65A - RPT - REGARDING MEDICAL MARIJUANA INITIATIVE

Home Browse Search

classification. The burden of disproving a rational basis is on the party challenging a statute. (Kasler v. Lockyer (2000) 23 Cal. 4th 472, 482.) Courts will defer to the legislative body when analyzing classifications. However, even in an ordinary equal protection case, calling for the greatest deference, the court must ascertain the relation between the classification adopted and the object to be obtained. (Warden v. State Bar (1999) 21 Cal 4th 628.) The initiative distinguishes between similarly situated persons in two distinct areas. First an applicant must provide evidence that it was, and has been operating at the location prior to December 31, 2011. Second, a licensed physician actively making patient recommendations is not eligible to obtain a Notice of Completed Registration, effectively denying licensed physicians from operating a dispensary. The Proponents do not set forth a basis for either of these restrictions on the right to apply for registration. However, the right to operate a collective or cooperative is not a fundamental right, therefore the court will review the regulatory scheme under a rational basis test to determine whether it is reasonably conceivable that these restrictions bear a rational relationship to a legitimate interest of the City. (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307.) The courts have upheld classification based on prior legal existence. A distinction exists here as all dispensaries have been banned in Santa Ana since 2007. Any dispensary that has been operating since December 31, 2011, has been operating illegally, and has not acquired any right to continued operation. In fact, the City has been working to close all existing illegal dispensaries. No rational argument can be made to reward the illegal operation by putting those dispensaries at the front of the line for a right to continue to operate. The existing illegal dispensaries have been operating against the law from the time they began operating. There is no reason to believe existing dispensaries would be more likely than new dispensaries to comply with the regulations imposed through the initiative. Additionally, no conceivable argument can be made that physicians who actively make patient recommendations pose a greater threat than dispensary operators which exist only to dispense marijuana, and have no other relationship with qualified patients or their primary caregivers. A recommending physician is a person who 1) possesses a license to practice medicine in California; 2) has taken responsibility for some aspect of the medical care, treatment, diagnosis, counseling or referral of a patient; and 3) has complied with accepted medical standards when recommending medical marijuana for his patient. Attorney General Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (August 2008) (AG Guidelines). Although medical marijuana "dispensaries" have been operating in California for years, dispensaries, as such, are not recognized under the law. Dispensaries do not generally comply with the AG Guidelines. For example, dispensaries that merely require patients to complete a form summarily designating the business owner as their primary caregiver - and then 8 65A-14