Sie sind auf Seite 1von 10

1 JOSEPH D. ELFORD (S.B. NO.

189934)
Americans for Safe Access
2
1322 Webster Street #208
3 Oakland, CA 94621
Telephone: (415) 573-7842
4 Fax: (510) 486-8090
5
Counsel for Plaintiffs
6

8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 IN AND FOR THE COUNTY OF FRESNO


10
UNLIMITED JURISDICTION
11

12 AMERICANS FOR SAFE ACCESS and )


WILLIAM McPIKE, )
13
)
14 )
Plaintiffs, ) Civil Action No.
15 )
v. ) VERIFIED COMPLAINT FOR
16
) DECLARATORY RELIEF,
17 CITY OF FRESNO, a municipal corporation, ) PRELIMINARY INJUNCTION,
) AND PERMANENT INJUNCTION
18 )
)
19
Defendant. )
20 )
____________________________________________)
21

22
I. INTRODUCTION

23 1. This is an action for declaratory and injunctive relief arising out of an unlawful
24 ordinance passed by the City of Fresno banning medical marijuana collectives throughout the city.
25
Plaintiff McPike is a qualified medical marijuana patient who took steps towards forming a medical
26
marijuana collective in accordance with California Health and Safety Code sections 11362.5 and
27

28
11362.775. Together with plaintiff Americans for Safe Access, plaintiff McPike, on behalf of

Complaint 1
Case No.
1 himself and on behalf of others who are similarly situated, as well as those who are detrimentally
2
affected by the City Ordinance, seek an order declaring Fresno Municipal Code section 8-221 (Fresno
3
City Ordinance No. 2004-112) unlawful and enjoining its continued implementation. The City of
4

5
Fresno’s rigid policy of banning all medical marijuana collectives deprives qualified medical

6 marijuana patients of the medicine promised them by the Compassionate Use Act (Cal. Health &
7 Safety Code § 11362.5(d)), thereby causing them wholly unnecessary pain and suffering. Section 8-
8
221 violates the Compassionate Use Act (Cal. Health & Safety Code § 11362.5(d)).
9
2. In the general election of November 4, 1996, fifty-seven percent of the California
10

11 electorate approved a ballot measure enacting Proposition 215 (“Proposition 215” or “the

12 Compassionate Use Act” or “the CUA”). In so doing, the California voters declared as their purpose
13
“[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical
14
purposes where that medical use is deemed appropriate and has been recommended by a physician
15
who has determined that the person’s health would benefit from the use of marijuana in the treatment
16

17 of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness

18 for which marijuana provides relief.” (Cal. Health & Safety Code § 11362.5(b)(1)(A)) Furthermore,
19
the voters sought “[t]o encourage the federal and state governments to implement a plan to provide
20
for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.”
21

22
(Cal. Health & Safety Code § 11362.5(b)(1)(C))

23 3. On September 10, 2003, the California Legislature clarified the Compassionate Use
24 Act through its passage of SB 420. In particular, the Legislature provided that “Qualified patients,
25
persons with valid identification cards, and the designated primary caregivers of qualified patients
26
and persons with identification cards, who associate within the State of California in order
27

28
collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis

Complaint 2
Case No.
1 of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366,
2
11366.5, or 11570.” (Cal. Health & Safety Code § 11362.775) Under these laws, plaintiff McPike
3
had a right to associate with other qualified patients and primary caregivers to furnish sick and dying
4

5
persons with the medicine they need.

6 4. Notwithstanding plaintiff McPike’s right to open a collective to furnish marijuana to


7 qualified patients and their primary caregivers, the City of Fresno enacted Fresno Municipal Code
8
section 8-221, which provides: “(d) Medical Marijuana Dispensaries where medical marijuana is
9
distributed by, distributed to, or made available to any combination of three or more qualified
10

11 patients, persons with an identification card, or primary caregivers defined by California Health and

12 Safety Code § 11362.5 et seq. are prohibited.” (Fresno Municipal Code § 8-221(d)) Subsection 8-
13
221(c), in turn, defines a “Medical Marijuana Dispensary” as “any facility or location, whether fixed
14
or mobile, where medical marijuana is made available to, distributed by, or distributed to one or more
15
of the following: (1) a qualified patient, (2) a person with an identification card, or (3) a primary
16

17 caregiver.” As a result of this policy, plaintiff has been forbidden from opening and operating a

18 medical marijuana collective and medical marijuana patients represented by Americans for Safe
19
Access have had to suffer and/or turn to the black market to obtain the medicine they need.
20
5. The expansive prohibition on medical marijuana collectives violates California Health
21

22
and Safety Code sections 11362.5 and 11362.775. Both the California Constitution and the

23 Government Code prohibit the enforcement of a city ordinance in conflict with state law. (Cal.
24 Const,, art. XI, § 7: Gov’t Code § 37100)
25
II. JURISDICTION AND VENUE
26
6. Jurisdiction is based on Article VI, Section 10 of the California Constitution; Civil
27

28
Code sections 51.7 & 52.1; and Code of Civil Procedure sections 32.5 and 86.

Complaint 3
Case No.
1 7. Venue is proper in the Superior Court in and for the County of Fresno, pursuant to
2
California Government Code section 955.2 and California Code of Civil Procedure section 393(b).
3
III. THE PARTIES
4

5
A. Plaintiffs

6 8. Plaintiff AMERICANS FOR SAFE ACCESS (“ASA”) is a non-profit corporation


7 with its office in Oakland, California that has as its primary purpose working to protect the rights of
8
patients and doctors to use marijuana for medical purposes. ASA’s members and constituents include
9
individuals within California who are adversely affected by the Fresno ban. Implementation of this
10

11 ordinance has had and will continue to have a severe impact on the statutory rights of the members

12 and constituents of ASA, which causes them immediate and irreparable harm.
13
9. Plaintiff WILLIAM McPIKE is, and at all times mentioned herein was, a qualified
14
medical marijuana patient and a resident of the County of Fresno. He is also an ASA member.
15
B. Defendant
16

17 10. Defendant CITY OF FRESNO is, and at all times mentioned herein was, a municipal

18 corporation within the State of California.


19
IV. FACTS APPLICABLE TO ALL CAUSES OF ACTION
20
11. On November 4, 1996, California voters passed Proposition 215, which is codified as
21

22
“the Compassionate Use Act” at California Health & Safety Code § 11362.5, to “ensure that seriously

23 ill Californians have the right to obtain and use marijuana for medical purposes. . . .” (See Cal.
24 Health & Safety Code § 11362.5(b)(1)).
25
12. Seven years later, on September 10, 2003, the California Legislature enacted Senate
26
Bill 420, Stats. 2003 c.875 (“SB 420”), to clarify that “Qualified patients, persons with valid
27

28
identification cards, and the designated primary caregivers of qualified patients and persons with

Complaint 4
Case No.
1 identification cards, who associate within the State of California in order collectively or cooperatively
2
to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to
3
state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.”
4

5
(Cal. Health & Safety Code § 11362.775) Under these laws, plaintiff McPike had a right to associate

6 with other qualified patients and primary caregivers to furnish sick and dying persons with the
7 medicine they need.
8
13. Precisely as the voters of California and their Legislature intended, plaintiff McPike
9
took steps to form a medical marijuana collective.
10

11 14. In July or August of 2004, McPike drafted the Article of Incorporation for a non-profit

12 corporation known as the “Tower Health Clinic & Dispensary.”


13
15. After being told by an employee of the Fresno City Planning Department that he
14
would need to submit a business plan in order to receive zoning approval, McPike submitted a two-
15
page business plan to that agency.
16

17 16. Weeks later, on October 26, 2004, the Council of the City of Fresno enacted

18 Ordinance No. 2004-112, which added Section 8-221 to the Fresno Municipal Code.
19
Notwithstanding the Compassionate Use Act and SB 420, that section provides: “(d) Medical
20
Marijuana Dispensaries where medical marijuana is distributed by, distributed to, or made available
21

22
to any combination of three or more qualified patients, persons with an identification card, or primary

23 caregivers defined by California Health and Safety Code § 11362.5 et seq. are prohibited.” (Fresno
24 Municipal Code § 8-221(d)) Subsection 8-221(c), in turn, defines a “Medical Marijuana Dispensary”
25
as “any facility or location, whether fixed or mobile, where medical marijuana is made available to,
26
distributed by, or distributed to one or more of the following: (1) a qualified patient, (2) a person
27

28
with an identification card, or (3) a primary caregiver.”

Complaint 5
Case No.
1 17. As a direct and proximate result of the Section 8-221, plaintiff McPike has suffered,
2
and will continue to suffer, the loss of his right to open and operate a medical marijuana collective to
3
furnish marijuana to qualified patients and primary caregivers, which, in turn, deprives the seriously
4

5
ill represented by ASA of the medicine promised them by the voters of California through the

6 passage of Proposition 215.


7 18. An actual and substantial controversy exists between plaintiffs and defendant as to
8
their respective legal rights and duties. Plaintiffs contend that, as applied to them and to others
9
similarly situated, Fresno Municipal Code section 8-221 is unlawful and unconstitutional. Defendant
10

11 contends the opposite.

12 19. If not enjoined by the Court, defendant will continue to implement Fresno Municipal
13
Code section 8-221 in derogation of the rights of plaintiffs, others similarly situated, and qualified
14
medical marijuana patients. Such implementation will impose irreparable injury on the plaintiffs and
15
these other persons.
16

17 20. Plaintiffs have no plain, speedy, and adequate remedy at law.

18 V. CAUSES OF ACTION
19
FIRST CAUSE OF ACTION
20
Violation of California Constitution, Article 11, § 7 and Government Code § 37100
21

22
21. Plaintiffs reallege and incorporate by reference paragraphs 1 through 20 of this

23 complaint as though fully set forth herein.


24 22. Article 11, Section 7 of the California Constitution and Government Code section
25
37100 prohibit the enactment of municipal laws that conflict with the general laws of the State.
26
23. Through the passage of the Compassionate Use Act, the California voters declared as
27

28
their purpose “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for

Complaint 6
Case No.
1 medical purposes where that medical use is deemed appropriate and has been recommended by a
2
physician who has determined that the person’s health would benefit from the use of marijuana. . . .”
3
(Cal. Health & Safety Code § 11362.5(b)(1)(A)) Furthermore, they sought out to ensure a safe and
4

5
effective distribution system. (See Cal. Health & Safety Code § 11362.5(b)(1)(C))

6 24. To advance the will of the California voters, the Legislature enacted SB 420, which
7 established cooperatives and collectives as the recognized forms of medical marijuana cultivation and
8
distribution to those who are too sick are otherwise unable to cultivate it for themselves. (See Cal.
9
Health & Safety Code § 11362.775)
10

11 25. In passing these laws, the voters of California and their Legislature have occupied the

12 field of medical marijuana law generally, which is a matter of pressing statewide concern. Because
13
Fresno Municipal Code section 8-221 conflicts these general laws by curtailing the right of seriously
14
ill Californians to obtain the medicine they need through the distribution channels identified by the
15
State, the general rule of California must prevail over the Fresno City Ordinance. (See City of Fresno
16

17 v. Pinedale County Water Dist. (1986) 184 Cal.App.3d 840, 845; City of Los Angeles v. State of

18 California (1982) 138 Cal.App.3d 526, 532.)


19
V. RELIEF SOUGHT
20
WHEREFORE, plaintiffs, on behalf of themselves and others similarly situated, seek the
21

22
following relief:

23 1. A declaration that Fresno Municipal Code section 8-221 is unlawful and


24 unconstitutional;
25
2. A preliminary and permanent injunction enjoining defendant and its agents and
26
employees from enforcing, or threatening to enforce, Fresno Municipal Ordinance section 8-221;
27

28

Complaint 7
Case No.
1 3. Costs and attorneys fees incurred in this action pursuant to California Code of Civil
2
Procedure § 1021.5, or other applicable authority; and
3
4. Such other and further relief as may be just and proper.
4

6 DATED: April 25, 2005


7

8
________________________________
9 JOSEPH D. ELFORD
Attorney for Plaintiffs
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Complaint 8
Case No.
1 VERIFICATION
2 I am the individual plaintiff in this action. I declare under penalty of perjury under the laws of
3
the State of California that the foregoing is true and correct.
4
Executed this __ day of April, in Fresno, California.
5

7 __________________________
8 WILLIAM McPIKE
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Complaint 9
Case No.
1 DEMAND FOR JURY TRIAL
2
Plaintiffs hereby demand a jury trial of this action.
3

5
DATED: April 25, 2005

6
________________________________
7 JOSEPH D. ELFORD
8
Attorney for Plaintiffs

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Complaint 10
Case No.