Judge Gene E.K. Pratter of the Eastern District of Pennsylvania issued an important memorandum opinion regarding the conflict between federal criminal law and the operation of medical marijuana businesses under Pennsylvania law. PharmaCann Penn, LLC v. BV Development Superstition RR, LLC et al., No. 4625 (E.D. Pa. Mar. 14, 2018). Click here to read the opinion.

PharmaCann purchased property in a shopping center in Philadelphia. Plaintiff wanted to open a medical marijuana dispensary at the shopping center and was awarded a dispensary license under the Pennsylvania Medical Marijuana Act, 35 P.S. § 10231.101 and a zoning permit from the City of Philadelphia. However, the deed for the property contained multiple restrictions on its use, including that it shall not be used for “unlawful” purposes. The managers of the property objected to plaintiff’s plan as inconsistent with the deed.1 The unlawful purpose restriction was the focus of the court’s analysis.

PharmaCann filed a complaint seeking a declaratory judgment in Pennsylvania state court, asking the court to interpret the deed and hold that plaintiff was entitled to open a medical marijuana dispensary on the property because the restriction on unlawful use was inapplicable. Defendants removed the case to the Eastern District of Pennsylvania. PharmaCann moved to remand the case to state court on the ground that there was no federal question jurisdiction. Judge Pratter rejected plaintiff’s argument and held that the case presented a “substantial” federal question regarding “whether a medical marijuana dispensary is ‘unlawful’ under the Controlled Substances Act” (CSA). (Opinion, at 3-6.) Judge Pratter stated that the case “tee[d] up a fundamental clash” between Pennsylvania law and the CSA, which “flatly prohibits the distribution of marijuana, 21 U.S.C. § 841(a)(1), and recognized no ‘accepted medical use for the drug,’ id. § 812(b)(1).” (Id. at 3.)

Plaintiff argued that any decision

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