Kirby v. County of Fresno: Can a City or County Make it a Crime to Cultivate or Use Medical Marijuana?
| Publication year | 2016 |
| Author | By Bonnie C. Maly* |
By Bonnie C. Maly*
Since California decriminalized the use of medical marijuana over 20 years ago, some cities and counties have found ways to keep medical marijuana dispensaries entirely out of their jurisdictions. A new law enacted in 2015, the Medical Marijuana Regulation and Safety Act (MMRSA) (Bus. & Prof. Code §§ 19300-19355), may enable local entities to ban dispensaries more easily, but it also specifies that it does not "supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements." (Bus. & Prof. Code § 19315(a)). Notably, enacting or enforcing local criminal ordinances is not in this list.
In 2014, before enactment of the MMRSA, Fresno County followed the course of other localities and banned the dispensing, cultivation, and storage of medical marijuana in all its zoning districts, and classified any violation of this ban as a public nuisance. But Fresno County went further; in the same ordinance, it also attempted to re-criminalize the dispensing, cultivation, and storage of medical marijuana, despite California state law clearly allowing persons using medical marijuana an affirmative defense against criminal prosecution in state court. (See Health & Saf. Code § 11362.5).
Diana Kirby, a medical marijuana patient, challenged Fresno County's ordinance banning and recriminalizing medical marijuana activities. Ms. Kirby is allergic to all pain medication and uses cannabis to manage her chronic pain, as recommended by her physician. The trial court dismissed the lawsuit on demurrer. In Kirby v. County of Fresno (2015) 242 Cal. App.4th 940, the Fifth Appellate District of the Court of Appeal issued a Solomonic decision striking down one part of the County's ordinance while upholding another part. The court in Kirby, following California Supreme Court precedent in City of Riverside v. Inland Empire Patients Health & Wellness Ctr. (2013) 56 Cal.4th 729 (Inland Empire), first concluded that the ban on dispensing and cultivation adopted under the County's authority to regulate land use did not conflict with California's Compassionate Use Act (CUA) or its Medical Marijuana Program (MMP). (The Supreme Court in Inland Empire had concluded the year before that state medical...
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