California Court of Appeal Resoundingly Rejects A Statutory Right To Access Medical Marijuana Shops By The Disabled

Pursuant to the Americans With Disabilities Act (“ADA”) (42 U.S.C. Section 1201, et seq.) and California’s Civil Code Section 54 (the “DPA”), individuals with disabilities are entitled to “the same rights as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities and other public places.” Both state and Federal courts have found that the ADA and the DPA require, among other things, retail stores to have aisles wide enough for wheelchairs, and entrances that accommodate the visually impaired. The question raised in a recent Court of Appeal case, The Kind and Compassionate, et al. v. The City of Long Beach (“Kind and Compassionate”) (LASC Case No. B258806), is whether the ADA, the DPA and other disability statutes prohibit a city from closing marijuana collectives that sold medicinal marijuana to the disabled. In a unanimous decision, the Court of Appeal for the Second Appellate Division found that the City of Long Beach (“City”) did not violate the rights of the disabled by closing the clinics, since the statutes “do[] not entitle anyone to convenient access to marijuana.”

Plaintiffs in Kind and Compassionate were two medical marijuana dispensaries and three medical marijuana patients. The plaintiffs alleged the decision of the City to enforce its municipal ordinances that initially regulated and then entirely prohibited the operation of marijuana dispensaries within the City’s borders violated state and Federal disability statutes. Plaintiffs contended the City’s decision to ban marijuana dispensaries “had a disparate and adverse impact on persons with disabilities.” Plaintiffs argued that under the equal access provisions of the ADA and the DPA, the City was prohibited from regulating or closing marijuana dispensaries. The City’s demurrer to the plaintiffs’ complaint was granted with leave to amend. After the plaintiffs failed to amend, the trial court dismissed plaintiffs’ action.

The Court of Appeal affirmed the trial court’s dismissal. The Court concluded that while the State of California had eliminated criminal and civil sanctions for the use of medical marijuana, the State had not, and could not, “grant a ‘right’ of convenient access to marijuana for medicinal use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local accommodation of medical marijuana cooperatives, collectives, or dispensaries.” The Court reasoned the City’s ban of medical marijuana dispensaries did not discriminate against persons with disabilities “because those persons have no right of convenient access to medicinal marijuana in the first place.” The Court also held that the disability statutes only applied to individuals with disabilities, and not to dispensaries or other vendors.

Because medical marijuana is illegal under 21 U.S.C. Section 801, et seq. (the Controlled Substances Act), a municipality has the right to regulate or ban the sale of medical marijuana without violating state and Federal disability laws. The Kind and Compassionate case creates a bright line for the protections provided under state and Federal disability statutes. While the disabled must be provided “the same rights as the general public,” they are not entitled to rights to which the general public are not entitled. Unless the Federal Government legalizes medical marijuana, cities may freely regulate or ban medical marijuana dispensaries. In light of the Federal Drug Enforcement Administration’s July 19, 2016 announcement that it will keep marijuana illegal for all purposes, it does not appear that cities absolute right to regulate marijuana will end any time soon.

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