THAT PROHIBIT MUNICIPAL AND STATE LAWS THAT FACIALLY
OR BY OPERATION DISCRIMINATE AGAINST THE DISABLED ............................. 16

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

3. The MMPA decriminalizes distribution of medical marijuana solely for


people independently protected from discrimination by the DPA and Unruh
23
E. THE ACTIONS TAKEN AGAINST THE PATIENTS IMPROPERLY DISCRIMINATE
AGAINST THEM AS WELL AS OTHER DISABLED INDIVIDUALS .......................... 24
1. The law at issue in this case only targets people who use marijuana
with a doctors prescription to treat their respective disabilities ............... 25
2. The law at issue targets medical marijuana collectives and dispensaries
but does NOT target medical clinics, methadone clinics, and pharmacies,
all of which are comparable uses ................................................................ 26
3. The Defendants/Appellants alleged evidence of per se discrimination by
Los Angeles County ..................................................................................... 27
4. Medical marijuana patients are protected at least as much as
methadone patients are protected under the DPA ...................................... 29
5. Through disparate impact, a state or local law can discriminate
against disabled individuals ........................................................................ 30
F. WHILE STATE MEDICAL MARIJUANA LAW DOES NOT GRANT PATIENTS THE
RIGHT TO BE ACCOMMODATED, THEY ARE NONETHELESS PROTECTED BY THE
DPA FROM DISCRIMINATION ........................................................................... 31
G. THE CLAIMS IN THIS CASE DO NOT INVOLVE ACCOMODATION .................. 34
H. THE RIVERSIDE CASE HAS NOTHING TO DO WITH DISCRIMINATION .......... 35
II. CONGRESS HAS PROVIDED AN OTHER PROVISION OF FEDERAL
LAW THAT OVERRIDES THE ADA DISQUALIFICATION DECISION IN
JAMES V. COSTA MESA ................................................................................... 37
A. SEC.538 OF P.L. 113-265 IS AN OTHER PROVISION OF FEDERAL LAW
UNDER THE ADAS 12210(D)(1) ILLEGAL DRUG USE EXCEPTION. .................. 38
B. SECTION 538 PROVIDES AN OTHER PROVISION OF FEDERAL LAW THAT
OVERRIDES THE JAMES DECISION..................................................................... 38
CONCLUSION .................................................................................................. 39
CERTIFICATE OF COUNSEL ......................................................................... 40
PROOF OF SERVICE BY MAIL ..................................................................... 41

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

Donald v Cafe Royale, Inc. (1990)


218 Cal.App.3d 168 ........................................................................................ 11
Geier v. American Honda Motor Co. (2000)
529 U.S. 861 ................................................................................................... 19
Gibson v. County of Riverside (C.D.Ca. 2002)
181 F.Supp.2d 1057 ........................................................................................ 17
Horizon House Dev. Servs. Inc. v. Twp. of Upper Southampton (E.D. Pa. 1992)
804 F. Supp. 683 ............................................................................................. 28
Innovative Health Systems v. City of White Plains (1997)
117 F.3d 37 ..................................................................................................... 33
James v. City of Costa Mesa (9th Cir. 2012)
684 F. 3d 825 ...................................................................................... 37, 38, 39
Miller v. Board of Public Works (1925)
195 Cal. 477 .................................................................................................... 24
Munson v. Del Taco, Inc. (2009)
46 Cal.4th 661, 94 Cal.Rptr.3d 685, 208 P.3d 623 ............................. 16, 17, 18
Nebbia v. New York (1934)
291 U.S. 502, 537, 54 S.Ct. 505, 78 L.Ed. 940 ........................................ 24, 25
New Directions Treatment Services v. City of Reading (3d Cir. 2006)
490 F.3d 293 ................................................................................................... 28
Pacific Shore Properties v. City of Newport Beach (2013)
730 F.3d 1142 ............................................................................................. 8, 36
People v. Bradley (1998)
75 Cal.Rptr.2d 244, 64 Cal.App.4th 386 .................................................. 35, 36
People v. Hochanadel (2009)
176 Cal.App.4th 997 ....................................................................................... 23
Project Life, Inc. v. Parris Glendening (2001)
139 F.Supp.2d 703 .......................................................................................... 28
Qualified Patients Assn v. City of Anaheim (2010)
187 Cal.App.4th 734 ....................................................................................... 17
iv

Regional Economic Community Action Program, Inc. v. City of Middletown


(2d Cir. 2002) 294 F.3d 35 ...................................................................... 27, 28
Ross v. Ragingwire Telecomms., Inc. (2008)
42 Cal.4th 920 ..................................................................................... 20, 34, 35
Stubblefield Constr. Co. v. City of San Bernardino (1995)
32 Cal.App.4th 687 ......................................................................................... 24
Village of Willowbrook v. Olech (2000)
120 S.Ct. 1073................................................................................................. 25
Wilson v. Costco Wholesale Corporation (S.D.Ca.2006)
426 F. Supp. 2d 1115 ...................................................................................... 11
Zubarau v. City of Palmdale (2011)
192 Cal.App.4th 289 ....................................................................................... 11
STATUTES
42 U.S.C. 12131(2) ......................................................................................... 18
42 U.S.C. 12132 ....................................................................................... passim
42 U.S.C. 12201(b) ................................................................................... 19, 20
42 U.S.C. 12210(d)(1) ......................................................................... 37, 38, 39
42 U.S.C. 1983 .............................................................................................. ii, 2
Americans with Disabilities Act of 1990, 42 U.S.C. 12101, et seq. (P.L. 101336) .......................................................................................................... passim
Ca. Civil Code 51(f) ...................................................................... 17, 18, 19, 22
Ca. Civil Code 54.3 ......................................................................................... 12
Ca. Civil Code 54(a)......................................................................................... 11
Ca. Govt Code 12926(j)(1)(C) ...................................................................... 15
Ca. Govt Code 12926(k)(4) ........................................................................... 30
Ca. Govt Code 12926.1 .................................................................................. 14
Ca. Health & Safety Code 11362.5 .......................................................... passim
Ca. Health & Safety Code 11362.5(b)(1)(A) .................................................. 21
Ca. Health & Safety Code 11362.5(B)(1)(a) ............................................ 20, 23
v

Ca. Health & Safety Code 11362.7(h) ............................................................ 21


Compassionate Use Act (Ca. Prop. 215, Appr. 11/1996, Ca. H&S 11362.5) 20,
23, 34, 35
Controlled Substances Act (21 U.S.C. 801, et seq.) ........................................ 37
Disabled Persons Act, (Ca. Civil Code 54, et seq.) ................................ passim
Fair Employment and Housing Act, .Ca. Govt Code 12940,12945, 12945.2
................................................................................................................... 34, 35
Los Angeles County Municipal Code 2701 ............................................. passim
Medical Marijuana Program Act (Stats. 2003, Ch. 875) (enacted 2003, effective
1/1/2004) ............................................................................................. 21, 34, 35
Sec.538, P.L. 113-265 .................................................................................. 38, 39
Unruh Civil Rights Act, Ca. Civil Code 51, et seq. ............................. 11, 17, 18
OTHER AUTHORITIES
Assem. Com. on Judiciary, Rep. on Assem. Bill No. 1077 (1991-1992 Reg.
Sess.) as amended Jan. 6, 1992 ....................................................................... 12
Assembly Bill No. 1077 (1991-1992 Reg. Sess.) .............................................. 12
Market Discrimination and Groups, Mark Kelman, 53 Stan. L. Rev. 833, 880,
note 24, 840 (2001) ......................................................................................... 13
REGULATIONS
2008 California Attorney General Guidelines for the Safety and Non-Diversion
of Marijuana Grown for Medical Use ............................................................ 22
28 C.F.R. 35.130(g) ......................................................................................... 23
CONSTITUTIONAL PROVISIONS
Ca. Const. art. XI, 7 ......................................................................................... 24

vi

ISSUES PRESENTED
1.

Whether 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 the
California Disabled Persons Act (DPA)?
2.

Whether, in light of the federal governments enactment of

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.

Whether the Riverside case forecloses disability discrimination

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.

Factual, procedural and legislative background


This case presents yet another instance of a municipality enacting a

facially discriminatory zoning ordinance with the bare desire to prevent a


politically unpopular group from locating within its borders. Relying on
unfounded fears, generalized prejudice, and illegitimate concerns, the County of
Los Angeles (the County or Los Angeles) has gone to great lengths to
prohibit all medical marijuana collectives from operating within its borders.
First, pursuant to the blatantly invalid Los Angeles County Municipal Code
2701 (Section 2701, 2701 or ban), the County is seeking to enjoin
ACME SILVER PLACEs operation. After withdrawing its conditional use
permitting system for medical cannabis collectives in 2010, Los Angeles
resorted to enacting its unconstitutional ban ordinance. The ban, Section 2701,
suffers from the same constitutional and statutory deficiencies as the conditional
use permitting system under which it failed to grant even a single permit, as
well as other provisions of its code prejudicing medical marijuana collectives.
The ban and actions by the County leading up to its enactment are further
testament to the deep-seeded discrimination the County holds against medical
marijuana patients it attempts to hide by characterizing all collectives as drug
dealers and all patient members thereof as people using drugs to get high rather
than to treat illnesses and disabilities from which they suffer.

B.

County actions against the Appellants


Contrary to the stereotype urged by the County and engrained in the

minds of countless citizens through sensationalized media snippets, years of


federal propaganda and outrageous reality television programs, ACME SILVER
PLACE (ASP) is a collective of patients all of whom have either been
recommended cannabis for medical use by a licensed physician or who are
caregivers for people issued such recommendations. ASP began operating in
Hacienda Heights, part of unincorporated Los Angeles County, in 2013. Its
membership is made up only of disabled individuals who suffer from conditions
for which medical cannabis has been recommended by their respective
physicians. Several months after it opened, the County, pursuant to its ban,
ordered ASP to close through administrative citations and notices.
In August, 2014, the County filed suit against ASP and, in an attempt to
validate its constitutional and statutory rights, ASP filed a cross-complaint in
late-2014 (the Cross-complaint) seeking declaratory and injunctive relief as
well as damages for the Countys violation of 42 U.S.C. 1983.
In response to the Cross-complaint, the County filed a demurrer in
December, 2014, asserting that: (1) ASP failed to adequately set forth disability
claims against County; and (2) ASP failed to adequately set forth a substantive
due process claim in its complaint. When it filed suit, the County also filed a
Motion for Preliminary Injunction seeking to deem ASP a nuisance through a
California Supreme Court case holding municipal bans of medical marijuana
2

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.

Legislative history and background


From the very beginning, the County openly displayed its visceral dislike

of medical marijuana patient groups working collectively together. As


municipalities have over and over again, Los Angeles County decided to
discern based on a protected class in enacting a law that could only adversely
impact its seriously ill and disabled citizens. It was during several County
Board of Supervisors public meetings held in July and November 2010,
multiple statements evidencing discriminatory animus led to the ban at issue in
this case:
I OVERSEE PROSECUTIONS IN THE PLACES MOST
AFFECTED BY THE EXISTING AND FUTURE MEDICAL
MARIJUANA DISPENSARIES. THESE PLACES ESSENTIALLY,
YOU ENTER THEM THROUGH A GLASS CAGE. YOU COME IN,
YOU PURCHASE YOUR MARIJUANA. YOU SHOW A CARD,
YOU GIVE MONEY. THESE PLACES ARE TURNING OVER
TREMENDOUS AMOUNT OF CASH. (Jacquelyn Lacey, Dep
District Atty., Los Angeles County, Defs Opposition Brief - RJN #1,
Hearing 7-6-2010, p.24,ll.1-25.)

Referencing what are themselves evidence of the Countys discriminatory


animus, Ms. Lacey cited tremendous amounts of cash, a glass cage and
potential criminal activity as reasons for enacting the ban. Following her
comments, several citizens commented:
I WANT ALL OF YOU TO KNOW THAT WE ARE WIDE AWAKE
NOW, ORGANIZING AND READY TO DO WHAT IS NECESSARY
TO BLOCK M.M.D.S FROM OUR COMMUNITY. I DEEPLY AM
CONCERNED FOR THE PEOPLE WHO HAVE SEVERE MEDICAL
CONDITIONS THAT THIS DRUG MIGHT HELP, BUT I FEEL IT
SHOULD BE HANDLED DIFFERENTLY. (Gail Sound, Defs
Opposition Brief - RJN #1, Hearing p.20,ll.22-25;p.21,ll.1-2.)
WE HAVE THE STRONG RESERVATIONS ABOUT POTENTIAL
CRIME, NEGATIVE IMPACTS ON RESIDENTS AND LOCAL
BUSINESSES. (Marlene Rader, Defendants Opposition Brief - RJN
#1, Hearing p.21, ll.12-14.)
WHAT IF I GO TO SELL MY HOME? OH BY THE WAY,
THERES A MARIJUANA DISPENSARY ACROSS THE STREET.
AM I GOING TO BE ABLE TO SELL MY HOME? (Daryl
Ditterbrand, Defs Opposition Brief - RJN #1, Hearing p.22, ll.23-25.)
Again evidence of discriminatory animus, the comments of these citizens
addressed potential crime, impacts on residents and land values.
Thereafter, the citizen comments, as well as those of Ms. Lacey, were embraced
and adopted by Sup. Michael Antonovich:
I THINK THE ELOQUENT STATEMENTS BY THOSE WHO
WERE SUPPORTING THIS [BAN] TODAY SHOWED THE
WIDESPREAD OPINION OF SUPPORT FOR THIS FROM OUR
COMMUNITIES AND FROM ALL WALKS OF LIFE. (L.A. County
Sup. Antonovich, Defendants Opposition Brief - RJN #1, Hearing
p.36,ll.2-6; 7-6-2010.)
4

While it is the Court rather than Supervisor Antonovich that is ultimately


responsible to protect minorities from laws passed by the majority that, for
example, in the past segregated drinking fountains and restrooms based on skin
color, his announced discriminatory animus supporting the ban is quite
appalling in light of comments made by Supervisor Zev Yaroslavsky during the
same meeting:
YOU HEARD SOME TESTIMONY FROM PEOPLE TODAY. I
HAVE PERSONAL FRIENDS WHO WERE TERMINALLY ILL
WITH CANCER FOR WHOM THE QUALITY OF LIFE WAS
MADE SOMEWHAT MORE PALATABLE BECAUSE OF THE
AVAILABILITY OF THIS SUBSTANCE UNDER A CONTROLLED
SITUATION. AND ID CERTAINLY HOPE THAT WE NOT MAKE
IT HARDER FOR PEOPLE SUCH AS THOSE INDIVIDUALS WHO
DO FACE LONG-TERM OR TERMINAL ILLNESSES FROM
BEING ABLE TO GET THE KIND OF ASSISTANCE THAT THEY
NEED TO ADDRESS THEIR QUALITY OF LIFE ISSUES IN THEIR
CLOSING DAYS. (L.A. County Sup. Yaroslavsky, Defendants
Opposition Brief - RJN #1, Hearing p.43,ll.2-10;7-6-2010.)
Despite Supervisor Yaroslavskys valid and proper concerns which make
clear the Countys understanding that it is sick and disabled people who are the
real target of the ban, the concerns about proliferation, land values and
speculative crime issues continued to be advanced. In what is classic not in
my backyard (NIMBY) banter so often misunderstood by municipal
governments, the citizen comments show further the improper NIMBY
considerations despite their concurrent acknowledgment of the disabled people
they intended to affect:
THIS IS A PUBLIC SAFETY ISSUE. IT IS NOT A DEBATE OVER
THE MEDICAL PROPERTIES OF A DRUG. PROPONENTS OF
5

BOTH SIDES SHOULD RECOGNIZE THE PUBLIC SAFETY ISSUE


AND SUPPORT THIS BAN. (Tulane Peterson, Defendants
Opposition Brief - RJN #1, Hearing p.23,ll.13-16.)
I DEEPLY AM CONCERNED FOR THE PEOPLE WHO HAVE
SEVERE MEDICAL CONDITIONS THAT THIS DRUG MIGHT
HELP, BUT I FEEL IT SHOULD BE HANDLED DIFFERENTLY.
(Gail Sound, Defendants Opposition Brief - RJN #1, Hearing p.20,l.
25;p.21,ll.1-2.)
I WAS AT A REGIONAL PLANNING COMMISSION IN DUARTE
JUST RECENTLY AS WELL. AND THE OVERWHELMING
PUBLIC OPINION IS PLEASE, DONT PUT THIS ANYWHERE
NEAR US. (Dan Kirby, Defendants Opposition Brief - RJN #2,
Hearing 11-23-2010, p.65,ll.14-16.)
When it enacted the ban, there can be no doubt the Board was well aware
of the impact its decision would have on disabled people. In one swift action,
the Board banned both the good and the bad. It enacted the ban despite
evidence the good are not the problem and with no evidence there was any
issue with the so-called evil, money-hungry illegally operating entities:
FOUR YEARS. AND WE HAVENT HAD ANY PROBLEMS IN
THE UNINCORPORATED AREA OF THE COUNTY. A MILLION
AND A HALF PEOPLE, IT WOULD BE THE SECOND LARGEST
CITY IN THE COUNTY IF IT WAS ITS OWN CITY. AND WE
HAVENT HAD ONE SINGLE PROBLEM. IN FACT, WE HAVENT
HAD ONE SINGLE DISPENSARY APPROVED. AND NOW WERE
ASKING FOR A BAN? WELL, WE HAVE A BAN. WE HAVE A
VERITABLE BAN. WE HAVENT APPROVED A SINGLE ONE.
AND WEVE ONLY HAD FIVE REQUESTS. (Sup. Yaroslavsky,
Defendants Opposition Brief - RJN #1, Hearing 7-6-2010,p.45,ll.3-10.)

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

THE SHADOWS. (Don Duncan, ASA, RJN #1, Hearing 11-23-2010,


p.71,ll.12-21.)
D.

Section 2701 targets a discrete and insular minority class


While this case proceeds along the familiar path of so many before it, the

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.

Medical marijuana is only for patients in California


Independently integrated into California state law are provisions of the

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.

State court discrimination toward medical marijuana patients


Cities and counties around this state have simply destroyed peoples

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

recommendations for marijuana by those who do not have a physical or mental


health need for it is akin to the millions of Americans who do the same for truly
dangerous prescription drugs like Oxycontin. Yet patients who use those
deadly prescription drugs to mitigate the impact of serious illness and disability
are not grouped-in with those violating the law. Those prescription drug users
are not protected by the laws that provide them with those prescription drugs,
but rather by those that prohibit discrimination. Laws providing for prescription
drugs remove the prescribed user from the auspices of criminal sanctions. It is
axiomatic that laws providing for medical marijuana do the same thing.
Differentiation between one and the other is without basis and done solely to
contrive reasons to allow for rampant and ongoing discrimination that should
bring shame to any civilized society that professes to care for its sick and
disabled citizens. As with every other civil rights conflagration that preceded
this one, local governments continue to discriminate because the courts
effectuate the long-held misunderstandings, propaganda and stereotypes about
marijuana that ultimately allow it to continue.

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.

A LAW THAT DISCRIMINATES AGAINST PATIENTS


VIOLATES THE STATES DISABLED PERSONS ACT.

The word discrimination comes from the Latin discriminare, which


means to distinguish between. However, discrimination means more than
distinction or differentiation; it is action based on prejudice or stereotypes
resulting in unfair treatment of people with disabilities. In California, the
Disabled Persons Act1, Ca. Civil Code 54, et seq. (DPA), is state law that
protects the disabled and seriously ill from discrimination. (Ca. Civil Code
54(a); see Donald v Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 176181.)
The DPA protects seriously ill and disabled persons by incorporating
and strengthening the protections provided for in the federal Americans with

The title California Disabled Persons Act is used in various court


decisions. See e.g., Wilson v. Costco Wholesale Corporation
(S.D.Ca.2006) 426 F. Supp. 2d 1115, 1123, [noting federal plaintiff had
filed ancillary jurisdiction claims under both Unruh Civil Rights Act and
Disabled Persons Act].
11

Disabilities Act of 1990, 42 U.S.C. 12101, et seq. (P.L. 101-336) [ADA].


(Ca. Civil Code 54(c)):
It is the intent of the Legislature in enacting [the DPA] to strengthen
California law in areas where it is weaker than the Americans with
Disabilities Act of 1990 [citation] and to retain California law when it
provides more protection for individuals with disabilities than the
[ADA]. (Stats. 1992, ch. 913, 1, p. 4282.) (emphasis added).
Established more than 20 years before the federal ADA (see Stats. 1968, Ch.
461), the DPA was amended after enactment of the ADA to provide additional
state protections. The amendments were but one part of a broad enactment,
originating as Assembly Bill No. 1077 (1991-1992 Reg. Sess.), that sought to
conform many aspects of California law relating to disability discrimination (in
employment, government services, transportation, and communications, as
well as public accommodations) to the ADA. (See Assem. Com. on Judiciary,
Rep. on Assem. Bill No. 1077 [1991-1992 Reg. Sess.] as amended Jan. 6,
1992, pp. 1-4 [digest]). Part of Californias law requires that certain
government entities and businesses positively accommodate the disabled.
However, at issue in this case are the parts of the DPA that prohibit
discrimination on the basis of disability.
A.

The DPA prohibits discrimination


Discrimination is different than accommodation. According to the

Merriam-Webster dictionary, the first definition of accommodation is


something supplied for convenience or to satisfy a need. (underline added.)
That same dictionary defines discrimination as prejudiced or prejudicial
outlook, action, or treatment.
12

Simple discrimination occurs when an entity treats an individual


differently from others despite the fact the person is equal in respect to all
relevant characteristics. (See Market Discrimination and Groups, Mark
Kelman, 53 Stan. L. Rev. 833, 880, note 24, 840 (2001).) A relevant
characteristic is one that does not affect the entitys economic function
negatively, meaning that the entity experiences no additional costs from not
discriminating. (Id. at note 24, 841.) Hence, plaintiffs asserting the right to be
free from simple discrimination are asking only that entities treat them equally
in respect to others.
In contrast to an individual seeking relief from simple discrimination, an
individual who requests an accommodation is asking the entity to expend
money or to endure a cost to provide an affirmative change. (Id. at note 24,
835.) Accommodation requires more than simply not doing something.
Accommodation is a positive action that requires an expenditure or change.
For example, a person might say we must accommodate that person by
widening the aisles when using the word accommodate. On the other hand,
when referring to discrimination, a person would say we cannot discriminate
against her. Unlike accommodation, which requires a positive action,
discrimination means to not do something that adversely affects someone else.
By not taking action to ban medical marijuana collectives, a county does not
accommodate patients, but rather refrains from discriminating against them.

13

The DPA, through Ca. Civ. Code 54(c), includes a sweeping


prohibition of practices by local governments that discriminate against people
with disabilities by providing that no qualified individual with a disability
shall be subjected to discrimination by any such entity.2

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.

The Defendants/Appellants are qualified protected individuals


under Ca. Govt Code 12926 and 12926.1
In Ca. Govt Code 12926.1(c), the Legislature provides that:

The DPA is independent of federal disability law. However, through Ca.


Civ. Code 54(c), it includes the protections of rights included in federal
law, specifically 42 U.S.C. 12132, part of Title II of the Americans with
Disabilities Act.
14

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.

California law incorporates, strengthens, and reinforces


protections that prohibit municipal and state laws that facially or
by operation discriminate against the disabled
Ca. Civil Code 54(c), part of the DPA, provides that [a] violation of

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

In Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 94 Cal.Rptr.3d 685,


208 P.3d 623, the California Supreme Court held:
As to ADA violations, the overlap is plainly deliberate, the Legislature
having specified that ADA violations are also violations of both the
16

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

Unruh Civil Rights Act, Ca. Civil Code 51, et seq.

See, e.g., Qualified Patients, 187 Cal.App.4th at 763 [Plaintiffs contend


[the ordinance] violated civil rights protected by the Unruh Civil Rights Act.
(See Civ. Code, 51, subd. (b); see generally 8 Witkin, Summary of Ca.
Law (10th ed. 2005) Constitutional Law, 898(2), p. 376.) (emphasis
added).].
17

followed, e.g., Burnett v. San Francisco Police Department (1995) 36


Cal.App.4th 1177, 42 Cal.Rptr.2d 879, (By its plain language, [Unruh] bars
discrimination based on sex, race, color, religion, ancestry, national origin, or
disability by business establishments. Id. at pp. 1191-1192).
Here, section 51(f) of Unruh incorporates the protections of rights
included in the entire ADA, including title II. Title II of the ADA applies to
public entities not to business establishments. (42 U.S.C. 12131(2)). In
Munson, supra, the state Supreme Court refused to restrict, artificially and
contrary to the statutory language, the types of ADA violations remediable
under [Unruh section 51(f)]. (Id. at 675). Given that title II applies to public
entities and not to business establishments, it follows that Unruh, through
section 51(f), protects against municipal discrimination.
While substantial parts of the DPA provide that entities shall
accommodate disabled individuals and shall not discriminate against them,
Unruh is more substantially focused on the elimination of discrimination. (Ca.
Civil Code 51(f).) Accordingly, the integration of Title II protections into
both Unruh and the DPA show the Legislature intended to provide broader
protections than the ADA and to ensure stronger protections prohibiting
discrimination than the federal law.

18

2.

California law integrates the protections of rights


included in the ADA and overrides that federal laws
definitions of disability and unlawful drug use

The ADA creates a floor for disability access rights, expressly


authorizing the states to impose equivalent or stricter disability access
obligations:
Nothing in this Act shall be construed to invalidate or limit the
remedies, rights, and procedures of any Federal law or law of any State
or political subdivision of any State or jurisdiction that provides greater
or equal protection for the rights of individuals with disabilities than are
afforded by this Act. (42 U.S.C. 12201(b).)
This anti-preemption provision repudiates any congressional interest in
national uniformity of disability discrimination standards. (Compare, e.g.,
Geier v. American Honda Motor Co. (2000) 529 U.S. 861; then Cipollone v.
Liggett Group, Inc. (1992) 505 U.S. 504). With this anti-preemption provision,
Congress explicitly stated that it did not intend to impose uniform disability
discrimination protections or to preclude the states from establishing more
inclusive and stringent protections.
Both sections 54(c) and 51(f) refer specifically to violation of a right.
The sections do not incorporate the ADAs restrictions where California law is
more inclusive or protective. For example, Californias definition of a
disabled individual omits the word significantly from the ADAs
significantly limits a major life activity phrase. The DPA uses the California
definition rather than the more restrictive meaning set forth in the ADA. This

19

comports with the 42 U.S.C. 12201(b) provision that states may be more
protective and inclusive of disabled individuals.
D.

Californias medical marijuana laws were enacted for individuals


who are protected by the DPA.
Unlike Colorado and Washington citizens, Californians only approved

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.

The MMPA refers directly to disability law

At Ca. Health & Safety 11362.7(h) 5, et seq., the Legislature defined


the serious medical conditions for which medical cannabis may be
recommended by a doctor:
Serious medical condition means all of the following medical conditions:
(1) Acquired immune deficiency syndrome (AIDS); (2) Anorexia; (3)
Arthritis; (4) Cachexia; (5) Cancer; (6) Chronic pain; (7) Glaucoma; (8)
Migraine; (9) Persistent muscle spasms, including, but not limited to,
spasms associated with multiple sclerosis; (10) Seizures, including, but
not limited to, seizures associated with epilepsy; (11) Severe nausea; (12)
Any other chronic or persistent medical symptom that :
(A) Substantially limits the ability of the person to conduct one or
more major life activities as defined in the Americans with
Disabilities Act of 1990 (Public Law 101-336). (Emphasis
added).
After enumerating specific ailments, all of which qualify a person for
protection under the DPA and Unruh, the Legislature included a catch-all

Part of the Medical Marijuana Program Act (Stats. 2003, Ch. 875) (enacted
2003, effective 1/1/2004) [MMPA].
21

directly referencing the ADAs more stringent substantially limits a major


life activity definition. (Ca. Health & Safety Code 12362.7(h)(12)(A).) By
limiting the people who can be recommended medical marijuana to those who
suffer from conditions that substantially limit a major life activity, the
Legislature ensured that anyone with such a recommendation is necessarily
protected under the separate DPA and Unruh laws, which, in order to protect a
person from discrimination by local governments, require only a limit on major
life activities not a substantial limitation. Given the group of people who are
eligible for medical marijuana is limited to what can only be a larger group
protected by the states separate disability laws, medical marijuana patients
properly recommended cannabis by doctors the only people who are covered
by the CUA and MMPA are protected by the DPA and Unruh.
2.

The collective at issue here has standing to assert a DPA


discrimination claim

Section IV(A)(2) of the 2008 California Attorney General Guidelines


for the Safety and Non-Diversion of Marijuana Grown for Medical Use states a
collective is a business or farm jointly owned and operated by its
members. Under that same section, a collective may only consist of
members who are medical cannabis patients with doctor prescriptions or their
properly designated primary caregivers. Accordingly, in this case, Collective
serves a class of individuals with discrimination claims; the interests at issue
are germane to Collectives purpose; and no individual participation in a
lawsuit challenging the Countys discriminatory laws is necessary. The DPAs
22

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.

The MMPA decriminalizes distribution of medical marijuana


solely for people independently protected from discrimination
by the DPA and Unruh

While the CUA is limited to decriminalization of marijuana use,


possession, and cultivation (Ca. Health & Safety Code 11362.5(b)(1)(A)(C)), the limits on what qualifies as a condition for those criminal law
exceptions to apply is more expansive than what is included in the MMPA. In
the CUA, Californias voters asked the state government to create a system for
the affordable and safe distribution of medical cannabis to patients in medical
need thereof:
Indeed, the CUA itself directed the state to create a statutory plan to
provide for the safe and affordable distribution of medical marijuana
to qualified patients. ( 11362.5, subd. (b)(1)(C).) Thus, in enacting
section 11362.775 the Legislature created what the CUA
expressly contemplated and did not unconstitutionally amend the
CUA. (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1014)
(emphasis added.)

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.

The actions taken against the patients improperly discriminate


against them as well as other disabled individuals
The California State Constitution grants cities and counties the police

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

of Willowbrook v. Olech (2000) 120 S.Ct. 1073 (arbitrary and discriminatory


zoning violates equal protection).)
1.

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.

The law at issue targets medical marijuana collectives and


dispensaries but does NOT target medical clinics, methadone
clinics, and pharmacies, all of which are comparable uses

In City of Cleburne v. Cleburne Living Center (1985) 473 U.S. 432


[Cleyburn], the Court was confronted with city council action that singled out
group homes for the mentally retarded, requiring that use to apply for and be
granted a special use permit, which other residential users were not required to
obtain. The city defended both the separate procedure and its permit denial on
the grounds they were rationally related to legitimate government purposes,
inter alia, controlling congestion, securing serenity of the neighborhood,
protecting safety of the residents.
Justice White, writing for the Court, set forth the appropriate mode of
analysis, asking: May the city require the permit for this facility when other
care and multiple-dwelling facilities are freely permitted? The city could not
treat this facility differently, he said, unless [it] would threaten legitimate
interests of the city in a way that other permitted uses such as boarding
houses and hospitals would not. (473 U.S. at 448 (emphasis added).) The
Court then carefully examined each proffered reason, but did not merely ask if
it were in some abstract way one of the issues a city could be concerned with,
but compared the impact of the excluded use to similar permitted uses. The
Court determined that the similar uses permitted in the zone could not be
distinguished by impact on the community. Accordingly, the Court held the
citys reasons fail rationally to justify singling out [a group home for the
26

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.

The Defendants/Appellants alleged evidence of per se


discrimination by Los Angeles County

In Regional Economic Community Action Program, Inc. v. City of


Middletown (2d Cir. 2002) 294 F.3d 35 [RECAP], the court quoted several city
officials in support of its conclusion that the plaintiffs disabilities were a
motivating factor behind a decision to deny a permit to a home for recovering
alcoholics. In that case, the Mayor said:
And what I have tried to convey to RECAP and through different
surrogates is that enough is enough Middletown is not the hub of
human services programs Do [this program] in some other
community that has not contributed to the extent, not even close to
what Middletown has contributed in regards to participation and
human service programs. (294 F.3d at 50.)
27

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.

Medical marijuana patients are protected at least as much as


methadone patients are protected under the DPA

Methadone is a substance used to help former heroin-addicts escape the


bonds of addiction and illegal drug use. It is an opiate and is also prescribed to
patients suffering from conditions that cause significant pain. A person who
begins methadone treatment and who no longer uses heroin is qualified for
Title II protection under the DPA. So are the patients in great pain prescribed
methadone. A cursory review of similar local laws banning methadone clinics
in Los Angeles County revealed no code section that references the word
methadone. Moreover, a quick Web search for the words methadone in
the subject area revealed a number of addiction medicine providers.
In Bay Area Addiction Research and Treatment, Inc. v. City of Antioch
(9th Cir. 1999) 179 F.3d 725, a methadone clinic sued the City of Antioch after
it adopted an ordinance prohibiting methadone clinics through a spacing
requirement. (Id. at 727-28.) The court in that case concluded that the
ordinance was facially discriminatory and a per se violation of Title II because
it subjected methadone clinics, but not other medical clinics, to spacing
limitations. (Id. at 734-35.) Having reached this conclusion, the court said that
the only remaining inquiry was whether the individuals treated at the
methadone clinic pose a significant risk to the health or safety of others. (Id. at
735, 737.) The case was remanded with instructions that the trial court
consider the significant risk test specifically as to the plaintiff methadone clinic
and its patients. (Id. at 737.) The significant risk test is not a disconnected
29

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.

Through disparate impact, a state or local law can


discriminate against disabled individuals

Facially neutral statutes that effectively discriminate against the


disabled also violate the DPA. (Crowder v. Kitagawa (9th Cir. 1996) 81 F.3d
1480.) In Crowder, the Court found that the State of Hawaiis mandatory
canine quarantine statute, although facially neutral, had a disparate impact on
the disabled:
Although Hawaii's quarantine requirement applies equally to all
persons entering the state with a dog, its enforcement burdens
visually-impaired persons in a manner different and greater than it
burdens others. (Id. at 1483) (emphasis added.)
30

In Crowder, the blind plaintiff required a seeing eye dog in order to


meaningfully use public services such as public transportation, public parks,
government buildings and facilities, and tourist attractions. (Id. 1484.) It was
not necessary for the state to provide the seeing eye dog for the disabled
individual. Rather, discrimination occurred when the operation of Hawaiis
law adversely impacted the disabled plaintiff. (Id.) The court concluded that
the quarantine requirement is a policy, practice or procedure which
discriminates against visually-impaired individuals (Id. at 1485.) The
Court did not require the blind plaintiff to use an alternative treatment or aide
such as a human guide or walking stick in lieu of the seeing eye dog.7
Instead, the public entitys offending law, whether facially neutral or
intentionally discriminatory, must be modified or stricken so as not to
adversely impact the disabled. Important in Crowder is the reference to
accommodation by the state through a facially neutral law. Here, Section 2701
is not facially neutral and the issue is not accommodation, but rather is the
elimination of facially discriminatory laws.
F.

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

Section 12132 of the ADA precludes (1) exclusion from/denial of


benefits of public services, as well as (2) discrimination by a public entity.
(Crowder, 81 F.3d at 1483.)
31

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
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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
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use a dispensary they are members of a collective -- to obtain the medication


prescribed by their respective doctors. They are not required to use
Oxycontin and they do not have to cultivate on their own. Nor does the county
or state have to build dispensaries for them. Rather, government entities
cannot pass laws or engage policies that facially discriminate against what can
only be a class of disabled people.
G.

The claims in this case do not involve accomodation


Limited in scope and focused on rights to be accommodated that are not

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.
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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.

The Riverside case has nothing to do with discrimination


The court in People v. Bradley (1998) 75 Cal.Rptr.2d 244, 64

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

not considered in its decisions. (Citations.) (Id. at 249-50.) Throughout its


moving papers and complaint, the County refers to City of Riverside v. Inland
Empire Patients' Health and Wellness Center, Inc. (2013) 56 Cal. 4th 729 and
is entirely reliant upon that case in seeking pre-trial injunctive relief. Given it
has been established that municipal ordinances cannot violate state antidiscrimination laws, whether the state Supreme Courts holding in Riverside
considered and decided discrimination issues is dispositive in terms of the
Countys argument. A quick word-search on the computer of the Supreme
Courts Riverside decision for the letters discrim yields no results. Indeed,
the sole issue in Riverside was whether permissive municipal zoning codes that
exclude medical marijuana collectives as a use or outright bans of them by
municipalities are preempted by the states CUA or MMPA. The Supreme
Court did not consider the discrimination issue in Riverside. No matter how
expansive the County asserts the Riverside case is, the issue of discrimination
against a class protected by state law is nowhere mentioned in and was not
considered by the Supreme Court. It follows that, under Bradley, supra, the
Riverside decision is not an authority in regard to those issues. Hence, the
likelihood of success on the merits in the Countys case here is far different
than in cases where discrimination has not been alleged, argued and proven.
Here, there is a strong likelihood the Citys ordinance is, like the ordinance in
Pacific Shores, invalid.

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II.

CONGRESS HAS PROVIDED AN OTHER PROVISION


OF FEDERAL LAW THAT OVERRIDES THE ADA
DISQUALIFICATION DECISION IN JAMES V. COSTA
MESA

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

authorization requirement in 12210(d)(1) and that the particular ADA


exception in that section allowing use of a drug under supervision of a licensed
health care professional required that use be authorized under the CSA.
A.

Sec.538 of P.L. 113-265 is an other provision of federal law


under the ADAs 12210(d)(1) illegal drug use exception.
The 2012 decision in James is no longer operative. Between March 1,

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.

Section 538 provides an other provision of federal law that


overrides the James decision
In addition to the use under supervision by a licensed health care

professional exception, section 12210(d)(1) also provides an exception for


38

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
39

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

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