Filed 12/30/13 Modiano v. City of A naheim CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

MARTIN MODIANO et al.

Plaintiff s and Appellants ,

v.
CIT Y OF ANAHEIM et al

. , Defendant s and Respondents

. G04 8303 (Super. Ct. No. 30

- 201 2

- 00601853 )

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed.

Matth e w Pappas and Lee Durst for Plaintiffs and Appell ants. Michael R.W. Houston, City Attorney, and Moses W. Johnson, IV, Assistant City Attorney, for Defendants and Respondents.

Best Best & Krieger and Jeffrey V. Dunn, for City of Riverside as Amicus
C uriae on behalf of Defendants and Respondents.

* * *2 Martin Modiano, Helaine Jones, Kevin Butcher, and Marla James, as disabled patients and members of Patient Med

- Aid, a collective organized under the Compassionate Use Act of 1996 (CUA ; Health & Saf. Code, § 11362.5 ; all further undesignated statutory refer ences are to this code ) and California’s Medical Marijuana Program (MMP; § 11362.7 et seq.), and Patient Med

- Aid itself (collectively referred to as “Modiano,” under the lead plaintiff’s name) appeal from the trial court’s d ecision denying their request fo r a declaratory judgment that the City of Anaheim’s (the city’s) ban on medical marijuana dispensaries violates the Disabled Persons Act (DPA; Civ. Code, §§ 54 et seq.). Modiano also argues the city’s efforts to aid federal authorities in shutting down the Patient Med

- Aid dispensary violated the bar on the illegal use of local government funds (Code Civ. Proc., § 526a) , “by spending taxpayer money to call in the federal government” despite state medical marijuana law authorizing dispensaries. These contentions, however, are simply variations on the core preemption claim resolved in City of Riverside v. Inland Empire Pa tients Health And Wellness Center, Inc. (2013)
56 Cal.4th 729 ( Inland Empire ). Inland Empire determined state medical marijuana law does not preempt total local bans, and therefore it follows that dispensaries are not a lawful source of medical marijuana for disabled persons if banned under local law. W e are bound by that conclusion. ( Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455 (

Auto Equity ) .) We therefore affirm the judgment. Having noted the rel evant background at the outset , we turn immediately to our discussion of Modiano’s claims.3 I
DISCUSSION Modiano contends the city’s ban against dispensaries violates the DPA by discriminating against seriously ill and disabl ed persons who are protected by the DPA
because of medical conditions that “limit a majo r life activity.” ( Govt. Code, § 12926.1.)
He distinguishes between municipal enactments that discriminate and those ensuring
accommodation of the disabled in the sense of “something supplied for convenience or to satisfy a need.”

Modiano observes that portions of the DPA require that certain government entities and businesses positively accommodate the disabled, but he does not re ly on those provisions here. He specifically disclaims any notion local governments must “‘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 i n this case. Here, the patients are not arguing the government must build covered marijuana smoking areas.” Similarly, he acknowledges “ 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.”

But Modiano contends “the DPA prohibits discriminatory laws that facially or by operat ion discriminate against such [mitigation] entities that can only provide for [disabled] patients.” He likens dispensaries operated at collectives conforming to state medical marijuana law to methadone clinics protected under the Americans with
Disabiliti es Act (ADA) against local “not i n my backyard” discrimination.4 For example, Modiano relies on Bay Area Addiction Research and Treatment, Inc. v. City of Antioch (9th Cir. 1999) 179 F.3d 725, where a methadone clinic sued on behalf of its patients to ov erturn a city ordinance effectively prohibiting
methadone treatment centers by means of a 500

- foot exclusion zone from residential

areas . The Ninth Circuit explained local land

- use zoning decisions are not exempt from the ADA’s anti

- discrimination provisi ons and found the ordinance facially discriminatory because it subjected methadone clinics, but not other medical clinics, to the spacing
limitation. Cautioning that general concerns about crime were insu fficient, the court
remanded for the trial court to conduct a hearing on whether individuals using the clinic would pose a significant risk to local public health and safety . On remand, the district court found no threat given the clinic’s safety procedures and therefore enjoined the ordinance. ( Bay Area Addiction Research and Treatment, Inc. v. City of Antioch (N.D. Cal. March 16, 2000) [ 200 0 WL 33716782, pp. 11

- 12 ] .)

Modiano acknowledges a divided panel of the Ninth Circuit has concluded the ADA does not apply to prohibit ordinances banning medical mar ijuana dispensaries , reasoning the ADA impliedly incorporates the federal Controlled Substances Act’s (CSA’s) designation of marijuana as an illegal drug serving no acceptable medical need, and therefore the ADA’s exclusion for disabled individuals using i llegal drugs applied. ( James v. City of Costa Mesa (9th Cir. 2012) 700 F.3d 394, 403 ( James ) .)

The majority in James held the ADA’s express exception stating “[t]he term ‘illegal use of drugs’ .

. . “does not include the use of a drug taken under supervision by a licensed health care professional ” (42 U.S.C. § 12210(d)(1)) did not apply to physician recommendations under state law for the use of medical marijuana because that “would allow a doctor to recommend the use of any controlled substance

— including5

cocaine or heroin

— and thereby enable the drug user to avoid the ADA’s ill egal drug exclusion. Congress c ould not have intended to create such a capacious loophole [to the CSA], especially through such an ambiguous provision.” ( James , supra , 7 00 F.3d at
p. 403.) As Modiano notes, however, the Legislature has specified in the C UA and MMP that the use of medical marijuana by qualified patients is not illegal under state law and, on appeal, he relies solely on state law and the DPA, not the ADA, for his discrimination
claim. (See Govt. Code, § 12926.1 [“The Legislature finds and declares .

. . [¶] .

. . The law of this state in the area of disabilities provides protections independent from those in
the federal Americans with Disabilities Act of 1 990”].)

In particular, Modiano invokes the DPA’s “sweeping prohibition of [government] practices that discriminate against people with disabilities by” incorporating in Civil Code section 54, subdivision (c), th e proscription that “no qualified
individua l with a disability shall .

. . be subjected to discr imination by any such entity.” ( Cf. 42 U.S.C. § 12132.) Modiano argues the city’s ban on medical marijuana dispensaries uniquely targets the disabled because only patients with substantial medical disabilities qualify to obtain marijuana cultivated at a dispensary collective. Indeed, Modiano points out that the qualifiying medical conditions necessary to use medical marijuana are more restrictive than those to qualify for protection under the DPA.

Specifically, the MMP defines a “Serious medical condition” qualifying
one to use med ical marijuana to include AIDS, anorexia, arthritis, multiple sclerosis muscle spasms, epilepsy seizures, and “other chronic or persistent medical symptom[s]
that .

. . “ [s]ubstantially limits the ability of the person to conduct one or more major life
activities as defined in the Americans with Disabilities Act of 1990 .

. . [or,] [i]f not alleviated, may cause serious harm to the patient’s safety or physical or mental health.”6

( § 11362.7, subd. (h)(1)

- (12) & (h)(A), (B).) The DPA enumerates similar qualifying conditions, including “HIV/AIDS, hepatitis, epilepsy, seizure disorder

. . . ,” but also expressly provides that “the Legislature has determined that the definit ions o f ‘physical disability’ and ‘mental disability’ under the [DPA] require a ‘limitation’ upon a major life activity, but do not require, as does the federal Americans with Disabilities Act of 1990, a ‘substantial limitation.’ This distinction is inte nded to result in broader coverage
under the law of this state than under that federa l act.” ( Govt. Code, § 12926.1,
subd. (c).) Given the DPA’s broad reach, Modiano complains the city’s ban has no effect on individuals who by virtue of their fortunate g ood health may not lawfully use medical marijuana, but instead discriminates solely and directly against those who meet the definition of a disabled person under the DPA. 1

The problem with Modiano’s argument is that the Supreme Court has determined the medical marijuana activities “ authorized by law ” under California’s medical marijuana program (§ 11362.768, subd. (e)) may be countermanded by local government bans. The cour t held in Inland Empire that a city ban on medical marijuana dispensaries is not preempted by California medical marijuana law. The court did not

1 Amicus curiae City of Riverside argues the CSA preempts state law purporting to legalize marijuana, and therefore there can be no violation of the DPA because dispensaries are not a lawful source of medical marijuana under federal law. We rejected the not ion of federal preemption in Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 735, 761. We explained the “‘unstated predicate’” of the federal preemption thesis is “ ‘that the federal government i s entitled to conscript a state’s law enfo rcement officers into enforcing federal enactments, over the objection of that state

. . .’” ( ibid .) , or similarly conscrip t the enactment or interpretation of state law to meet federal objectives. “The Federal Government,” however, “may neither issue dir ectives requiring the States to address particular p roblems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal r egulatory program.” ( Printz v. United States (1997) 521 U.S. 898, 935 .)7

cite or discuss Civil Code section 3482, which provides: “Nothing which is done or maintained under the expr ess authority of a statute can be deemed a nuisance.” It appears the court implicitly determined Civil Code section 3482 does not apply because “state law does not ‘authorize’ activities, to the exclusion of local bans, simply by exempting
those activitie s from otherwise applicable state prohibitions.” ( Inland Empire , supra , 56 Cal.4th at p. 758.) Justice Liu observed in his concurrence that “[i]f such legislative authorization were clear, then the ordinance in question might well be preempted.” ( Id.

at p. 764.) Justice Liu concluded, however, that “[b]ecause state law does not clearly authorize or intend to promote the operation of medical marijuana dispensaries, I agree that the City of Riverside’s prohibition on such dispensaries is not preempted.” ( Id. at
p. 765.) But neither the concurring justice, nor the opinion of the court addressed the Legislature’s amendment to the MMP in 2010 suggesting that in complying with state medical marijuana law “a medical marijuana cooperative, collective, dispensa ry, operator, establishment, or provider .

. . is authorized by law to possess, cultivate, or distribute medical marijuana .

. . .” (§ 11362.768, subd. (e), italics added.) 2

The practical effect of Inland Empire is that a medical marijuana cooperative, c ollective, dispensary, operator, establishment or provider authorized under state medical marijuana law to conduct its activities is not “authorized by law to possess, cultivate, or distribute medical marijuana” (§ 11362.768, subd. (e)) unless also authori zed

2 Speci fically, the terms of section 11362.768, subdivision (e), provide that the Legislature’s enactment in 2010 requiring a 600

- foot radius between schools and dispensaries with a storefront or mobile retail outlet “shall apply only to a medical marijuana coope rative, collective, dispensary, operator, establishment, or provider that is authorized by law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a local business license.” Th e Legislature therefore contemplated that some dispensaries are “authorized by law.”8

by local law to do so. Under this rationale, a local government also may ban qualified
individuals from cultivating and using medical marijuana at home , given the primacy of
local land

- use decisionmaking in Inland Empire . By the same reasoning, a disabled person may not look to a dispensary as a source of lawful medical marijuana because its medical marijuana activities are not “ authorized by law ” until they are ratified by local law. In other words, state medical marij uana law not only incorporates local dispensary regulations and restrictions (§ 11362 .768, subd. (e)), but also outright bans. Modiano complains this interpretation of state medical marijuana law effectively grants local
authorities a license to discrimin ate against disabled persons by foreclosing a lawful source of medical marijuana to treat their conditions . But under Inland Empire , a source is not lawful unless endorsed by local officials.

This vitiates Modiano’s related claim that the city violated C ode of Civil
Procedure section 526a in turning to federal authoritie s to help shut down the dispensary. That section creates “[a]n action to obtain a judgment, restraining and preventing any illegal expenditure of .

. . a county, town, city or city and county of the state .

. . .” (Italics added.) Modiano asserts city cooperation in any manner with federal authorities to shut down dispensaries constituted an illegal use of local assets , thereby contravening state policy promoting the availability of me dical marijuana for disabled persons and other seriously ill Californians

. But because state medical marijuana law incorporat es under Inland Empire local marijuana regulations and restrictions, including bans, the city’s actions were not illegal under sta te law, nor under city or federal law deem ing medical marijuana illegal. Inland Empire is controlling law

. ( Auto Equity , supra , 57 Cal.2d at p. 455.)9 III
DISPOSITION The judgment is affirmed. 3 The parties shall bear their own costs on appeal.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

3 We deny as irrelevant Modiano’s requests for judicial notice of: (1) a revised U.S. Department of Justice memorandum and other documents suggesting a more lenient fe deral approach to dispensaries that are not engaged in drug trafficking but instead serve the medical needs of their patients; (2) Assembly Bill 2279 (2009), passed by the Legislature to overturn the Supreme Court’s conclusion in Ross v. Ragingwire Telecom munications (2008) 42 Cal.4th 920 [no FEHA violation in terminating employee for marijuana use], but vetoed by the Governor; (3) patents issued by the Uniteds States Patent & Trademark Office based on the antioxidant properties of cannibinoids, to undermin e the CSA’s conclusion marijuana has no medical uses. The documents do nothing to affect the conclusion in Inland Empire that state law does not preempt local bans on dispensaries, and therefore dispensaries are not a lawful source of marijuana for disabled persons.