County of Los Angeles v. Acme Silver Place

7/23/2019 County of Los Angeles v. Acme Silver Place

1/48

No.: B262874

IN THE

{ourt

of ~ p p e a

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


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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 2701TARGETS 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. THEDPAPROHIBITSDISCRIMINATION....................................................... 12

B. THE DEFENDANTS/APPELLANTS ARE QUALIFIED PROTECTED INDIVIDUALS

UNDER CA.GOVT CODE 12926AND 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


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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

DPAFROM DISCRIMINATION........................................................................... 31

G. THE CLAIMS IN THIS CASE DO NOT INVOLVEACCOMODATION.................. 34

H. THERIVERSIDECASE 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.538OF P.L.113-265IS AN OTHER PROVISION OF FEDERAL LAW

UNDER THE ADAS 12210(D)(1)ILLEGAL DRUG USE EXCEPTION. .................. 38

B. SECTION 538PROVIDES AN OTHER PROVISION OF FEDERAL LAWTHAT

OVERRIDES THEJAMESDECISION..................................................................... 38

CONCLUSION .................................................................................................. 39CERTIFICATE OF COUNSEL ......................................................................... 40

PROOF OF SERVICE BY MAIL ..................................................................... 41


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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. LiggettGroup, 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


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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


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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. 101-

336) .......................................................................................................... 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


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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 CaliforniaAttorney 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


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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 discriminatesagainst protected individuals in violation of the

CaliforniaDisabled 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 theRiversidecase 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?


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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.


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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


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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.)


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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? (DarylDitterbrand,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.)


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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


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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 MIGHTHELP, 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.)


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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 THATOUR 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


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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 decision-

maker 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 decision-

maker 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 Actwhich 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


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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


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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.


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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

novostandard 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); seeDonald v Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 176181.)

The DPA protects seriously ill and disabled persons by incorporating

and strengtheningthe protections provided for in the federalAmericans with

1 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 hadfiled ancillary jurisdiction claims under both Unruh Civil Rights Act andDisabled Persons Act].


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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 theAmericans with

Disabilities Act of 1990[citation] and to retain California law when itprovides 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 (seeStats. 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. (SeeAssem. 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 accommodatethe disabled.

However, at issue in this case are the parts of the DPA that prohibit

discriminationon the basis of disability.

A. TheDPAprohibitsdiscrimination

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 discriminationas prejudiced or prejudicial

outlook, action, or treatment.


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Simple discriminationoccurs when an entity treats an individual

differently from others despite the fact the person is equal in respect to all

relevant characteristics. (SeeMarket 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 note24, 841.) Hence, plaintiffs asserting the right to be

free from simple discriminationare 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 accommodationis asking the entity to expend

money or to endure a cost to provide an affirmativechange. (Id.at note24,

835.) Accommodation requires more than simply not doing something.

Accommodation is apositiveaction 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

accommodatepatients, but rather refrains from discriminatingagainst them.


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

prohibition of practices by local governments that discriminateagainst 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:

2 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.


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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 theAmericans withDisabilities 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


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limit on a major life activity while the more restrictive state medical marijuana

program law requires a person have a condition that substantially limitsa

major life activity in order to be prescribed medical marijuana under its catch-

all 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 individualunder the ADA, also constitutes a violation of this

section. (Emphasis and underline added noting the rightsare 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 DPAand the Unruh Civil Rights Actprohibit

municipal laws that discriminate against the disabled

InMunson 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


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Unruh Civil Rights Act( 51, subd. (f)) and theDisabled 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 individualunder the federalAmericans

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 Actexpressly 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 Patientssought 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

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

4 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.(SeeCiv. Code, 51, subd. (b); see generally 8 Witkin, Summary of Ca.Law (10th ed. 2005) Constitutional Law, 898(2), p. 376.) (emphasisadded).].


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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 Unruhincorporates the protectionsof 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

accommodatedisabled individuals and shall not discriminate against them,

Unruhis more substantially focused on the elimination of discrimination. (Ca.

Civil Code 51(f).) Accordingly, the integration of Title II protections into

both Unruhand the DPA show the Legislature intended to provide broader

protections than the ADA and to ensure stronger protections prohibiting

discriminationthan the federal law.


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2. California law integrates the protections of rights

included in the ADAand 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


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comports with the 42 U.S.C. 12201(b) provision that states may be more

protectiveand inclusiveof 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 medicalpurposes, 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 illCalifornians have the right to obtain anduse marijuana for medical purposes where that medical use is deemed

appropriate and has been recommended by a physicianwho 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

medicaldoctors. (Ca. Health & Safety 11362.5.) When they enacted the

CUA, the voters limited the operativeprovisions of their ballot initiative to

decriminalizinguse, 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),


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the voters made clear they intended their law apply only to seriously ill and

disabled individuals with medicalrecommendations 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 theAmericans 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

5 Part of theMedical Marijuana Program Act(Stats. 2003, Ch. 875) (enacted2003, effective 1/1/2004) [MMPA].


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directly referencing the ADAs more stringent substantially limits a major

life activity definition. (Ca. Health & Safety Code 12362.7(h)(12)(A).) By

limitingthe people who can be recommended medical marijuana to those who

suffer from conditions that substantiallylimit a major life activity, the

Legislature ensuredthat anyone with such a recommendation is necessarily

protected under the separate DPA and Unruhlaws, which, in order to protect a

person from discrimination by local governments, require only a limiton 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 CaliforniaAttorney General Guidelines

for the Safety and Non-Diversion of Marijuana Grown for Medical Usestates 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


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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 clinichas

standing to bring a discrimination claim for the addicted people it serves has

held such clinics indeed have standing. (SeeAddiction Specialists, Inc. v.

Township of Hampton(3d Cir.2005) 411 F.3d 399, 405-07.)

3. The MMPAdecriminalizes distribution of medical marijuanasolely for people independently protected from discrimination

by the DPAand Unruh

While the CUA is limited to decriminalizationof 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

needthereof:

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 contemplatedand did not unconstitutionally amend the

CUA. (People v. Hochanadel(2009) 176 Cal.App.4th 997, 1014)

(emphasis added.)


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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 courtfunctus 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


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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 respectivedisabilities

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 onlybe 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 forconditions 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

discernbetween 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.)


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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

interestsof the city in a way that other permitted usessuch 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


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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

InRegional 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.)


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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 plaintiffsprima faciecase.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.

6Horizon 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 768-76.


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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.

InBay 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 aper seviolation 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


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statement by a city official that a use causes crime. In fact, such a statement

is evidence ofper sediscrimination. 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 leastas much as the

methadone patients in theBay Areacase. 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 candiscriminate 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.)


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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 procedurewhich

discriminates against visually-impaired individuals (Id. at1485.) 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 Crowderis the reference to

accommodationby the state through afacially neutral law. Here, Section 2701

is notfacially neutral and the issue is not accommodation, but rather is the

elimination offacially discriminatorylaws.

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 nostate law

7 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.)


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authorizing a variety of things that are used by people protected under the

DPA. There is norequirement 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 mitigationrelied 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 faciallyoperates 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 operationof the canine-quarantine law that, when applied,

discriminated against certain people who use dogs when they have a disability

that then required accommodation under thefacially neutrallaw for the

adversely impacted patients. Here, the law is faciallydiscriminatory 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 Crowderdetermined the state of Hawaii had addressed a

very important issue related to public safety when it enacted its canine-

quarantine 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 trulysick 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 Crowderwho 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 involveaccomodation

Limited in scope and focused on rightsto be accommodated that are not

present in the states medical marijuana law is theRoss 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 accommodatehis

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 theRoss case. Indeed, a detailed

reading shows there is no mention of employment protections in either the

CUA orMMPA. A reading of FEHA shows it carefully details, in-part for

economic policy reasons, the burdensit places on employers. Much of the

Courts opinion inRossfocused 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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35

Unlike the plaintiff inRoss, the patients here are not seeking

employment accommodation rights under FEHA. Indeed, the patients here are

not claiming any right of accommodationat all. Very different than FEHA, the

provisions of the DPAdefine 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, theRossholding limited to FEHA and

accommodationis inapplicable.

H. TheRiversidecase 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


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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 anti-

discrimination laws, whether the state Supreme Courts holding inRiverside

considered and decided discrimination issues is dispositive in terms of the

Countys argument. A quick word-search on the computer of the Supreme

CourtsRiversidedecision for the letters discrim yields no results. Indeed,

the sole issue inRiversidewas 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 inRiverside. No matter how

expansive the County asserts theRiversidecase 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, underBradley, supra, the

Riversidedecision 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 INJAMES V. COSTA

MESA

In its papers, the County citedJames 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 theADA. 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 theJamescase

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

impliedfederal Controlled Substances Act(21 U.S.C. 801, et seq.) [CSA]


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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 inJamesis 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 theJamesdecision

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

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


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39

other provisions of federal law. Although the Plaintiffs inJamesargued 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

legislaturewhen it legislated allowing medical marijuana for Washington D.C..

Now, Congress has acted as the federal sovereignby enacting Sec.538 which

prohibits use of funds by the federal Department of Justice from preventing 32

states and the District of Columbia from implementingtheir own State laws

that authorize the use, distribution, possession, or cultivation of medical

marijuana. State marijuana laws cannot be implemented without patients using

medical marijuana. It follows there is now an other provision of federal law

under section 12210(d)(1) of the ADA that provides an exception for the use of

medical marijuana by patients who remain qualified for ADA protection.

Moreover, Congresss action does not just provide for patient use it provides

for distribution, possession and cultivation of marijuana.

CONCLUSION

The preliminary injunction issued by the trial court was based on a law

that violates the CDPA and ADA. Accordingly, the law is unconstitutional and

the erroneous trial court decision must be REVERSED.

Respectfully submitted on November 22, 2015:

_________________________________

Matthew Pappas, SBN: 171860


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CERTIFICATE OF COUNSEL

Counsel for Appellants hereby certifies that, pursuant to Rule 14(c)(1) of

the California Rules of Court, the enclosed OPENING BRIEF ON THE

MERITS was produced using 13-point Times New Roman proportional font

and contains approximately 9,694 words excluding the table of contents, table

of authorities, cover page, and this certificate. In arriving at this estimate,

counsel selected the parts of the document excluding the aforementioned tables

and cover page and retrieved the count of words provided by the Microsoft

Word 2010 word processing software used to produce the document.

I hereby certify the aforementioned certification is true and correct under

penalty of perjury under the laws of the state of California.

DATED: November 22, 2015:

________________________________

Matthew Pappas

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