Filed 12/30/13 Modiano v. City of Anaheim 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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE

MARTIN MODIANO et al.
                                                                       G048303
     Plaintiffs and Appellants,
                                                                       (Super. Ct. No. 30-2012-00601853)
                   v.
                                                                       OPINION
CITY OF ANAHEIM et al.,

     Defendants and Respondents.


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

Chaffee, Judge. Affirmed.

                   Matthew Pappas and Lee Durst for Plaintiffs and Appellants.
                   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
Curiae on behalf of Defendants and Respondents.

                                          *                  *                  *
              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 references 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 decision

denying their request for 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 Patients 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. We
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 relevant background at the outset, we turn immediately to

our discussion of Modiano’s claims.




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                                             I

                                      DISCUSSION

              Modiano contends the city’s ban against dispensaries violates the DPA by

discriminating against seriously ill and disabled persons who are protected by the DPA

because of medical conditions that “limit a major 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 rely 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 in 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 operation 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

Disabilities Act (ADA) against local “not in my backyard” discrimination.

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              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 overturn 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 provisions 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 insufficient, 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) [2000 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 marijuana 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 illegal 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 — including

                                              4
cocaine or heroin — and thereby enable the drug user to avoid the ADA’s illegal drug

exclusion. Congress could not have intended to create such a capacious loophole [to the

CSA], especially through such an ambiguous provision.” (James, supra, 700 F.3d at

p. 403.) As Modiano notes, however, the Legislature has specified in the CUA 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 1990”].)

              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), the proscription that “no qualified

individual with a disability shall . . . be subjected to discrimination 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 medical 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.”

                                               5
(§ 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 definitions of ‘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 intended to result in broader coverage

under the law of this state than under that federal 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 good 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 court 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 notion 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 is entitled to conscript a state’s law
enforcement officers into enforcing federal enactments, over the objection of that state
. . .’” (ibid.), or similarly conscript the enactment or interpretation of state law to meet
federal objectives. “The Federal Government,” however, “may neither issue directives
requiring the States to address particular problems, nor command the States’ officers, or
those of their political subdivisions, to administer or enforce a federal regulatory
program.” (Printz v. United States (1997) 521 U.S. 898, 935.)
                                              6
cite or discuss Civil Code section 3482, which provides: “Nothing which is done or

maintained under the express 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 activities 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, dispensary,

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, collective, 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 authorized


       2      Specifically, 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 cooperative, 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.” The
Legislature therefore contemplated that some dispensaries are “authorized by law.”
                                              7
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 marijuana 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 discriminate 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 Code of Civil

Procedure section 526a in turning to federal authorities 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 medical marijuana for disabled persons and

other seriously ill Californians. But because state medical marijuana law incorporates

under Inland Empire local marijuana regulations and restrictions, including bans, the

city’s actions were not illegal under state law, nor under city or federal law deeming

medical marijuana illegal. Inland Empire is controlling law. (Auto Equity, supra,

57 Cal.2d at p. 455.)



                                                8
                                           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 federal 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
Telecommunications (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
undermine 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.
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