No.: G048303

IN THE

Court of Appeal STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT DIVISION THREE

MARTIN MODIANO, an individual; HELAINE JONES,

an individual; KEVIN BUTCHER, an individual; MARLA JAMES, an individual; and PATIENT MED-AID,

a non-profit group of patients associated together under Ca. Health & Safety Code 11362.775,

Plaintiffs/Appellants,

vs.

CITY OF ANAHEIM, a California municipal corporation;

TOM TAIT, in his capacity as Mayor of Anaheim; HENRY W. STERN, in his capacity as City Treasurer of Anaheim,

Defendants/Respondents.

Hon. David Chaffee, Judge Superior Court of Orange County

Judgment entered March 14, 2013 No. 30-2012-00601853-CU-CR-CJC

APPELLANTS OPENING BRIEF

Matthew Pappas, SBN: 171860 Lee Durst, SBN: 69704

22762 Aspan Street, #202-107 Lake Forest, CA 92630

Telephone: (949) 382-1486 Facsimile: (949) 242-2605

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................................................... III

ISSUES PRESENTED .................................................................................. VIII

INTRODUCTION .............................................................................................. 1

STANDARD OF REVIEW ............................................................................... 2

DISCUSSION ..................................................................................................... 2

I. A LAW THAT DISCRIMINATES AGAINST PATIENTS VIOLATES THE STATES DISABLED PERSONS ACT. ................................................ 2

A. THE DPA PROHIBITS DISCRIMINATION......................................................... 3

B. THE PLAINTIFFS/APPELLANTS ARE QUALIFIED PROTECTED INDIVIDUALS UNDER CA. GOVT CODE 12926 AND 12926.1. ............................................ 5

C. CALIFORNIA LAW INCORPORATES, STRENGTHENS, AND REINFORCES PROTECTIONS THAT PROHIBIT CITY AND STATE LAWS THAT FACIALLY OR BY OPERATION DISCRIMINATE AGAINST THE DISABLED. ........................................ 8

1. Both the DPA and the Unruh Civil Rights Act prohibit city laws that discriminate against the disabled. ................................................................. 9

2. California law integrates the protections of rights included in the ADA and overrides that federal laws definitions of disability and unlawful drug use. ...................................................................................................... 11

D. CALIFORNIAS MEDICAL MARIJUANA LAWS WERE ENACTED FOR INDIVIDUALS WHO ARE PROTECTED BY THE DPA. .......................................... 12

1. The MMPA refers directly to disability law. ........................................ 13

2. The collective at issue here has standing to assert a DPA discrimination claim . .................................................................................. 14

3. The MMPA decriminalizes distribution of medical marijuana solely for people independently protected from discrimination by the DPA and Unruh. 15

E. THE ACTIONS TAKEN AGAINST THE PATIENTS IMPROPERLY DISCRIMINATE AGAINST THEM AS WELL AS OTHER DISABLED INDIVIDUALS. ......................... 16

1. The law at issue in this case only targets people who use marijuana with a doctors prescription to treat their respective disabilities. .............. 17

ii

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. ............................................................... 18

3. The Plaintiffs/Appellants alleged evidence of per se discrimination by Anaheim. ...................................................................................................... 19

4. Medical marijuana patients are protected at least as much as methadone patients are protected under the DPA. ..................................... 21

5. Through disparate impact, a state or local law can discriminate against disabled individuals. ....................................................................... 22

F. WHILE STATE MEDICAL MARIJUANA LAW DOES NOT GRANT PATIENTS THE RIGHT TO BE ACCOMMODATED, THEY ARE NONETHELESS PROTECTED FROM DISCRIMINATION BY THE DPA. ....................................................................... 24

G. THE CLAIMS IN THIS CASE DO NOT INVOLVE ACCOMODATION. ................. 26

H. ZONING LAWS ARE A PROGRAM OR ACTIVITY FOR PURPOSES OF THE DPA. ................................................................................................................ 28

I. STATE LAW APPROVING OR REGULATING AN ACTIVITY IS NOT REQUIRED FOR THE DPAS ANTI-DISCRIMINATION PROVISIONS TO APPLY. ..................... 31

II. STATE COURTS ARE NOT BOUND BY DECISIONS OF THE LOWER FEDERAL COURTS. ...................................................................... 33

III. IN CALIFORNIA COURTS, THE ADA APPLIES BECAUSE MEDICAL MARIJUANA USE IS NOT THE ILLEGAL USE OF DRUGS. ........................................................................................................... 36

IV. STATE DISABILITY LAW IS INDEPENDENT AND OVERRIDES MORE RESTRICTIVE FEDERAL LAW. ................................................... 40

V. THE CITY CANNOT USE TAXPAYER DOLLARS TO CALL THE FEDERAL GOVERNMENT IN TO ELIMINATE STATE COMPLIANT MEDICAL MARIJUANA COLLECTIVES. ................................................ 41

CONCLUSION ................................................................................................. 42

CERTIFICATE OF COUNSEL ..................................................................... 43

PROOF OF SERVICE BY MAIL .................................................................. 44

iii

TABLE OF AUTHORITIES

CASES

A Helping Hand, L.L.C. v. Baltimore Cnty. (4th Cir. 2008)

515 F.3d 356 ................................................................................................... 20

Addiction Specialists, Inc. v. Township of Hampton (3d Cir.2005)

411 F.3d 399 ................................................................................................... 15

Baba v. Board of Supervisors (2004)

124 Cal.App.4th 504 ......................................................................................... 2

Bay Area Addiction Research and Treatment, Inc. v. City of Antioch (9th Cir.

1999) 179 F.3d 725 ................................................................................... 21, 22

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 .............................. 22

Birkenfield v. City of Berkeley (1976)

17 Cal.3d 129 .................................................................................................. 16

Burnett v. San Francisco Police Department (1995)

36 Cal.App.4th 1177, 42 Cal.Rptr.2d 879 ...................................................... 10

California Redevelopment Assn. v. Matosantos (2011)

53 Cal.4th 231 ................................................................................................. 41

Cipollone v. Liggett Group, Inc. (1992)

505 U.S. 504 ................................................................................................... 11

City of Cleburne v. Cleburne Living Center (1985)

473 U.S. 432 ............................................................................................. 18, 19

City of El Monte v. Commission on State Mandates (2000)

83 Cal.App.4th 266 ......................................................................................... 41

City of Riverside v. Inland Empire Patients Health and Wellness Center (Ca.

Supreme Court 2013) No. S198638 ................................................................ 13

Consolidated Rock Products v. City of Los Angeles (1962)

57 Cal.2d 515 .................................................................................................. 16

iv

Crowder v. Kitagawa (9th Cir. 1996)

81 F.3d 1480 ............................................................................................ passim

Donald v Cafe Royale, Inc. (1990)

218 Cal.App.3d 168 .......................................................................................... 2

Geier v. American Honda Motor Co. (2000)

529 U.S. 861 ................................................................................................... 11

Gibson v. County of Riverside (C.D.Ca. 2002)

181 F.Supp.2d 1057 ........................................................................................ 10

Gonzales v. Oregon (2006)

546 U.S. 243, 163 L. Ed. 2d 748, 126 S. Ct. 904 ........................................... 37

Horizon House Dev. Servs. Inc. v. Twp. of Upper Southampton (E.D. Pa. 1992)

804 F. Supp. 683 ............................................................................................. 20

Innovative Health Systems v. City of White Plains (1997)

117 F.3d 37 ..................................................................................................... 26

James v. City of Costa Mesa (9th Cir. 2012)

684 F. 3d 825 ................................................................................ 33, 34, 35, 40

Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003)

109 Cal.App.4th 1705 ..................................................................................... 36

Miller v. Board of Public Works (1925)

195 Cal. 477 .................................................................................................... 16

Munson v. Del Taco, Inc. (2009)

46 Cal.4th 661, 94 Cal.Rptr.3d 685, 208 P.3d 623 ..................................... 9, 10

Nebbia v. New York (1934)

291 U.S. 502, 537, 54 S.Ct. 505, 78 L.Ed. 940 ........................................ 17, 18

New Directions Treatment Services v. City of Reading (3d Cir. 2006)

490 F.3d 293 ................................................................................................... 20

People v. Bradley (1969)

1 Cal.3d 80 ...................................................................................................... 36

People v. Hochanadel (2009)

176 Cal.App.4th 997 ....................................................................................... 16

v

Project Life, Inc. v. Parris Glendening (2001)

139 F.Supp.2d 703 .................................................................................... 20, 21

Qualified Patients Assn v. City of Anaheim (2010)

187 Cal.App.4th 734 ................................................................................ passim

Regional Economic Community Action Program, Inc. v. City of Middletown (2d

Cir. 2002) 294 F.3d 35 .............................................................................. 19, 20

Ross v. Ragingwire Telecomms., Inc. (2008)

42 Cal.4th 920 .......................................................................................... passim

Stubblefield Constr. Co. v. City of San Bernardino (1995)

32 Cal.App.4th 687 ......................................................................................... 17

Village of Willowbrook v. Olech (2000)

120 S.Ct. 1073 ........................................................................................... 17, 18

Wilson v. Costco Wholesale Corporation (S.D.Ca.2006)

426 F. Supp. 2d 1115 ........................................................................................ 2

Zubarau v. City of Palmdale (2011)

192 Cal.App.4th 289 ......................................................................................... 2

STATUTES

42 U.S.C. 12131(2) ......................................................................................... 10

42 U.S.C. 12132 ....................................................................................... passim

42 U.S.C. 12201(b) ................................................................................... 11, 12

42 U.S.C. 12210(d)(1) ..................................................................................... 34

Americans with Disabilities Act of 1990, 42 U.S.C. 12101, et seq. (P.L. 101-

336) .......................................................................................................... passim

Anaheim Municipal Code 4.20.300 ......................................................... passim

Ca. Civil Code 51(f) ................................................................................. passim

Ca. Civil Code 54(c) ................................................................................. passim

Ca. Civil Code 54.3 ........................................................................................... 3

Ca. Civil Code 54(a) ........................................................................................... 2

Ca. Code of Civ. Proc. 526a ................................................................... vi, 1, 42

vi

Ca. Govt Code 12926(j)(1)(C) ........................................................................ 6

Ca. Govt Code 12926(k)(4) ........................................................................... 22

Ca. Govt Code 12926(k)(6) .................................................................... passim

Ca. Govt Code 12926.1 ................................................................................ 5, 8

Ca. Govt Code 12926.1(c) ............................................................................... 8

Ca. Health & Safety Code 11362.5 .......................................................... passim

Ca. Health & Safety Code 11362.5(b)(1)(A) .................................................. 13

Ca. Health & Safety Code 11362.5(B)(1)(a) ............................................ 12, 15

Ca. Health & Safety Code 11362.7 ................................................. 7, 14, 17, 27

Ca. Health & Safety Code 11362.7(h) ............................................................ 13

Ca. Health & Safety Code 11362.7(h)(11) ........................................................ 8

Ca. Health & Safety Code 11362.7(h)(12)(A) ........................................ 7, 8, 14

Ca. Health & Safety Code 11362.7(h)(6) .......................................................... 8

Ca. Health & Safety Code 11362.7(h)(9) .......................................................... 8

Compassionate Use Act (Ca. Prop. 215, Appr. 11/1996, Ca. H&S 11362.5)

.................................................................................................................. passim

Controlled Substances Act (21 U.S.C. 801, et seq.) ............................ 34, 35, 39

Disabled Persons Act, (Ca. Civil Code 54, et seq.) ............................. 2, 3, 8, 9

Fair Employment and Housing Act, .Ca. Govt Code 12940,12945, 12945.2

............................................................................................................. 26, 27, 28

Medical Marijuana Program Act (Stats. 2003, Ch. 875) (enacted 2003, effective

1/1/2004) ....................................................................................... 13, 27, 32, 33

Unruh Civil Rights Act, Ca. Civil Code 51, et seq. ................................. 2, 9, 10

OTHER AUTHORITIES

Assem. Com. on Judiciary, Rep. on Assem. Bill No. 1077 (1991-1992 Reg.

Sess.) as amended Jan. 6, 1992 ......................................................................... 3

Assembly Bill No. 1077 (1991-1992 Reg. Sess.) ................................................ 3

Federalist #10 ..................................................................................................... 40

Federalist #14 ..................................................................................................... 40

vii

Federalist #45 ............................................................................................... 36, 40

Federalist #46 ..................................................................................................... 40

Federalist #51 ..................................................................................................... 40

Market Discrimination and Groups, Mark Kelman, 53 Stan. L. Rev. 833, 880,

note 24, 840 (2001) ........................................................................................... 4

REGULATIONS

2008 California Attorney General Guidelines for the Safety and Non-Diversion

of Marijuana Grown for Medical Use ............................................................ 14

28 C.F.R. 35.130(g) ......................................................................................... 15

CONSTITUTIONAL PROVISIONS

Ca. Const. art. XI, 7 ......................................................................................... 16

Tenth Amendment, U.S. Constitution ................................................................ 40

viii

ISSUES PRESENTED

1. Whether Anaheim Municipal Code 4.20.300, a ban of all

medical marijuana patient collectives, is a local rule, policy, or procedure that

impermissibly discriminates against protected individuals in violation of the

California Disabled Persons Act (DPA)?

2. Whether the California definition of a protected individual set

forth in Ca. Govt Code 12926.1 requiring a condition limit a major life

activity or the federal definition requiring a condition substantially limit a

major life activity applies when determining DPA eligibility?

3. Whether the California definition of unlawful drug use set forth

in Ca. Govt Code 12926(k)(6) or the federal definition set forth in 42 U.S.C.

12210(d) applies when determining DPA eligibility?

4. Whether the expenditure of taxpayer money by the City of

Anaheim to request assistance from the federal government to close all medical

marijuana collectives within its border violates Ca. Code of Civ. Proc. 526a?

1

INTRODUCTION

Anaheim Municipal Code (AMC) 4.20.300 prohibits all medical

marijuana dispensaries. The Plaintiffs/Appellants are seriously ill and disabled

individuals who are members of Patient Med Aid, a group of patients operating

under Ca. Health & Safety Code 11362.775. Patient Med Aid applied for a

business license as a medical marijuana dispensary which was denied by the

city. In 2012, Anaheim contacted the United States Attorney for the Central

District of California and asked that the federal government assist it in closing

down all Anaheim dispensaries. Thereafter, in September, 2012, Patient Med

Aid and its landlord received cease and desist letters from Anaheim and the

federal government.

On October 1, 2012, Patient Med Aid and four of its patient members

filed suit against Anaheim, its mayor, and its city treasurer claiming, inter alia,

that AMC 4.20.300 violates provisions of the DPA prohibiting local laws that

discriminate against disabled persons and that Anaheim violated Ca. Code of

Civ. Proc. 526a by spending taxpayer money to call in the federal

government. In March, 2013, the trial court, without leave to amend, sustained

Anaheims demurrer to the Plaintiffs first amended complaint and judgment

was thereafter entered in favor of the city.

2

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

sustained the Citys demurrer to the Plaintiff/Appellants First Amended

Complaint without leave to amend based solely on legal determinations.

Accordingly, in assessing the validity of AMC 4.20.300 (C.T. p.72), a de novo

standard 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); see Donald v Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 176181.)

The DPA protects seriously ill and disabled persons by incorporating

and strengthening the protections provided for in the federal Americans 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 had filed ancillary jurisdiction claims under both Unruh Civil Rights Act and Disabled Persons Act].

3

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 the Americans with Disabilities Act of 1990 [citation] and to retain California law when it provides 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 (see Stats. 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. (See Assem. 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 accommodate the disabled.

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

discrimination on the basis of disability.

A. The DPA prohibits discrimination.

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 discrimination as prejudiced or prejudicial

outlook, action, or treatment.

4

Simple discrimination occurs when an entity treats an individual

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

relevant characteristics. (See Market 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 note 24, 841.) Hence, plaintiffs asserting the right to be

free from simple discrimination are 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 accommodation is asking the entity to expend

money or to endure a cost to provide an affirmative change. (Id. at note 24,

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

Accommodation is a positive action 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 city does not

accommodate patients, but rather refrains from discriminating against them.

5

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

prohibition of practices by local governments that discriminate against people

with disabilities by providing that no qualified individual with a disability

shall be subjected to discrimination by any such entity.2 Here, the

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 city 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 Plaintiffs/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.

6

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 the 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. (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

7

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

program law requires a person have a condition that substantially limits a

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.

Appellant Marla James (James) contracted necrotizing fasciitis. James

underwent multiple surgeries and was hospitalized for an extended period of

time. (C.T. p.15, ll.15-19; p.16, ll.4-7; p.19, ll.24-28.) She has had a leg

amputated and suffers from chronic pain. She has diabetes. She is going blind.

Marla James suffers from a serious medical condition as defined in Ca.

Health & Safety Code 11362.7(h)(6), 11362.7(h)(12)(A) and her physician

recommended medical cannabis. (C.T. p.15, ll.15-19; p.16, ll.4-7; p.19, ll.24-

28.) Likewise, she alleged that her conditions limit her ability to walk and see,

both abilities that are major life activities. (C.T. pp.21-22, ll.24-28, ll.1-4.)

With a different but serious disability nonetheless, Appellant Martin

Modiano suffers from Acquired Immune Deficiency Syndrome (AIDS). He is

H.I.V. positive. (C.T. p.15, ll.2-5.) Modiano regularly experiences nausea as

well as muscular pain. He must take a variety of prescribed drugs to prevent the

8

disease from killing him. (C.T. p.121, ll.2-7; C.T. pp. 152-157.)

Consequently, Appellant Modiano suffers from serious medical conditions

included in Ca. Health & Safety Code 11362.7(h)(6), 11362.7(h)(9),

11362.7(h)(11), and 11362.7(h)(12)(A). Moreover, he meets the definition of

physical disability in Ca. Govt Code 12926.1 (Physical disabilities

include AIDS.). Under section 12926.1 of the Government Code, AIDS

automatically qualifies Modiano for protection without requiring specific

factual allegation regarding limits on major life activities. Accordingly, both

James and Modiano are qualified for the broader coverage under the law of

this state than under the [ADA] provided through the DPA. (Ca. Govt Code

12926.1(c)).

Butcher and Jones are likewise disabled. Butcher served in the United

States Army and suffers from Post- Traumatic Stress Disorder (PTSD). Jones

suffers from severe pain and discomfort related to a medical condition. In their

Verified Complaint as well as in the F.A.C., both Butcher and Jones alleged

specific life activities that are limited by their conditions. (C.T. p.15, ll.6-14;

p.16, ll.4-7; p.19, ll.24-28.) As with James and Modiano, both Butcher and

Jones are qualified for protection under Ca. Govt Code 12926.1.

C. California law incorporates, strengthens, and reinforces protections that prohibit city 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 individual under the ADA, also constitutes a violation of this

9

section. (Emphasis and underline added noting the rights are 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 DPA and the Unruh Civil Rights Act prohibit city laws that discriminate against the disabled.

In Munson 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 Unruh Civil Rights Act ( 51, subd. (f)) and the Disabled 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 city 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 individual under the federal Americans 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

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

10

held that because the Unruh Civil Rights Act expressly 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 Patients sought 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

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 Unruh incorporates the protections of 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 city discrimination.

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. (See Civ. Code, 51, subd. (b); see generally 8 Witkin, Summary of Ca. Law (10th ed. 2005) Constitutional Law, 898(2), p. 376.) (emphasis added).].

11

While substantial parts of the DPA provide that entities shall

accommodate disabled individuals and shall not discriminate against them,

Unruh is more substantially focused on the elimination of discrimination. (Ca.

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

both Unruh and the DPA show the Legislature intended to provide broader

protections than the ADA and to ensure stronger protections prohibiting

discrimination than the federal law.

2. California law integrates the protections of rights included in the ADA and 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.

12

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

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

protective and inclusive of 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 medical purposes, 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 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. (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

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

13

CUA, the voters limited the operative provisions of their ballot initiative to

decriminalizing use, 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),

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

disabled individuals with medical recommendations 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)

5 Part of the Medical Marijuana Program Act (Stats. 2003, Ch. 875) (enacted

2003, effective 1/1/2004) [MMPA].

14

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 the Americans 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

directly referencing the ADAs more stringent substantially limits a major

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

limiting the people who can be recommended medical marijuana to those who

suffer from conditions that substantially limit a major life activity, the

Legislature ensured that anyone with such a recommendation is necessarily

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

person from discrimination by local governments, require only a limit on 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 California Attorney General Guidelines

for the Safety and Non-Diversion of Marijuana Grown for Medical Use states a

15

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 Citys discriminatory laws is necessary. The DPAs

prohibition against discriminatory city 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 clinic has

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

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

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

3. The MMPA decriminalizes distribution of medical marijuana solely for people independently protected from discrimination by the DPA and Unruh.

While the CUA is limited to decriminalization of 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

16

the affordable and safe distribution of medical cannabis to patients in medical

need thereof:

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 contemplated and did not unconstitutionally amend the CUA. (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1014) (emphasis added.)

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

17

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 court functus 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

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 respective disabilities.

The offending law at issue in this case, AMC 4.20.300 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 only be 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 for conditions that

limit a major life activity. AMC 4.20.300 targets 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

AMC 4.20.300 only impacts protected disabled individuals because it

18

discerns between them and individuals who are not disabled. Moreover, the

law does more than just discern between the patients and other citizens; it

treats the patients adversely by placing restrictions and conditions on them that

are not placed on comparable uses. Accordingly, the Citys 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.)

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

interests of the city in a way that other permitted uses such as boarding

houses and hospitals would not. (473 U.S. at 448 (emphasis added).) The

19

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

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 Plaintiffs/Appellants alleged evidence of per se discrimination by Anaheim.

In Regional 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

20

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.)

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 plaintiffs prima facie case. 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.)

6 Horizon 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.

21

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.

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 Anaheim 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.

In Bay 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 a per se violation 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

22

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

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

is evidence of per se discrimination. 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 least as much as the

methadone patients in the Bay Area case. 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 can discriminate 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

23

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.)

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 procedure which

discriminates against visually-impaired individuals (Id. at 1485.) 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 Crowder is the reference to

accommodation by the state through a facially neutral law. Here, AMC

4.20.300 is not facially neutral and the issue is not accommodation, but rather

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.)

24

is the elimination of a facially discriminatory law.

F. While state medical marijuana law does not grant patients the right to be accommodated, they are nonetheless protected from discrimination by the DPA.

In this case, the patients are not claiming any special right to marijuana

than they would if they were prescribed Ambien. There is no state law

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

DPA. There is no requirement 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 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. 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 facially operates 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

25

laws. It was the operation of the canine-quarantine law that, when applied,

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

that then required accommodation under the facially neutral law for the

adversely impacted patients. Here, the law is facially discriminatory and there

is no accommodation necessary. Instead, the law is invalid because it is

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 Crowder determined 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 truly sick 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.

26

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 Crowder who was not required to hire a

temporary guide instead of using his own guide dog, the patients in this case

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 city 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 involve accomodation.

Limited in scope and focused on rights to be accommodated that are not

present in the states medical marijuana law is the Ross 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 accommodate his

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 the Ross case. Indeed, a detailed

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

27

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

economic policy reasons, the burdens it places on employers. Much of the

Courts opinion in Ross focused on the lack of notice to employers of their

duty to accommodate marijuana use and the absence of employment

accommodation in the CUA.

Unlike the plaintiff in Ross, the patients here are not seeking

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

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

provisions of the DPA define 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

28

governments. Accordingly, the Ross holding limited to FEHA and

accommodation is inapplicable.

H. Zoning laws are a program or activity for purposes of the DPA.

To determine whether a law that impacts use and zoning has

impermissibly discriminated against a person or group of people under the

DPA, the following test applies:

a) The person or people who make up the group must suffer from a condition that limits a major life activity such as walking, talking, hearing, seeing, sleeping, eating, or socializing;

b) The disabled person claiming discrimination must not be engaged in the current unlawful use of controlled substances or other drugs as set forth is Ca. Govt Code 12926(k)(6);

c) The claimed discrimination must be the result of a city, county, agency, or state or local zoning law, policy, procedure, or action that facially targets something that provides services only for the people who make-up or are a subset of the protected class;

d) The state or local zoning law, policy, procedure, or action at issue must facially or through disparate impact treat comparable uses differently;

e) The disabled person alleging discrimination must allege threshold facts showing the state or local zoning law: 1) Is facially discriminatory by its plain language or uses

numeric caps to limit the subject use; or 2) Operates differently and in an adverse manner in respect

to comparable uses which is proven by evidence showing: a) Statements by public officials or employees that the

use at issue leads to increased crime; b) Statements by public officials or employees that the

use at issue is proliferating at an unacceptably high rate; or

29

c) Statements by public officials or employees evincing at Not In My Back Yard (N.I.M.B.Y.) position;

f) The protected individuals do not pose a significant risk to the surrounding community (i.e. does a medical marijuana collective or methadone clinic or AIDS hospice pose more of a threat than a pharmacy or medical clinic);

To illustrate the application of this test, lets say the City of Acme,

California, which has an ordinance allowing and regulating medical marijuana

dispensaries, enacts the following emergency legislation after several citizens

are seriously injured following intense media reports claiming pharmaceutical

companies and doctors are profiteering through intravenous chemotherapy

drugs:

Ordinance 2013-005, the Acme Prevent Death and Serious Injury Caused by Protests Near and Around Chemotherapy Centers Ordinance: FINDINGS: 1) Recent protests near chemotherapy centers have led to the serious injury of Acme citizens; 2) Attempts to prohibit the protests were ruled unconstitutional recently by a state court; and 3) Unless action is taken to close-down and ban all chemotherapy centers, the Citys citizens are in imminent danger of being seriously injured or killed. THEREFORE, pursuant to its powers under art. XI, 7 of the California constitution to provide for the health, safety, and welfare of its citizens, the City of Acme enacts as follows: A) Chemotherapy Center shall mean and refer to any medical clinic that exclusively or non-exclusively provides intravenous chemotherapy services or that exclusively sells or otherwise provides intravenous chemotherapy drugs to individuals; B) It shall be a misdemeanor punishable by up to six (6) months in the city jail, $1,000.00 fine or both for any person to establish, own, operate, work-for, or in any way assist in the establishment or operation of any Chemotherapy Center within the city limits of Acme; C) All Chemotherapy Centers presently operating must: 1) Close within 5-days of the passage of this law; or 2) immediately stop providing all intravenous chemotherapy services; D)

30

this ordinance shall not prohibit a person from independently obtaining intravenous chemotherapy drugs outside of Acme and thereafter personally administering those drugs in their home.

During the city council meeting held when the Acme ordinance was

passed, one of the city council members commented, We are, of course, all

concerned about people with cancer or AIDS or other illnesses. However, we

cant have these facilities in Acme because they have led to multiple violent

protests where people have gotten hurt. The people who need these drugs can

go to a neighboring city. Another council member noted that the

chemotherapy centers are causing crime because the price of chemotherapy

drugs had skyrocketed while inventories were in short-supply. She referred

specifically to numerous break-ins at existing chemotherapy centers where

drugs had been stolen.

Following enactment of the ordinance, an existing chemotherapy center

filed a lawsuit challenging the Acme ordinance solely on the basis that it

conflicts with state law. In a decision limited to that narrow issue, the state

Supreme Court refused to strike-down the Acme law holding there is no state

law prohibiting California cities from banning chemotherapy centers.

Thereafter, three (3) female residents of Acme each of whom had recently been

diagnosed with cancer and AIDS, were prescribed intravenous chemotherapy

drugs. After the females learned that all chemotherapy centers were banned in

Acme, they filed a lawsuit claiming the Acme law violated the DPA by

discriminating against them.

31

Applying the test set forth above, the three (3) female plaintiffs meet the

first requirement that they have conditions that limit a major life activity.

Next, none of the three are engaged in the current illegal use of drugs or

controlled substances that is prohibited through Ca. Govt Code 12926(k)(6).

Next, intravenous chemotherapy drugs, under state and federal law, must be

prescribed by a licensed doctor to treat a medical condition. Accordingly, the

chemotherapy centers exist only for people who meet the California definition

of a disabled person. Finally, the Acme law specifically targets and bans

chemotherapy centers, entities that only exist for patients who meet the

definition of disabled person, and is therefore facially discriminatory. When

the Acme ordinance is analyzed in light of Acme ordinances governing

comparable uses for instance, the Acme law that allows and regulates

medical marijuana dispensaries it operates adversely and therefore

discriminates against the patients. Also, the N.I.M.B.Y. comments made by

one councilperson as well as the these things cause crime comments made by

another are evidence of per se discrimination that violates the DPA. It follows

that the Acme law contravenes the DPAs prohibition against discriminatory

city laws, policies, procedures, and actions.

I. State law approving or regulating an activity is not required for the DPAs anti-discrimination provisions to apply.

Important in analyzing the hypothetical is the recognition that there

need be no state law that conveys any special right to use a chemotherapy

center for the DPA to apply. The right to be free from discrimination by

32

governmental entities flows independently from the DPA, not from any

ancillary state law. Before the CUA was enacted in 1996, there was no

protection for medical marijuana patients in respect to mitigation that involved

the illegal (any) use of cannabis. Indeed, under Ca. Govt Code 12926(k)(6),

people engaged in the unlawful use of controlled substances or other drugs

one of which was marijuana before 1996 were disqualified from DPA

protection for conditions related to such use. In 2004, when the MMPA

became effective, patients could become members of and begin using medical

marijuana dispensaries. Again, their use of dispensaries prior to 2004 would

have been unlawful under state drug laws and therefore would operate to

trigger DPA disqualification. (Ca. Govt Code 12926(k)(6).) However, after

1996, the use of marijuana for medical purposes pursuant to a doctor

recommendation was no longer unlawful under state law and thus a person

meeting the state definition of a disabled individual (anyone with a valid doctor

prescription, which requires a prerequisite serious medical condition) now

remains qualified. Likewise, purchase of medical marijuana by a qualified

patient member of a collective operating as a dispensary in conformance with

state law is no longer unlawful. Accordingly, the provisions of Ca. Govt

Code 12926(k)(6) that would have, prior to 2004, disqualified patients who

purchased marijuana absent the state law decriminalization provisions of the

MMPA do not operate to disqualify those same patients today.

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Remembering that the state Supreme Court in Ross made clear

Californias medical marijuana laws only decriminalize use, possession,

distribution, transportation, storage, and the sale of marijuana for qualified

patients (and properly operating patient collectives), it is likewise important to

recognize the DPAs illegal drug use prohibition uses the word unlawful to

characterize the types of drug-related uses or actions that will disqualify a

person for purposes of DPA protection from discrimination. It is axiomatic

that when something is decriminalized, it is no longer unlawful. Indeed, it is

the criminal aspect of drug use the unlawfulness of that use that triggers

disqualification under the DPA. It follows that the decriminalization actions

taken by the voters and the Legislature in both the CUA and MMPA

respectively, were sufficient to remove the unlawful trigger included in the

DPA. More importantly, the non-medical, unlawful use of marijuana, even by

a qualified patient, remains effective even today and will operate to disqualify

those who do not comply with state law.

II. STATE COURTS ARE NOT BOUND BY DECISIONS OF THE LOWER FEDERAL COURTS.

In its moving papers, the City cites James 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 the ADA. The Plaintiffs

in that case included a wheelchair confined veteran who died during the

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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 Citys attempted broad use of the James case 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

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

authorization requirement in 12210(d)(1) of the ADA. (Id.) The court held

the patients did not remain qualified because they were engaged in the current

illegal use of drugs. Use of marijuana for medical purposes with a doctor

prescription is not illegal under California law and in California courts.

In James, the majority struggled to reach its conclusion. In a labored

effort, the majority applied various canons of construction it had to painfully

stretch to reach its admittedly near-draw conclusion that Congress intended

an implied federal CSA requirement in the ADA. On the other hand, without

35

any difficulty, the well-reasoned dissenting opinion showed Congress in-fact

did not intend to leave patients using marijuana for medical purposes without

protection:

The statutory interpretation issue at the core of this case is an unusually tough one, as the majority opinion recognizes. Looking at the language of 12210(d)(1) alone, I would come out where the majority does concluding that the statute is ambiguous. But unlike the majority, I would not declare a near-draw. Instead, looking at the words alone, I would conclude that the plaintiffs have much the better reading, but not by enough to be comfortable that their interpretation is surely correct. Turning then to the legislative history, I would again declare the plaintiffs the winner, this time sufficiently, when combined with the language considerations, to adopt their interpretation, absent some very good reason otherwise. And I am decidedly not convinced that the majoritys facile trump via the Controlled Substances Act (CSA) works, because, among other reasons, the supposed tension relied upon does not exist. (James, 684 F.3d at 836-837, Berzon, J., dissenting) (emphasis added.)

As Justice Berzon notes in her dissent, the decision in James was a near-draw.

(Id.) Even the two judge majority recognized the unusually difficult nature of

and near-draw in the case. (Id.) Moreover, the majoritys erroneous facile

trump that Justice Berzon refers to in her dissent is based on a manufactured

incongruence between the ADA and federal CSA a law California courts have

said does not preempt the states medical cannabis laws. Indeed, that same

federal law the CSA is a law that must take the proverbial back seat to

state law because state law is not preempted by it. (Qualified Patients, 187

Cal.App.4th at 754-55.) Correctly, the appellate court in the Qualified Patients

case deemed the City of Anaheim a creature of the state. (Id. at 754.) The

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City should not be calling in the federal government to assert federal law over

state law on the same subject.

III. IN CALIFORNIA COURTS, THE ADA APPLIES BECAUSE MEDICAL MARIJUANA USE IS NOT THE ILLEGAL USE OF DRUGS.

For purposes of the ADA, this California state court is not bound by

decisions of the lower federal courts including U.S. District Courts or the

federal circuit courts of appeal. (See Metalclad Corp. v. Ventana Environmental

Organizational Partnership (2003) 109 Cal.App.4th 1705, 1715 [1 Cal.Rptr.3d

328] [Metalclad].) At issue in Metalclad was a question of first impression in

the state courts regarding the Federal Arbitration Act (9 U.S.C. 1, et seq.)

[FAA]:

Even if [the Ninth Circuit or other federal courts had decided the issue], because the United States Supreme Court has not accepted or rejected the doctrine, we would remain free to reach our own conclusion, consistent with our obligation to interpret and apply federal law. On a federal question, the decisions of the United States Supreme Court are binding on state courts. However, the decisions of the lower federal courts, while persuasive, are not binding on us. (People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129). (Id. at 1715) (emphasis added.)

Medical marijuana is not the unlawful use of drugs in California. While such

use is apparently illegal under federal law, California is a sovereign state. In

Federalist #45, James Madison wrote:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and

37

foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. (emphasis added.)

Through its powers over all issues which concern the lives, liberties, and

properties of the People, California has always had the authority to legislate in

the area of health care and medicine. It has always had that power despite the

failure of the Article 2 and Article 3 branches of the federal sovereign to

prevent usurpation by Congress the most powerful part of the remote central

power.

In Gonzales v. Oregon (2006) 546 U.S. 243, 163 L. Ed. 2d 748, 126 S.

Ct. 904, the Supreme Court concluded that Oregons assisted suicide law was

not preempted by the federal Controlled Substances Act (CSA) because health

and welfare concerns historically have been regulated by the states (Id. at 271)

and Congresss purpose in enacting the CSA was to combat recreational drug

abuse. (Id. at 272, 274.) In connection to the CSA, however, we find only one

area in which Congress set general, uniform standards of medical practice.

[That area is the uniform national standard for the medical treatment of narcotic

addiction under 42 U.S.C. 290bb-2a.] This provision strengthens the

understanding of the CSA as a statute combating recreational drug abuse

(Id. at 271.)

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In addressing the majority opinion, Justice Scalia noted the Courts

holding in the case meant legitimate medical purpose refers to all uses of

drugs unrelated to addiction and recreational abuse. Ante, at 274. (Oregon,

546 U.S. at 287, Scalia, J. dissenting.) Justice Thomas referred to the Courts

newfound understanding of the CSA as a statute of limited reach and wrote

that its change limiting the CSA to recreational drug activities rests upon

constitutional principles that the majority of the Court [had earlier] rejected in

Raich (Oregon, 546 U.S. at 300, Thomas, J. dissenting). It follows that, in

the Oregon case, the Supreme Court has clarified: (1) the purpose of the CSA is

to regulate/prohibit recreational drug abuse; and (2) that Congress did not intend

to preempt states traditional rights to regulate medicine. (Id. at 274 and 300.)

Considering the names of the state laws at issue here include the words

Compassionate and Medical Marijuana in conjunction with the requirement

that a patient be recommended cannabis by a licensed physician, there is

nothing in Californias medical cannabis laws that allows, permits, or

decriminalizes anything having to do with the recreational use of marijuana.

Indeed, the sovereign states laws are inexorably tied to the practice of medicine

because only doctors can provide for the use of marijuana. The practice of

medicine refers to [t]he science and art dealing with the prevention, cure, or

alleviation of disease. It is illogical that a doctor would advise that medical

cannabis be used to treat the excruciating pain, discomfort, or other symptoms

of a patient knowing the patient cannot get the recommended medication.

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Moreover, it makes no sense to prohibit medical use of cannabis through a

federal law enacted to combat the recreational abuse of drugs. More

importantly, the illegal use of drugs provision of the ADA is targeted at just

that the illegal use of drugs. The federal CSA was not targeted at medical

drug use under state law and it is not unlawful under California for a patient

prescribed marijuana to use that medication. Accordingly, it makes sense that,

despite the decision of the lower federal court, the ADA should apply and

protect patients under California law.

The holding in Qualified Patients that subdivisions of the state must give

meaning and effect to state law considered in combination with and in light of

the holding in Metalclad that California courts are not bound by the decisions of

the lower federal courts make clear seriously disabled patients who use medical

cannabis under a doctors recommendation, including the Plaintiffs, remain

protected under the ADA in state court cases. Given the near draw decision

and the well-reasoned dissent in James, the proper interpretation, especially in

California, is one that includes the disabled Plaintiffs as Congress intended.

Additionally, the various state decisions like Qualified Patients that hold

Californias medical cannabis laws are not preempted by the CSA demonstrate

those same state appellate courts would likely find, as Justice Berzon did in

James, there is no conflict between the ADA and CSA given the vastly different

purposes Congress had when it enacted those laws.

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Of similar import, the usurpation of state power by the federal sovereign

has never granted the irresponsible co-equal Article 2 and Article 3 branches of

that supposedly limited sovereign the ability to wholly overtake areas originally

designated as belonging to the sovereign states. Indeed, the Framers of the

Constitution made clear the states are a critical and inexorable component of