Call Us Today 714.684.6922

Should I Open a Dispensary?

Medical Dispensary Sign

Our clients are constantly asking us the same question. They say - “Is it a good time to open a storefront dispensary?” Or something like - “Obama just got re-elected – what about now?” Even, “Well it’s legal in Washington and Colorado – how ‘bout now?” In this article, we are going to try and give a decent answer to this very complicated question.

The Answer – “Well, It Depends”

Let’s be clear from the start, any lawyer that gives you a straight “yes” or “no” answer to this question isn’t worth his salt. This field of law is relatively new and complex. This question requires an understanding of both criminal and civil law. To make a long story short, the answer is a very lawyerly answer – “Well, it depends.”

Medical Marijuana - Constant Flux

To make matters even more complicated, Medical Marijuana Law is in a constant state of flux. It seems like the legal landscape changes every day. In answering this question, pay particular attention to the date of this opinion, as things may change tomorrow, thus being the ever morphing, ever shifting and changing landscape that is medical marijuana law.

Federal State and Local Laws

Ultimately, there are three components to this answer: (1) federal, (2) state and (3) local.

The Federal Level

On the federal level, the answer is unclear. Since Washington and Colorado legalized the recreational use of marijuana, the Obama administration has taken no official position. Either publicly through official White House statements or through the U. S Attorney’s office, no one has yet announced a shift away from enforcing the Controlled Substance Act as against “storefront dispensaries.” This is true despite the duplicitous earlier statement that the federal government would only go after those entities not complying with State law. So the final word is “caveat emptor” – buy beware. It really is unclear where dispensaries stand as far as the federal government is concerned.

The State Level

On the State level, there appears to be an acceptance that the Medical Marijuana Program Act allows for the lawful operation of a storefront. So long as the storefront sells medical marijuana to members of the collective who contribute to the collective or cooperative cultivation through sales – it should be okay under California State Medical Marijuana Law. So, this applies to dispensaries in Orange County, Los Angeles, San Diego, and anywhere in California really.

State Marijuana Law – People v Jovan Jackson

This has been reinforced by the recent case of People v Jovan Jackson, which now is solid, precedential case law in the state of California. What’s more, review and requests for de-publication having been denied by the California Supreme Court. This case is medical marijuana law in California. But remember, Jackson is a criminal case, which allowed Mr. Jackson to raise the defense of the Medical Marijuana Program as against a criminal conviction. How much of the findings of the appellate court that Jackson’s activities were legal will spill over to the civil part of the medical marijuana battle remains to be seen.

The Local Level

Which brings us to the local level, where cities are still filing lawsuits to gain injunctions banning “storefront” dispensaries. Remember, criminal law and civil law are different beasts. T. The issues in a criminal case are different when zoning issues are concerned, like when the question revolves around county use of its police power to regulate land within its jurisdictions. We have yet to have a case that has not been de-published (appellate or otherwise) that we can point to as preventing civil authorities from banning “storefronts”.

California Supreme Court Ruling on Medical Marijuana

The California Supreme Court will hear arguments on this issue February 5, 2013. Don’t expect a ruling before May of 2013. But then again, anything could happen before then. Until then, should you open a “storefront”, don’t be surprised if code enforcement shows up to give you a citation and fine for operating against the city or county ban, or you get served with a lawsuit seeking an injunction to close you down.

So, What’s The Answer?

Is now a good time to open a dispensary? Well, only you and your lawyer know for sure. The answer hinges on issues of criminal and civil law and requires an analysis of local, state, and federal government actions. Without a lawyer that knows these things and can advise you on these matters – you could be up the proverbial creek without a paddle.

Give us a Call

The real answer is that you need to weigh risks against reward. You can certainly open a dispensary – but you need to be prepared to fight. At Anthony Curiale and Associates, A Professional Corporation, we’ve been practicing criminal law for over 30 years and civil for over a decade. We know the law. So, if you are thinking about opening a dispensary and want to know what it takes – check out our series on medical marijuana law and read this article on some things to keep in mind before opening a dispensary. And, as always, feel free to give us a call or stop by the office. Thanks and happy reading.