how california's anti-discrimination laws protect disabled medical cannabis patients from local...

How California's Anti-Discrimination Laws Protect Medical Cannabis Patients Suffering from Physical or Mental Impairments

Against Discriminatory Local Zoning Practices

By Matthew Pappas

In a free society, the activities and conduct a person may engage in are expansive

and sweeping while the limits on what people can do are confined to a narrow and finite

set of written proscriptions deemed necessary to protect the rights of others. It is not

generally things we are allowed to do that are classified, but rather things that are

prohibited that must be definite and carefully set forth in ordinances, statutes and

regulations. For example, there is not a law that permits people to use eyeglasses. While

some eyeglasses can be purchased for reading purposes without restriction, some require

a prescription from a qualified optometrist or ophthalmologist. For prescription

eyeglasses, when proper recommendation by a qualified doctor has been obtained, the

conditions imposed by the law are satisfied and the rules restricting or prohibiting use

become inapplicable.

When there is nothing prohibiting eyeglass use by a person either because there

was no restriction in the first place or when conditions restricting use are satisfied, no law

granting a right to use eyeglasses is necessary. Instead, use is determined by personal

choice or necessity. Just as no law is necessary to grant a right to use eyeglasses, no law is

required to give a person the right to use a wheelchair, knee brace or hearing aid.

However, when use of a wheelchair or eyeglasses is no longer optional but rather becomes

1 How Cali/ornia 's AnlL-Discrimmatiol1 Laws Protect Medica!

Cannahis Patients SII((eringjfmn Physical or l'denla! impairments Against Discrimina/ory Local 7/ming Practices

necessary to mitigate the impact of an impairment that limits a major life activity, use of

the mitigating thing by a person suffering from an impairment becomes protected by

disability law. Both state and federal law protect an impaired person's right to use,

possess and access whatever thing (e.g. eyeglasses, medication, wheelchairs, knee braces,

etc.) that operates to mitigate or conect a physical or mental impairment. It is the

disability laws - not the law governing the mitigating device, medication or aid - that

protect the right to use, access and possess the things used by people with disabilities to

mitigate conditions or symptoms from which they suffer. Once conditions required to

satisfy restrictions or limits specific to a mitigating device, medication or aid are met, a

disabled person is protected by law from discrimination related to their use of the that

mitigating device, medication or aid.

Just as wheelchairs or eyeglasses can reduce the effects of impairment for certain

disabled individuals, so can medication for those suffering from drug dependency. For

people who previously abused opiate drugs, Medication-Assisted Treatment (" MAT") is

often used to mitigate or reverse the debilitating effects of addiction. Unfortunately,

people who use MAT to recover from addiction are frequently subjected to improper and

illegal discrimination just as so many people who suffer from physical and mental

disabilities are and have been in the past. In its pamphlet titled Rights for Individuals on

Medication-Assisted Treatment, the U.S. Department of Health and Human Services

((( HHS") explains:



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"Individuals in MAT often face discrimination despite laws that plainly prohibit it.

This discrimination is largely due to lack of knowledge about MAT's value,

effectiveness and safety, and a lack of knowledge about the anti-discrimination

laws that protect people in MAT. Discrimination is also common because people

in MAT frequently do not have the tools necessary to educate employers,

landlords, courts, and others about MAT and relevant legal protections."

It continues, "The non-discrimination laws ... protect individuals with a 'disability" and

many people in MAT programs are individuals suffering from a disability. While most

disabled individuals participating in MAT are protected against discrimination, those who

are currently engaged in the illegal use of a drug are not.

Like prescription eyeglasses, the drugs methadone, buprenorphine or oral

naltrexone that are used in MAT programs are restricted by law. When a doctor

prescribes one or more of the MAT drugs for a person, no right is granted to use the drug

but rather the restriction prohibiting the drug's use becomes inapplicable. If a disabled

person uses the drug to mitigate or correct their drug dependency impairment, the person

is protected by disability anti-discrimination laws which operate to prevent local or state

laws that treat entities that provide for disabled individuals adversely. Whether

mitigation for a disabled person is a pair of eyeglasses or a drug prescribed by a doctor,

when the conditions restricting use of the thing used to mitigate (i.e. eyeglasses,

wheelchair, drug, etc.) are satisfied, the disability anti-discrimination laws protect against

discrimination.



In its pamphlet, HHS defines' discrimination' as "treating someone less favorably

than someone else because he or she has a disability, once had a disability, or is regarded -

even erroneously - as having a disability.)) It continues:

" MAT treats a chronic disease - addiction - using legally-prescribed medications.

It is discrimination for employers, landlords, government agencies, and health care

and treatment providers to treat people less favorably because they are in MAT. It

is also discrimination to treat people in MAT differently than people who are

prescribed medication to treat other disabilities, such as people prescribed insulin

for diabetes or people with high cholesterol who are prescribed cholesterol

lowering medication.))

Under California's disability anti-discrimination statutes, local governments may not use

zoning laws to discriminate against MAT programs, even if there is strong neighborhood

opposition to the siting of the facility. Zoning laws that prohibit MAT programs or

restrict their location generally violate state law, which is more protective than

cOlTesponding federal laws that also prohibit the same type of discriminatory zoning.

Also, zoning practices that treat MAT programs differently from other entities violate

state law.

The same state anti-discrimination laws that protect against discriminatory zoning

laws targeted at MAT programs also protect medical cannabis patients from local laws

that treat medical cannabis dispensaries less favorably than other uses. Federal law does

not protect the rights of medical cannabis patients because it regards the use of marijuana

as the "culTent illegal use of a drug.)) However, state law incorporates and provides even



greater protections than corresponding federal disability anti-discrimination law but

unlike federal law does not regard marijuana use as illegal when the conditions providing

for such use under state law have been met (i.e. the disabled individual has a valid

recommendation for medical cannabis to treat a physical or mental condition from a

licensed California physician).

Just as local zoning ordinances that discriminate against MAT programs through

discriminatory zoning laws or practices violate state law, so do local zoning laws that

similarly discriminate against dispensaries that can only provide medical cannabis for

people suffering from physical or mental impairments. Even if some patients

participating in MAT are ineligible for protection because they continue to engage in the

illegal use of a drug, the entities providing MAT programs (i.e. methadone clinics, drug

treatment centers, etc.) remain protected by state disability anti-discrimination laws.

Likewise, even if some patient members of medical cannabis dispensaries have feigned

conditions to obtain physician recommendations or are engaged in the illegal use of drugs

prohibited by state law, the dispensaries operating to provide for disabled people remain

protected from discriminatory local zoning rules, policies and practices.

Matthew Pappas is a civil rights attorney based in Long Beach, CaHfornia. He can be contacted via email at: matt.pappas@mattpappas)aw.com or by telephone at (949) 382-1485.

5 How California's Anti-Discrimination Laws Protect Medical

Cannabis Patients SufJeringjrom Physical or Mental impairments Against Discriminatory Local Zoning Practices

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