Preemption

The Supremacy Clause of the US Constitution generally preempts state laws that conflict with federal law, rendering them void. The federal Controlled Substances Act, which criminalizes the manufacture, distribution, and use of controlled substances, appears to conflict directly with state laws that “legalize” marijuana for recreational or medical purposes.

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Is Medical Marijuana Cultivation More Than Just a Land-Use Issue?

By Henry G. Wykowski and Andrew F. Scher

In 2013, the California Supreme Court (in its Inland Empire decision) upheld the power of cities and counties to adopt land use ordinances that ban medical marijuana dispensaries. But the supreme court has not yet ruled on whether local entities may ban a qualified individual patient from cultivating his or her own medical marijuana.

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Lawsuit Challenging Fresno County Medical Marijuana Ordinance Allowed to Proceed

By Bonnie C. Maly, CEB Publications Attorney

Citing state Supreme Court precedent, a California appeals court allowed to proceed a suit challenging a Fresno County ordinance that classifies medical marijuana cultivation as a misdemeanor. However, the court rejected the Plaintiff’s challenge to the county’s ban on cultivation, saying that state laws do not expressly prevent a local government from restricting land use.

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OPINION: Maral v. City of Live Oak

221 Cal.App.4th 975 (2013)

The Third Appellate District held that the Compassionate Use Act protects patients and their caregivers from statutes prohibiting possession and cultivation, and protects physicians who recommend marijuana to their patients.

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