Medi ical Marijuana and Californias Anti-Disc crimination Laws

By B Matthew Pappas P and M Marla James

Based in southern California, attorn ney Matthew Pa appas focuses o on health care regulatory ed as senior regu ulatory complian nce counsel at L Leap Solutions, I Inc. for six compliance. He serve ance managemen nt systems and s services have be en provided for companies years. Leaps complia ding the Dentix division d of Henry y Schein, PharM Merica, UMC So outhern Nevada, University includ of Nev vada Medical School, S Molina Healthcare, Chi ildrens Hospita al of Ohio, Ban nner Health System m, and the City of o Phoenix. Mar rla James is a pa atient advocate a and Director of t the Orange County y Chapter of Am mericans for Saf fe Access. Ms. James has work ked to ensure th he rights of seriously ill and disabl led patients for more m than ten (1 0) years.

Re ecently, the National N Can ncer Institute, part of the federal gove ernments N National Instit tutes of Health, reported tha at cannabis is i effective in reducing the size of f various can ncerous tumo ors. The fe ederal gover rnment itself f obt tained a pate ent for cannab binoids in 20 003 based on n its findings s that marijua ana-derived c components are effective in t treating neur rodegenerativ ve diseases in ncluding Alz zheimers, Pa arkinsons, an nd AIDS dem mentia. While overdoses of prescription opiate-based d pain relieve ers result in the t deaths of f thousands o of Americans annually, th here is not a rec corded overd dose death ca aused by ma arijuana in th he thousands of years it has been use ed medicinal lly. Despite the ese medical benefits, b the federal gove ernment con ntinues to pro ohibit the use, possession n, and distrib bution of all ma arijuana on a national basis. Against this t backdrop p, medical ca annabis patie ents with canc cer, AIDS, o or who suffer fro om insomnia have faced repeated r cha allenges mou unted by loca al authorities who conten nd they are n nothing more tha an drug abuse ers. alifornias Medical M Mari ijuana Laws s Ca Wh hile several states s have pa assed laws al llowing for th he recreation nal use of ma arijuana, Cali ifornia law provides only for r medical ma arijuana pres scribed by a licensed doc ctor. In 199 96, California a was the fir rst state to d decriminalize ma arijuana use, cultivation, and possessi ion for serio ously ill patie ents who ha ave oral or w written recom mmendations fro om physician ns. In 2004 4, California implemente ed the first M Medical Mar rijuana Prog gram Act (M MMPA) that pro ovides for di ispensaries of o marijuana for patients diagnosed w with an enum meration of serious illnesses, mental con nditions, phy ysical ailment ts, or perman nent disabiliti ies. Dis scrimination n by Local Government G s Following ena actment of its medical marijuana m program p law w, numerous dispensaries s opened in n California. Wi ithout an exi isting munici ipal regulatory framewor rk, cities and d counties we ere faced wi ith a new business entity typ pe they had no experien nce dealing with previo ously. Addi itionally, the e seemingly conflicting federal law pro ohibiting mar rijuana led to o debate and d confrontatio on in city go overnment. G Given the ne early 70-year r prohibition on marijuana in n the United d States and what w was ess sentially pro opaganda pro omulgated by y the federal government dur ring that per riod, many people p in law w enforcemen nt, local gov vernment, and who held political offi fice harbored dis scriminatory animus towa ard marijuana a and those who w used it, whether for medical purp poses or not. . This led to ban ns of medica al marijuana dispensaries d in cities throughout Calif fornia. alifornias Anti-Discrimi A ination Law ws Ca Ba ased on rights incorporate ed from Title e II of the fe ederal Ameri icans with D Disabilities Ac ct, California as Disabled d Persons Act (C CDPA) prohib bits local gov vernments fro om discrimin nating agains st people based on disabil lity. Indeed, Ca alifornias sep parate and in ndependent disability d law ws are more i inclusive and d protective t than federal law. Under sta ate law, the definition d of disability in ncludes speci ific serious i illnesses (e.g g. cancer, AI IDS, etc.) as well as any
Medica al Marijuana a and California as Anti-Discrim mination Laws September, 2013 Page 1 20 013 Advocates fo or the Disabled a and Seriously Ill

physical or mental condition that limits a major life activity. State law broadly defines major life activities which include, among other activities, walking, talking, eating, sleeping, and working. Since, under California law, medical marijuana patients can only be seriously ill, disabled, or permanently injured individuals, they are people who meet the states definition of disabled. While medical marijuana patients are disqualified from protection under the federal Americans with Disabilities Act because use of marijuana is prohibited by federal law, medical marijuana is not illegal under Californias independent CDPA. Accordingly, patients in compliance with state law remain qualified for CDPA protection. The CDPA was enacted in-part to level the playing field between disabled individuals and those who do not suffer from serious illness or permanent disability. For example, cities cannot discriminate against patients who use seeing-eye dogs, methadone, or wheelchairs to effectively use public services such as libraries, sidewalks, and health services. Medication and aids help patients who otherwise are limited in what they can do because of illness-related, physical, or mental disability to be able to use and enjoy the things people who do not suffer disability take for granted. When a city law, whether intentionally or just in how it operates, prevents or hinders disabled people from operating on the proverbial level playing field, the law is discriminatory. Under the CDPA, determining whether a law is discriminatory is determined by analyzing how similar local laws impact comparable uses. For instance, if methadone clinics, which are used by former heroin addicts as well as by cancer patients suffering from significant pain because of that disease, are subjected to greater restrictions including, for example, numerical limits, zoning restrictions, or other adverse policies, than comparable uses like medical clinics or pharmacies, there is discrimination. It is likely the same comparable use analysis applies for dispensaries, which, in California, can only provide for patients. Evidence of discrimination by a local government is shown when officials make statements that the proposed use (e.g. medical marijuana dispensary, specialty medical clinic, AIDS hospice, etc.) causes greater crime or the use is proliferating. Local officials should be cautious when making public statements about the use because such statements are evidence of per se discrimination against the disabled people for whom the use exists. Protecting Seriously Ill and Disabled Citizens When AIDS was first discovered and people became aware of it, fear resulting from assumptions fueled discrimination that led to city ordinances and laws banning AIDS hospices. Similar fears and misconceptions led to prohibitions and restrictions against methadone clinics. As a very new area, medical marijuana has led to the same types of invalid assumptions by public officials resulting in local bans of medical cannabis dispensaries throughout California. These bans have a very negative impact on medical cannabis patients. For example, patients with cancer who can, with marijuana, get out of bed, participate in life, and use and enjoy public services have, in many cases, been unable to do these things because city bans prevent them from accessing medication prescribed by their respective doctors. Not only do bans harm patients, but they create potential liability for cities that, under the CDPA, are subject to damage liability for enacting and enforcing discriminatory laws. Given cities should not only be working for their healthy citizens not suffering from serious illness and disability, but also those who daily deal with the challenges associated with physical and mental ailments, local government should, instead of discriminating against patients with bans and adverse laws, work to establish effective regulations that balance the needs of all citizens.

Medical Marijuana and Californias Anti-Discrimination Laws September, 2013 Page 2 2013 Advocates for the Disabled and Seriously Ill