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

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
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2. The law at issue targets medical marijuana collectives and dispensaries but does NOT target medical clinics, methadone clinics, and pharmacies, all of which are comparable uses. ............................................................... 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 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 I.

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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
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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
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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. 101336) .......................................................................................................... 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
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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
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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

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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?

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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.

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

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].
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Disabilities Act of 1990, 42 U.S.C. 12101, et seq. (P.L. 101-336) [ADA]. (Ca. Civil Code 54(c)): It is the intent of the Legislature in enacting [the DPA] to strengthen California law in areas where it is weaker than 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.
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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 A relevant

Kelman, 53 Stan. L. Rev. 833, 880, note 24, 840 (2001).)

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.

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:

The DPA is independent of federal disability law. However, through Ca. Civ. Code 54(c), it includes the protections of rights included in federal law, specifically 42 U.S.C. 12132, part of Title II of the Americans with Disabilities Act.
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Physical and mental disabilities include, but are not limited to, chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease. In addition, the Legislature has determined that the definitions of physical disability and mental disability under the law of this state require a limitation upon a major life activity, but do not require, as does 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
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limit on a major life activity while the more restrictive state medical marijuana program law requires a person have a condition that substantially limits a major life activity in order to be prescribed medical marijuana under its catchall 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.2428.) 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
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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
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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

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

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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.

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).].
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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.
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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
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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)

Part of the Medical Marijuana Program Act (Stats. 2003, Ch. 875) (enacted 2003, effective 1/1/2004) [MMPA].
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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
14

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
15

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
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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. 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
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(Ca.

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
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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
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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.)

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 76876.
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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
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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
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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

Section 12132 of the ADA precludes (1) exclusion from/denial of benefits of public services, as well as (2) discrimination by a public entity. (Crowder, 81 F.3d at 1483.)
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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
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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 caninequarantine 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.
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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
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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

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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; 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); 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; The state or local zoning law, policy, procedure, or action at issue must facially or through disparate impact treat comparable uses differently; The disabled person alleging discrimination must allege threshold facts showing the state or local zoning law: 1) 2) Is facially discriminatory by its plain language or uses numeric caps to limit the subject use; or Operates differently and in an adverse manner in respect to comparable uses which is proven by evidence showing: a) b) Statements by public officials or employees that the use at issue leads to increased crime; Statements by public officials or employees that the use at issue is proliferating at an unacceptably high rate; or

b)

c)

d)

e)

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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)
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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.
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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
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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 splitdecision, 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
34

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
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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 our nations system of federalism. It follows that the states when dealing with an issue traditionally belonging to them are as important in stopping improper federal usurpation of their powers as the co-equal branches of the federal sovereign. When those co-equal branches have failed to prevent the Article 1 branch from engaging in improper takings of state power, the states have a duty to stand-up for the rights granted them at the time this country was formed. (See Federalist #10, Federalist #14, Federalist #45, Federalist #46, and Federalist #51; see also Tenth Amendment, U.S. Constitution.) IV. STATE DISABILITY LAW IS INDEPENDENT AND OVERRIDES MORE RESTRICTIVE FEDERAL LAW.

In respect to the independent state law DPA, the decision in James is not applicable. Indeed, Californias disability law includes its own illegal drug use prohibition that is independent of and overrides section 12210(d) of the ADA. Government Code section 12926(k)(6) includes Californias unlawful drug use prohibition that operates to exclude disability law eligibility. Those sections refer to the unlawful use of a controlled substance or drug under state law. Use of marijuana for medical reasons with a recommendation by a

licensed doctor is not unlawful in California. Thus, the decision in James in

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inapplicable in terms of the DPA. Given the Legislature made clear the DPA is separate and independent from the ADA while incorporating the protections of ADA rights, the DPA is more protective and thus applies to protect the Plaintiffs/Appellants. V. THE CITY CANNOT USE TAXPAYER DOLLARS TO CALL THE FEDERAL GOVERNMENT IN TO ELIMINATE STATE COMPLIANT MEDICAL MARIJUANA COLLECTIVES.

Anaheim proffered that it can call-in the Federal government to eliminate the patient collectives. At issue in the trial court was the Citys demurrer. The Verified Complaint as well as the First Amended Complaint alleged the patients and the entity they formed to represent themselves collectively Patient Med-Aid operated in full-conformance with state law. Apparently, the trial court did not treat that allegation as true for purposes of the two demurrers. Anaheim is a non-sovereign subdivision of the State of California. (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 255; City of El Monte v. Commission on State Mandates (2000) 83 Cal.App.4th 266, 279 [99 Cal.Rptr.2d 333].) It is a creature of state

government and must give meaning and effect to state law. (Qualified Patient, supra.) The expenditure of its taxpayer dollars is illegal and improper because Anaheim must give meaning and effect to state law, not to federal law that is different on the same subject. Essentially, Anaheim has gone around the holding in Qualified Patients by spending state/city tax dollars to call-in the federal government to enforce federal law. Indeed, the Citys letters sent to
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collectives and landlords specifically refers to federal law in a manner inapposite to the holding in Qualified Patients. Section 526a of the Code of Civil Procedure prohibits this type of expenditure. CONCLUSION The Verified Complaint and First Amended Complaint filed by the Plaintiffs/Appellants included sufficient factual allegations to withstand the Defendants/Respondents demurrer to the causes of action seeking relief under the DPA, Unruh, the ADA, and Code of Civ. Proc. 526a. The trial courts decision sustaining the demurrer was based on issues of law. In respect to the DPA, the trial court erred when it assumed accommodation and completely overlooked the issue of discrimination. Likewise, the trial court erred when it determined the ADA is inapplicable and that the taxpayer expenditures of Anaheim to call in the federal government and which violated the DPA were not improper. Accordingly, the trial courts orders sustaining the demurrer to Plaintiffs Verified Complaint and First Amended Complaint should be REVERSED. Respectfully submitted on July 15, 2013:

_________________________________ Matthew Pappas, SBN: 171860

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CERTIFICATE OF COUNSEL
Counsel for Appellants hereby certifies that, pursuant to Rule 14(c)(1) of the California Rules of Court, the enclosed OPENING BRIEF ON THE MERITS was produced using 13-point Times New Roman proportional font and contains approximately 10,817 words excluding the table of contents, table of authorities, cover page, and this certificate. In arriving at this estimate, counsel selected the parts of the document excluding the aforementioned tables and cover page and retrieved the count of words provided by the Microsoft Word 2010 word processing software used to produce the document. I hereby certify the aforementioned certification is true and correct under penalty of perjury under the laws of the state of California.

DATED: July 15, 2013:

________________________________ Matthew Pappas

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PROOF OF SERVICE BY MAIL

I, Victoria Pappas, am a citizen of the United States and resident of Mission Viejo, California. My address is 22762 Aspan St., #202-107, California. On July 17, 2013, I served the Opening Brief of Plaintiffs/Appellants and Cert. of Interested Parties on the interested parties in this case shown below by depositing separate envelopes addressed to each of them in which the aforementioned documents were enclosed and postage paid and affixed into the U.S. Mail at Lake Forest, California:
Moses Johnson, IV Asst. City Attorney Anaheim City Attorney 200 S. Anaheim Blvd., Suite 356 Anaheim, CA 92805 Clerk of the Orange County Superior Court For: Hon. David Chaffee 700 Civic Center Drive West Santa Ana, CA 92701 Ca. Supreme Court Via E-Service (CRC 8.212(c)(2)) 350 McAllister Street San Francisco, CA 94102-4797 Office of the California Attorney General 1300 I Street P.O. Box 944255 Sacramento, CA 94244-2550

I declare under penalty of perjury under the laws of the United States and the laws of the state of California that the aforementioned is true and correct: EXECUTED this 17th day of July, 2013 at Lake Forest, CA, United States of America.

_______________________________ Victoria Pappas

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