CITY OF LAKE FOREST v. EVERGREEN HOLISTIC COLLECTIVE.
G043909
203 Cal. App. 4th 1413; 138 Cal. Rptr. 3d 332
February 29, 2012, Filed
NOTICE: NOT CITABLE—SUPERSEDED BY GRANT OF REVIEW As modified Mar. 29, 2012.
OPINION
ARONSON, J.—The trial court granted the City of Lake
Forest's (the City's) request in this nuisance abatement proceeding for a
preliminary injunction shutting down Evergreen Holistic Collective's
(Evergreen's) medical marijuana dispensary based on a citywide ban against
dispensaries. The trial court determined the City's decision not to recognize
dispensaries as a permitted property use, and to prohibit unpermitted uses,
established a complete ban against the activity. Evergreen contends
dispensaries are authorized by Health and Safety Code section 11362.775's
endorsement of “collective[]” and “cooperative[]” medical marijuana activities,
and, therefore, what the Legislature has authorized, the City may not ban.1
FOOTNOTES
1 Unless noted, all further statutory references are to the
Health and Safety Code.
We conclude local governments may not prohibit medical
marijuana dispensaries altogether, with the caveat that the Legislature
authorized dispensaries only at sites where medical marijuana is “collectively
or cooperatively … cultivate[d].” (§ 11362.775.) Section 11362.775 exempts
qualified medical marijuana patients and their primary caregivers not only from
criminal prosecution for authorized collective or cooperative activities, but
also from nuisance abatement proceedings. Thus, the Legislature has determined
the activities it authorized at collective or cooperative cultivation sites,
including a dispensary function, do not constitute a nuisance.
Under the City's municipal code, in contrast, violation of
its zoning ordinances constitutes a per se, categorical nuisance. Under the
City's ban, a medical marijuana dispensary always constitutes a nuisance,
though the Legislature has concluded otherwise. Because the City's ban directly
contradicts state law, it is preempted and furnishes no valid basis for a
preliminary injunction in the City's favor. Rather, the City must show
Evergreen did not grow its marijuana onsite or otherwise failed to comply with
applicable state medical marijuana law or permissible local regulations.
Because the trial court granted the City's injunction request solely on the
basis of the City's total ban, we must reverse the preliminary injunction and
remand the matter for further proceedings.
I
FACTUAL AND PROCEDURAL BACKGROUND
The City filed its nuisance complaint against Evergreen
under the general nuisance statute (Civ. Code, § 3479) alleging a public
nuisance (Civ. Code, § 3480). The City pleaded two nuisance causes of action
against Evergreen. First, the City alleged Evergreen's dispensary activities
constituted a per se nuisance because City ordinances effectively banned
medical marijuana dispensaries and, therefore, operating a dispensary
constituted a categorical nuisance under its municipal law. The City's second
cause of action alleged operation of the dispensary created an actual nuisance
“injurious to health, … indecent and offensive to the senses, and an
obstruction to the free use of property, so as to interfere with the
comfortable use and enjoyment of property, which affects an entire community
and, as such, is a public nuisance … .” The trial court eventually granted the
City's request for a preliminary injunction on the first ground only.
Specifically, the City asserted its zoning code established
medical marijuana dispensaries constituted a per se public nuisance by omitting
dispensaries as an authorized property use at Evergreen's location in the
“Commercial Community” zoning district. As the City's complaint put it, the
City effectively had banned dispensaries because “marijuana dispensaries are
neither enumerated as a permitted use, nor as any other type of conditional or
temporary use in any zoning district in the City.” (Italics added.) For
example, the relevant zoning provisions governing the commercial community
district identifies permitted uses, uses permitted with a permit, temporary
permitted uses, accessory uses, and prohibited uses, and none include marijuana
dispensaries.2 (Lake Forest Mun. Code (LFMC), §§ 9.88.020–9.88.060.)
FOOTNOTES
2 We grant the City's request to take judicial notice of the
relevant portions of its municipal code and zoning code, also judicially
noticed by the trial court. (Evid. Code, §§ 452, subd. (b), 459.)
In particular, LFMC section 9.88.020 identifies certain
“principal” property uses as permitted uses in the commercial community zoning
district, including for example, “Administrative and professional offices,”
“Animal clinics,” “Automobile repair specialty shops,” “Cinemas and theaters,”
“Civic and government uses,” “Day (care) nurseries,” “Instructional studios,”
“Restaurants,” “Retail businesses,” “Service businesses,” “Wholesale businesses
without warehousing,” and “Adult Businesses.” Of these, only adult businesses
require City preapproval.
The zoning code also specifies other uses in the commercial
community district are permitted subject to a use permit, including for
example, “Automobile service stations,” “Health clubs,” “Hospitals,” “Hotels
and motels,” “Kennels,” “Massage establishments” as specified in another chapter
of the code, “Mini-storage facilities,” “Mortuaries and crematories,” and
“Vehicle washing facilities.” (LFMC, § 9.88.030.) Authorized temporary uses
include “Commercial coaches” and seasonal holiday uses such as “Christmas tree
sales” and “Halloween pumpkin” patches. (LFMC, § 9.88.040.) Valid accessory
uses include fences, walls, and signs. (LFMC, § 9.88.050.)
In LFMC section 9.88.060, the zoning code identifies the
following uses as “specifically prohibited” in the commercial community
district where Evergreen was located: “Automobile wrecking, junk and salvage
yards,” “Bottling plants,” “Cleaning, dyeing and laundry plants,” “Contractors'
storage and equipment yards, work and fabricating areas,” “Rental and sales
agencies for agricultural, industrial and construction equipment,” “Vehicle
engine/transmission rebuilding, tire retreading, fender and body repair and
paint shops,” and “Welding shops and metal plating.” The code also prohibits
uses not enumerated in the foregoing sections. (LFMC, § 9.88.060 [prohibiting
the above listed uses and “Uses not permitted by [s]ections 9.88.020 through
9.88.050”].)
Seeking a preliminary injunction, the City argued
Evergreen's medical marijuana activities constituted a per se nuisance because
the City zoning code did not authorize Evergreen's venture for the commercial
community zoning district, or elsewhere within City borders. Phrased
differently, dispensing medical marijuana violated the City's zoning ordinances
because it fell under no approved use category, and the violation constituted a
per se public nuisance based on City law providing that any violation of its
municipal code or zoning code constituted a public nuisance. (See LFMC, §
1.01.240B [“any condition caused or permitted to exist in violation of any of
the provisions of any code adopted by reference by this Code, or of the
provisions of any other City ordinance, shall be deemed a public nuisance which
may be abated by the City Attorney in a civil judicial action”]; see also id.,
§ 6.14.002A [public nuisances designated to include “[a]ny violation of any
section of the Lake Forest Municipal Code”]; id., § 9.208.040B [“any use of
property contrary to the provisions of the Zoning Code shall be and the same is
hereby declared to be unlawful and a public nuisance”].)
Evergreen opposed the City's request for a preliminary
injunction on grounds the City failed to establish its activities constituted a
public nuisance, either in the ordinary sense or as a per se public nuisance.
On the per se issue, Evergreen pointed out that the city council's express
moratorium on medical marijuana dispensaries had lapsed four years earlier.
Evergreen suggested the City's assertion of an implied ban—based on the
omission in the City code of dispensaries as a permitted use—did not rise to
the level of an express legislative judgment necessary to make a particular use
a nuisance per se. Specifically, Evergreen argued that relying on the City's
supposed ban was too vague to support a preliminary injunction and violated due
process by failing to notify the public what activities were prohibited.
Evergreen asserted its activities fell within the “Retail businesses” category
authorized as a permitted use in the commercial community zoning district.
Alternatively, Evergreen argued it had not violated the City's municipal code
because the City did not require a business license before a new enterprise
opened its doors. Evergreen also argued state medical marijuana law, including
the Legislature's endorsement of cooperative and collective (§ 11362.775)
distribution endeavors, prevented the City from banning dispensary activities
as a public nuisance.
The trial court concluded Evergreen's operation of a medical
marijuana dispensary constituted a nuisance per se under City ordinances. The
court explained: “The LFMC lists all principal uses permitted … in the
Commercial Community zoning district. … Since dispensaries are not a
permissible use or a conditional or temporary use, the LFMC prohibits any such
unmentioned use.” Thus, the court determined Evergreen's “distribution is a
nuisance per se and must be enjoined.”
The trial court did not determine Evergreen failed to
qualify as a cooperative or collective (§ 11362.775) or otherwise failed to
comply with California medical marijuana law. The City's complaint and
preliminary injunction motion included no such allegations. Instead, the
court's ruling was based solely on Evergreen's per se nuisance violation of
City ordinances, which did not permit medical marijuana dispensaries. The trial
court found unpersuasive the dispensary's argument that because the City did
not require a business license, it violated no municipal law. The court
explained that the City's “zoning scheme effectively regulates what is and is
not allowed in the City of Lake Forest, thereby obviating the need for a
business license requirement.”3
FOOTNOTES
3 The court also rejected Evergreen's claim it fit within
the “Retail business” category. Whether Evergreen “fits” within any particular
category is intertwined with its claim those categories were too vague and
therefore violated due process by rendering all other uses a per se violation
of the City's zoning code. “Mindful of the prudential rule of judicial
restraint that counsels against rendering a decision on constitutional grounds
if a statutory basis for resolution exists” (NBC Subsidiary (KNBC-TV), Inc. v.
Superior Court (1999) 20 Cal.4th 1178, 1190 [86 Cal. Rptr. 2d 778, 980 P.2d
337]), we do not reach Evergreen's due process or related constitutional
claims. This appeal turns instead on the intersection of local ordinances and
statutory medical marijuana law.
II
DISCUSSION
Evergreen contends the trial court erred by granting the
City's preliminary injunction shutting down the dispensary as a per se
nuisance. We agree. An order granting a preliminary injunction is an appealable
order. (Code Civ. Proc., § 904.1, subd. (a)(6); Davenport v. Blue Cross of
California (1997) 52 Cal.App.4th 435, 445 [60 Cal. Rptr. 2d 641].) The
standards governing the trial court's consideration of a motion for a
preliminary injunction are well settled. “In deciding whether to issue a
preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the
likelihood that the moving party will ultimately prevail on the merits and (2)
the relative interim harm to the parties from issuance or nonissuance of the
injunction.” (Butt v. State of California (1992) 4 Cal.4th 668, 677–678 [15
Cal. Rptr. 2d 480, 842 P.2d 1240].) Appellate review is generally limited to
whether the trial court's decision constituted an abuse of discretion. (Ibid.)
However, “[t]o the extent that the trial court's assessment of likelihood of
success on the merits depends on legal rather than factual questions, our
review is de novo.” (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452,
1463 [47 Cal. Rptr. 3d 147]; see, e.g., Citizens for Better Streets v. Board of
Supervisors (2004) 117 Cal.App.4th 1, 6 [11 Cal. Rptr. 3d 349] [where
preliminary injunction ruling “depends on the construction of a statute, it is
to that extent reviewed de novo”].)
A. Section 11570 and Civil Code Section 3479
We begin by reviewing the statutory bases on which a city or
other local government entity may obtain an injunction to abate a public
nuisance for drug-related activities. Section 11570 and its related code
sections provide for injunctive relief to combat the use of property for illegal
drug activity. (See, e.g., Lew v. Superior Court (1993) 20 Cal.App.4th 866, 871
[25 Cal. Rptr. 2d 42] (Lew).) The Legislature enacted section 11570 in 1972 as
a key component of the Drug Abatement Act to address, with a “special[]” focus,
“premises where controlled substances are manufactured, kept and sold.” (People
ex rel. Gwinn v. Kothari (2000) 83 Cal.App.4th 759, 762, 765 [100 Cal. Rptr. 2d
29].) To that end, section 11570 defines as a public nuisance “[e]very building
or place used for the purpose of unlawfully selling, serving, storing, keeping,
manufacturing, or giving away any controlled substance … .” (Italics added.)
Nothing in section 11570 provides for criminal sanctions. Rather, the primary
enforcement remedy is injunctive relief obtained in nuisance abatement
proceedings against “the owner, lessee, or agent of the building … .” (§ 11571;
see Lew, at p. 872.) Further remedies include the public sale of chattels used
in maintaining the nuisance, a one-year closure of the building for any use, damages
in lieu of closure, and a civil penalty up to $25,000. (§ 11581; Lew, at p.
872.)
In People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th
1383 [70 Cal. Rptr. 2d 20], the court held the Compassionate Use Act of 1996
(CUA; § 11362.5), adopted by the voters to allow medical marijuana uses under
certain conditions (see § 11362.5), did not prevent the Attorney General from
obtaining an injunction under section 11570 against an Oakland medical
marijuana dispensary known as the Cannabis Buyers' Club (Peron, at p. 1390).
The court observed that the CUA addressed only the cultivation and possession
of marijuana, and did not authorize medical marijuana patients or their primary
caregivers to engage in sales of the drug. Specifically, the court noted the
new enactment mandated only that “ ‘[s]ection 11357, relating to the possession
of marijuana, and [s]ection 11358, relating to the cultivation of marijuana,
shall not apply to a patient, or to a patient's primary caregiver, who
possesses or cultivates marijuana for the personal medical purposes of the
patient upon the written or oral recommendation or approval of a physician.? ”
(Peron, at p. 1389.) The court concluded the CUA thus provides a “ ‘partial
defense’ ” in the medical marijuana context, applying “to charges of possession
[and cultivation], but not to charges of selling marijuana or possessing
marijuana for sale.” (Peron, at p. 1389; see People v. Trippet (1997) 56
Cal.App.4th 1532, 1547 [66 Cal. Rptr. 2d 559] (Trippet) [same; also observing
the CUA's literal terms exposed primary caregivers to criminal charges for
transporting marijuana down a hallway to their patients].)
The Legislature responded in 2003 with the Medical Marijuana
Program Act (MMPA; § 11362.7 et seq.), which includes provisions pertaining to
the sale and transportation of marijuana and to section 11570 and similar state
law provisions barring the use of property for illegal drug transactions. For
example, section 11362.775, part of the MMPA, provides that “[q]ualified
patients, persons with valid identification cards, and the designated primary
caregivers of qualified patients and persons with identification cards, who
associate within the State of California in order collectively or cooperatively
to cultivate marijuana for medical purposes, shall not solely on the basis of
that fact be subject to state criminal sanctions under [s]ection 11357
[(possession of controlled substances, including marijuana)], 11358
[(cultivation of marijuana)], 11359 [(possession for sale)], 11360 [(transportation)],
11366 [(maintaining a place for the sale, giving away, or use of marijuana)],
11366.5 [(making real property available for the manufacture, storage, or
distribution of controlled substances)], or 11570 [(abatement of nuisance
created by premises used for manufacture, storage, or distribution of
controlled substance)].” (Italics added.)
Section 11362.765, part of the MMPA, similarly immunizes
specified individual, rather than collective or group, activities including the
administration4 of medical marijuana to a qualified patient, instructing
qualified patients and their primary caregivers in “the skills necessary to
cultivate or administer marijuana for medical purposes,” and transporting or
delivering a qualified patient's medical marijuana. (§ 11362.765, subd.
(b)(1)–(3); see id., subd. (a) [“Subject to the requirements of this article,
the individuals specified in subdivision (b) shall not be subject, on that sole
basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366,
11366.5, or 11570.” (italics added)].) Thus, sections 11362.765 and 11362.775
expressly negate section 11570 as a nuisance remedy against the medical
marijuana activities identified in those sections.
FOOTNOTES
4 Section 11002 defines “[a]dminister[ing]” as “the direct
application of a controlled substance, whether by injection, inhalation,
ingestion, or any other means, to the body of a patient for his immediate needs
… .”
In addition to section 11570, general nuisance law
independently arms cities and other local governments with injunctive relief to
combat illegal drug-related property use. Civil Code section 3479 defines a
nuisance as “[a]nything which is injurious to health, including, but not
limited to, the illegal sale of controlled substances … .” (Italics added.) A
public nuisance “may be abated by any public body or officer authorized thereto
by law” (Civ. Code, § 3494), including the city attorney (Code Civ. Proc., §
731 [city attorney may file nuisance abatement action in the People's name];
Civ. Code, § 3491 [authorizing civil action as a nuisance remedy]). As used by
California courts, the term “abatement” “includes termination or removal of a
nuisance by way of injunctive process.” (47 Cal.Jur.3d (2010) Nuisances, § 62;
accord, Flahive v. City of Dana Point (1999) 72 Cal.App.4th 241, 244, fn. 4 [85
Cal. Rptr. 2d 51] (Flahive).) The city attorney may obtain an injunction to
quell a public nuisance. (See, e.g., People ex rel. Gallo v. Acuna (1997) 14
Cal.4th 1090, 1099–1101 [60 Cal. Rptr. 2d 277, 929 P.2d 596] (Acuna).) “A
public nuisance is one which affects at the same time an entire community or
neighborhood, or any considerable number of persons, although the extent of the
annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, §
3480.)
B. Per Se Nuisances
A city council may, by ordinance, declare what constitutes a
public nuisance. (Gov. Code, § 38771; Flahive, supra, 72 Cal.App.4th at p.
244.) This authority inheres in a municipality's general police power over
matters that may generate nuisances. (People v. Johnson (1954) 129 Cal.App.2d
1, 6–8 [277 P.2d 45]; see, e.g., 47 Cal.Jur.3d, supra, Nuisances, § 5.)
Moreover, understanding the “community aspect of [a] public nuisance” (Acuna,
supra, 14 Cal.4th at p. 1105) requires “consideration and balancing of a
variety of factors” (Beck Development Co. v. Southern Pacific Transportation
Co. (1996) 44 Cal.App.4th 1160, 1206–1207 [52 Cal. Rptr. 2d 518] (Beck))
uniquely suited to the legislative process. Thus, “a nuisance per se arises
when a legislative body with appropriate jurisdiction, in the exercise of the
police power, expressly declares a particular object or substance, activity, or
circumstance, to be a nuisance. … [T]o rephrase the rule, to be considered a
nuisance per se the object, substance, activity or circumstance at issue must
be expressly declared to be a nuisance by its very existence by some applicable
law.” (Ibid.) “ ‘Nuisances per se are so regarded because no proof is required,
beyond the actual fact of their existence, to establish the nuisance.’
[Citations.] [Fn. omitted.]” (City of Costa Mesa v. Soffer (1992) 11
Cal.App.4th 378, 382 [13 Cal. Rptr. 2d 735].)
Nevertheless, local government nuisance determinations are
not immune from judicial scrutiny. (Hurwitz v. City of Orange (2004) 122
Cal.App.4th 835, 852–854 [19 Cal. Rptr. 3d 213]; see, e.g., 47 Cal.Jur.3d,
supra, Nuisances, § 5.) For example, a municipality may not, either at common
law or under statutory power, designate property use a nuisance by mere
declaration, when in fact it is not. (Flahive, supra, 72 Cal.App.4th at p. 244,
fn. 4; Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 718 [97 Cal. Rptr.
840].) It also remains true under overriding state nuisance law that “[n]othing
which is done or maintained under the express authority of a statute can be
deemed a nuisance.” (Civ. Code, § 3482.)
C. California Law Provides for Dispensaries as a Matter of
Statewide Concern
1. Procedural Posture, Evergreen's Contentions, and Civil
Code Section 3482
As noted, the City filed its nuisance complaint against
Evergreen under the general nuisance statute (Civ. Code, § 3479) alleging a per
se public nuisance (Civ. Code, § 3480) because its zoning code omitted
dispensaries as a permitted use. Evergreen contends state medical marijuana law
authorizes the formation and operation of medical marijuana dispensaries, and
therefore local governments cannot ban them as a nuisance per se. Instead, the
local entity must prove that the particular manner in which a dispensary
operates creates a public nuisance. Although an activity authorized by statute
cannot be deemed a nuisance (Civ. Code, § 3482), the manner in which the
activity is performed may constitute a nuisance. (Friends of H Street v. City
of Sacramento (1993) 20 Cal.App.4th 152, 160 [24 Cal. Rptr. 2d 607] (H Street);
Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 129 [99 Cal.
Rptr. 350].) For example, “[w]here an improvement is erected improperly, it
cannot ‘be fairly stated that the legislature contemplated the doing of the
very act’ causing damage.” (Paterno v. State of California (1999) 74
Cal.App.4th 68, 104 [87 Cal. Rptr. 2d 754], original italics; see 47
Cal.Jur.3d, supra, Nuisances, § 35 [“A lawful business may by its particular
method of operation or by its location constitute a nuisance … .”]; see, e.g.,
Vowinckel v. N. Clark & Sons (1932) 216 Cal. 156, 164 [13 P.2d 733].)
Statutory immunity for an alleged nuisance arises “ ‘only
where the acts complained of are authorized by the express terms of the statute
… “ ‘ “… or by the plainest and most necessary implication from the powers
expressly conferred, so that it can be fairly stated that the Legislature
contemplated the doing of the very act which occasions the injury.” ’ ” ’ ”
(Zack's, Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163, 1179 [81 Cal.
Rptr. 3d 797] (Zack's, Inc.).) In other words, the conduct said to be a
nuisance must be “exactly what was lawfully authorized … .” (Jacobs Farm/Del
Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1532 [119
Cal. Rptr. 3d 529] (Jacobs Farm).) Accordingly, courts must scrutinize the
statutes in question to determine whether the Legislature intended to sanction
the alleged nuisance. (Zack's, Inc., at p. 1179.) Statutory authorization may
be evident “ ‘by the plainest and most necessary implication from the powers
expressly conferred’ by the legislative scheme.” (H Street, supra, 20
Cal.App.4th at p. 162.)
2. Standard of Review
“Statutory interpretation is a question of law [citation] in
which we ascertain the Legislature's intent ‘ “with a view to effectuating the
purpose of the statute, and construe the words of the statute in the context of
the statutory framework as a whole” ’ [citation].” (Del Cerro Mobile Estates v.
City of Placentia (2011) 197 Cal.App.4th 173, 183 [127 Cal. Rptr. 3d 413].)
“The Legislature declares state public policy, not the courts” (In re Marriage
of Tavares (2007) 151 Cal.App.4th 620, 628 [60 Cal. Rptr. 3d 39]), and courts
must “ ‘follow the Legislature's intent, as exhibited by the plain meaning of
the actual words of the law, “ ‘ “whatever may be thought of the wisdom,
expediency, or policy of the act” ’ ” ’ ” (Larry Menke, Inc. v. DaimlerChrysler
Motors Co., LLC (2009) 171 Cal.App.4th 1088, 1093 [90 Cal. Rptr. 3d 389]). In
interpreting a voter initiative, “we apply the same principles that govern
statutory construction” (People v. Rizo (2000) 22 Cal.4th 681, 685 [94 Cal.
Rptr. 2d 375, 996 P.2d 27]), and “our primary purpose is to ascertain and
effectuate the intent of the voters who passed the initiative measure” (In re
Littlefield (1993) 5 Cal.4th 122, 130 [19 Cal. Rptr. 2d 248, 851 P.2d 42]).
3. The CUA and MMPA
California medical marijuana law is embodied in two
enactments, the CUA and MMPA, which we briefly summarize. First, California
voters approved Proposition 215 in 1996, codified as the CUA at section
11362.5. (See generally Trippet, supra, 56 Cal.App.4th at p. 1546.) Subdivision
(d) of section 11362.5 provides: “Section 11357, relating to the possession of
marijuana, and [s]ection 11358, relating to the cultivation of marijuana, shall
not apply to a patient, or to a patient's primary caregiver, who possesses or
cultivates marijuana for the personal medical purposes of the patient upon the
written or oral recommendation or approval of a physician.”
Examining this language, the court in People v. Urziceanu
(2005) 132 Cal.App.4th 747, 772–773 [33 Cal. Rptr. 3d 859] (Urziceanu),
explained that “the Compassionate Use Act is a narrowly drafted statute
designed to allow a qualified patient and his or her primary caregiver to
possess and cultivate marijuana for the patient's personal use despite the
penal laws that outlaw these two acts for all others.” The Urziceanu court
observed that, apart from possession and cultivation, “the Compassionate Use
Act did not alter the other statutory prohibitions related to marijuana,
including those that bar the transportation, possession for sale, and sale of
marijuana.” (Id. at p. 773.) The Urziceanu court continued: “When the people of
this state passed [the CUA], they declined to decriminalize marijuana on a
wholesale basis. As a result, the courts have consistently resisted attempts by
advocates of medical marijuana to broaden the scope of these limited specific
exceptions. We have repeatedly directed the proponents of this approach back to
the Legislature and the citizenry to address their perceived shortcomings with
this law.” (Ibid.) Accordingly, Urziceanu held: “A cooperative where two people
grow, stockpile, and distribute marijuana to hundreds of qualified patients or
their primary caregivers, while receiving reimbursement for these expenses,
does not fall within the scope of the language of the Compassionate Use Act or
the cases that construe it.” (Ibid.)
Urziceanu, supra, 132 Cal.App.4th at page 773, acknowledged
that the exemptions provided in the CUA for a qualified patient to possess and
cultivate medical marijuana also apply to his or her primary caregiver. The CUA
defines a “primary caregiver” as “the individual designated by the person
exempted under this section who has consistently assumed responsibility for the
housing, health, or safety of that person.” (§ 11362.5, subd. (e); see People
v. Mentch (2008) 45 Cal.4th 274, 283 [85 Cal. Rptr. 3d 480, 195 P.3d 1061]
[primary caregiver must “(1) consistently provide[] caregiving, (2) independent
of any assistance in taking medical marijuana, (3) at or before the time he or
she assumed responsibility for assisting with medical marijuana”].) It follows,
however, that because the CUA authorizes for primary caregivers no more than
the same exemptions limiting a patient to marijuana cultivation and possession
(§ 11362.5, subd. (d)), the CUA did not authorize marijuana cooperatives or
dispensaries operated by or for primary caregivers any more than it did for
patients. (See Urziceanu, at p. 773.) Nevertheless, the CUA was not silent on
the issue of distribution.
The electorate, in enacting the CUA, “directed the state to
create a statutory plan to provide for the safe and affordable distribution of
medical marijuana to qualified patients.” (People v. Hochanadel (2009) 176
Cal.App.4th 997, 1014 [98 Cal. Rptr. 3d 347] (Hochanadel).) The electorate
expressly stated its intent in enacting the CUA was threefold: first, to
“ensure that seriously ill Californians have the right to obtain and use
marijuana for medical purposes where that medical use is deemed appropriate and
has been recommended by a physician who has determined that the person's health
would benefit from the use of marijuana in the treatment of [designated
illnesses] or any other illness for which marijuana provides relief”; second,
to “ensure that patients and their primary caregivers who obtain and use
marijuana for medical purposes upon the recommendation of a physician are not
subject to criminal prosecution or sanction”; and third, to “encourage the
federal and state governments to implement a plan to provide for the safe and
affordable distribution of marijuana to all patients in medical need of
marijuana.” (§ 11362.5, subd. (b)(1)(A)–(C), italics added.)
The electorate's express reference to “Californians” and
“all patients in medical need” plots a course for statewide policy action
rather than, for example, trial implementation in one or more localities. By
its terms, it does not contemplate local exclusion of some California patients.
Similarly, the electorate's intent to motivate the state and federal governments
to work together toward lawful medical marijuana accessibility manifests a
policy concern broader than local interests. To implement the voters' express
goal in passing the CUA to prompt state and federal measures to allow safe and
affordable medical marijuana distribution, the Legislature enacted the MMPA.
(Hochanadel, supra, 176 Cal.App.4th at p. 1014.) Reduced to its essence, this
statewide plan envisions locally grown, locally accessible medical marijuana.
As we explain, that does not mean medical marijuana patients or their primary
caregivers are confined to individualized efforts to grow a supply of their own
medicine. Rather, they may band together with others to meet their need. But
they must do so locally, in local cultivation projects, with distribution
tethered to the cultivation site.
The Legislature enacted the MMPA, effective January 1, 2004,
by adding sections 11362.7 through 11362.83 to the Health and Safety Code. (See
People v. Wright (2006) 40 Cal.4th 81, 93 [51 Cal. Rptr. 3d 80, 146 P.3d 531].)
Again, the enacting body's express intent warrants emphasis. The Legislature
expressly stated its intent in enacting the MMPA was to “(1) Clarify the scope
of the application of the [CUA] and facilitate the prompt identification of
qualified patients and their designated primary caregivers in order to avoid
unnecessary arrest and prosecution of these individuals and provide needed
guidance to law enforcement officers. [¶] (2) Promote uniform and consistent
application of the act among the counties within the state. [¶] (3) Enhance the
access of patients and caregivers to medical marijuana through collective,
cooperative cultivation projects.” (Stats. 2003, ch. 875, § 1(b)(1)–(3), p.
6422, italics added; see Historical and Statutory Notes, 40 pt. 2 West's Ann.
Health & Saf. Code (2007 ed.) foll. § 11362.7, pp. 365–366.)
Plainly, the Legislature expressly contemplated collective,
cooperative cultivation projects as a lawful means to obtain medical marijuana
under California law. The Legislature also expressly chose to place such
projects beyond the reach of nuisance abatement under section 11570, if
predicated solely on the basis that the project involves medical marijuana
activities. Specifically, section 11362.775 exempts members of collective or cooperative
medical marijuana cultivation projects not only from state criminal sanction
for project activities involving marijuana possession (§ 11357), cultivation (§
11358), possession for sale or distribution (§ 11359), transportation (§
11360), maintaining a place for the sale, use, or distribution of marijuana (§
11366), and using property to manufacture, store, or distribute controlled
substances (§ 11366.5), but also expressly prohibits nuisance prosecution under
section 11570.5
FOOTNOTES
5 Section 11362.775 provides: “Qualified patients, persons
with valid identification cards, and the designated primary caregivers of
qualified patients and persons with identification cards, who associate within
the State of California in order collectively or cooperatively to cultivate
marijuana for medical purposes, shall not solely on the basis of that fact be
subject to state criminal sanctions under Section 11357, 11358, 11359, 11360,
11366, 11366.5, or 11570.” (Italics & underscoring added.)
Although section 11362.775 refers to “criminal sanctions,”
the statute does not provide immunity against criminal prosecution under
section 11570 because, as noted above, there is no such enforcement remedy. The
Legislature only provided civil remedies to enforce section 11570. (§§ 11571,
11581; Lew, supra, 20 Cal.App.4th at p. 872.) To give effect to the
Legislature's inclusion of section 11570 among the penal provisions that
section 11362.775 renders inoperative for collective or cooperative medical
marijuana cultivation projects, we must conclude section 11362.775 also
supplants the purely civil remedies afforded by section 11570. Any other
construction renders section 11362.775's express reference to section 11570
mere surplusage, a result we must avoid. (PacifiCare of California v. Bright
Medical Associates, Inc. (2011) 198 Cal.App.4th 1451, 1468 [130 Cal. Rptr. 3d
756] (PacifiCare) [courts give significance to all the words chosen by the
Legislature to manifest its intent].)
We have noted that section 11570 is more specifically aimed
at enjoining or otherwise curbing the use of property for illegal drug activity
than Civil Code section 3479, the general nuisance statute. Accordingly, the
“special over the general” rule of statutory construction suggests that the
Legislature in section 11362.775 intended not only to bar civil nuisance
prosecutions under section 11570, but also to preclude nuisance claims under
Civil Code section 3479. (See People v. Jenkins (1980) 28 Cal.3d 494, 505 [170
Cal. Rptr. 1, 620 P.2d 587] [“The doctrine that a specific statute precludes
any prosecution under a general statute is a rule designed to ascertain and
carry out legislative intent.”].) To permit a nuisance prosecution under Civil
Code section 3479 when it is precluded under section 11570 would frustrate the
Legislature's express intent to exempt from nuisance abatement the medical
marijuana activities it identified in section 11362.775. In any event, Civil
Code section 3482 precludes this contradictory result by specifying that
“[n]othing which is done or maintained under the express authority of a statute
can be deemed a nuisance.” (Civ. Code, § 3482.) Stated another way, when the
Legislature has “ ‘ “ ‘ “contemplated the doing of the very act” ’ ” ’ ” said
to be injurious, it cannot be deemed a nuisance under Civil Code section 3479.
(Zack's, Inc., supra, 165 Cal.App.4th at p. 1179.) As noted, however, to avoid
nuisance abatement, the conduct must be “exactly what was lawfully authorized …
.” (Jacobs Farm, supra, 190 Cal.App.4th at p. 1532.)
Now, some 15 years after the electorate passed the CUA and
almost a decade after the Legislature adopted the MMPA to implement the voters'
call for a safe and affordable medical marijuana distribution plan for
seriously ill Californians, we must decide what medical marijuana activities
the Legislature intended to immunize in section 11362.775 and whether the
Legislature intended to allow local entities to ban these activities as a
nuisance. In Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th
734, 748 [115 Cal. Rptr. 3d 89] (Qualified Patients), we acknowledged the
Attorney General has concluded under section 11362.775 and the MMPA that
so-called “storefront” dispensaries may be lawful, but we did not reach the
issue. (See Guidelines for the Security and Non-diversion of Marijuana Grown
for Medical Use (A.G. Guidelines, or Guidelines)
<http://ag.ca.gov/cms_attachments/press/pdfs/n1601_medicalmarijunaguidelines.pdf>
[as of Feb. 29, 2012].) We now do so.
4. The Attorney General Guidelines
Relying on the A.G. Guidelines, Evergreen contends medical
marijuana dispensaries are authorized by section 11362.775's endorsement of
“collective[]” and “cooperative[]” activities, and, therefore, the City may not
ban what the Legislature has authorized. We briefly review the A.G. Guidelines.
“While the Attorney General's views do not bind us [citation], they are
entitled to considerable weight [citation].” (Freedom Newspapers, Inc. v.
Orange County Employees Retirement System (1993) 6 Cal.4th 821, 829 [25 Cal.
Rptr. 2d 148, 863 P.2d 218].)
The Legislature in the MMPA directed the Attorney General to
“develop and adopt appropriate guidelines to ensure the security and
nondiversion of marijuana grown for medical use by patients qualified under the
[CUA].” (§ 11362.81, subd. (d).) The A.G. Guidelines, issued in August 2008,
articulate their purpose as follows: to “(1) ensure that marijuana grown for
medical purposes remains secure and does not find its way to non-patients or
illicit markets, (2) help law enforcement agencies perform their duties
effectively and in accordance with California law, and (3) help patients and
primary caregivers understand how they may cultivate, transport, possess, and
use medical marijuana under California law.” (Guidelines, supra, at p. 1.)
The Legislature did not define the term “collective” or
“cooperative” used in its statement of intent in the MMPA (Stats. 2003, ch.
875, § 1(b)(3), p. 6422), nor the terms “collectively” and “cooperatively” in
section 11362.775. The Guidelines fill this gap by explaining that medical
marijuana patients or caregivers seeking to invoke section 11362.775 must
organize themselves as a cooperative or collective. “No business may call
itself a ‘cooperative’ (or ‘co-op’) unless it is properly organized and
registered as such a corporation under the Corporations or Food and
Agricultural Code.” (A.G. Guidelines, supra, at p. 8; see Corp. Code, § 12200
et seq.; Food & Agr. Code, § 54001 et seq.; see generally Gurnick, Consumer
Cooperatives: What They Are and How They Work (July/Aug. 1985) 8 L.A. Lawyer
22; Roberts, Understanding agricultural cooperatives (Feb. 1984) 4 Cal. Lawyer
13.)
The Guidelines observe that a cooperative “must file
articles of incorporation with the state and conduct its business for the
mutual benefit of its members. [Citations.] … Cooperative corporations are
‘democratically controlled and are not organized to make a profit for
themselves, as such, or for their members, as such, but primarily for their
members as patrons.’ [Citation.]” (Guidelines, supra, at p. 8.) Further,
“[c]ooperatives must follow strict rules on organization, articles, elections,
and distribution of earnings, and must report individual transactions from
individual members each year.” (Ibid.) Turning to the dictionary, the A.G.
Guidelines define a “collective” as “ ‘a business, farm, etc., jointly owned
and operated by the members of a group.’ [Citation.]” (Ibid.) Given this joint
ownership and operation requirement, “a collective should be an organization
that merely facilitates the collaborative efforts of patient and caregiver
members—including the allocation of costs and revenues.” (Ibid.)
The Guidelines also specify that distribution or sale to
nonmembers is prohibited: “State law allows primary caregivers to be reimbursed
for certain services (including marijuana cultivation), but nothing allows
individuals or groups to sell or distribute marijuana to non-members.
Accordingly, a collective or cooperative may not distribute medical marijuana
to any person who is not a member in good standing of the organization.”
(Guidelines, supra, at p. 10.)
In providing for “collective” and “cooperative” medical
marijuana activity, the MMPA does not use or define the term “dispensary.” (See
§ 11362.775.) The A.G. Guidelines address the topic under the heading,
“Storefront Dispensaries.” (Guidelines, supra, at p. 11.) The Attorney General
concludes in the Guidelines that although “dispensaries, as such, are not
recognized under the law,” “a properly organized and operated collective or
cooperative that dispenses medical marijuana through a storefront may be lawful
under California law … .” (Ibid.) It is not enough, however, that the MMPA uses
the terms “collective,” “collectively,? “cooperative,” and “cooperatively”;
rather, we must analyze those terms in their context to ascertain the
Legislature's intent. “The meaning of a statute may not be determined from a
single word or sentence; the words must be construed in context, and provisions
relating to the same subject matter must be harmonized to the extent possible.”
(Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal. Rptr. 115, 755 P.2d
299].)
5. State Medical Marijuana Law Only Authorizes Grow-site
Dispensaries
In its statement of intent in the MMPA, the Legislature
envisioned: “Enhance[d] … access of patients and caregivers to medical
marijuana through collective, cooperative cultivation projects.” (Stats. 2003,
ch. 875, § 1(b)(3), p. 6422, italics added.) What medical marijuana activities
did the Legislature expressly contemplate would occur at these sites? Section
11362.775 identifies those activities and immunizes them from nuisance and
criminal prosecution, as follows: marijuana possession (§ 11357), cultivation
(§ 11358), possession for sale or distribution (§ 11359), transportation (§
11360), maintaining a place for the sale, use, or distribution of marijuana (§
11366), and using property to grow, store, or distribute marijuana (§ 11366.5).
A dispensary is nothing more than “a place where medicines or medical or dental
aid are dispensed to ambulant patients … .” (Webster's 3d New Internat. Dict.
(1993) p. 653, col. 2 (Webster's).) In no less than three ways, the Legislature
in section 11362.775 expressly contemplated a dispensary function at collective
or cooperative cultivation sites, by authorizing a place for the sale, use, and
distribution of marijuana (§ 11366), using property to grow, store, and
distribute marijuana (§ 11366.5), and lawful distribution of medical marijuana
(§ 11359). Accordingly, we conclude a dispensary may be located at the site
where its members collectively or cooperatively cultivate their marijuana.
Of critical importance, the Legislature immunized the
activities specified in section 11362.775 ancillary to cultivation. In other
words, the Legislature did not provide blanket nuisance and penal immunity to
medical marijuana patients and their caregivers for these activities, but only
insofar as they gathered “collectively or cooperatively to cultivate marijuana
for medical purposes … .” (§ 11362.775, italics added.) The words the
Legislature chose in section 11362.775 and in its prologue about the purposes
of the MMPA demonstrate an intent to tether the immunized medical marijuana
activities to “cultivation project[]” sites. (Stats. 2003, ch. 875, § 1(b)(3),
p. 6422.) Evergreen argues that offsite dispensaries serve the Legislature's
intent to enhance patient and caregiver “access … to medical marijuana”
(ibid.). But it does not follow from a bare, liberalizing intent that every
means of increased access to medical marijuana is authorized. Rather, the words
the Legislature chose matter. The specific words the Legislature chose only
authorize “[e]nhance[d] … access of patients and caregivers to medical
marijuana through collective, cooperative cultivation projects.” (Ibid., italics
added; accord, § 11362.775.)
We discern no intent in the MMPA to authorize dispensaries
to operate independently from a cultivation site. Unlike a dispensary located
at a cultivation site, an offsite dispensary requires transporting marijuana
from a cultivation site or sites to the dispensary to be held for distribution.
Marijuana stocked at an offsite dispensary inevitably would exceed the amount
authorized for any single medical marijuana user (see §§ 11362.5, subd. (d),
11362.77) because, simply put, opening a dispensary as an outlet for only one
person would be pointless. Under well-established principles of constructive
possession, the gross quantity of marijuana at the site would rest in the
possession of every individual at the dispensary authorized to handle or
dispense it. (See, e.g., People v. Francis (1969) 71 Cal.2d 66, 73 [75 Cal.
Rptr. 199, 450 P.2d 591] [authority to sell or otherwise distribute a narcotic
necessarily entails its actual or constructive possession]; People v. Tolliver
(1975) 53 Cal.App.3d 1036, 1046 [125 Cal. Rptr. 905] [possession may be
established by physical or constructive control over an item, even where it is
nonexclusive or shared with others].) The CUA and MMPA, however, are clear in
limiting virtually all marijuana activities to personal usage amounts. This is
true in the CUA for possession and cultivation, which is authorized only in
quantities “for the personal medical purposes of the patient … .” (§ 11362.5,
subd. (d).)
The same is true in the MMPA for all medical marijuana
activities except those identified in section 11362.775, which by necessary
implication are authorized in group quantities given the authorization for
collective and cooperative cultivation. Specifically, the Legislature's
endorsement of group cultivation projects entitles qualified patients and
primary caregivers to produce medical marijuana not just for themselves (or the
primary caregiver's patient or patients), but in larger amounts to meet the
needs of all the cooperative's or collective's members. The Legislature
undoubtedly intended this result because seriously ailing patients and
overburdened primary caregivers may not be able to cultivate medical marijuana
themselves, as contemplated in the CUA. (§ 11362.5, subd. (d).) As noted,
section 11362.775 authorizes several medical-marijuana-related activities if
they are ancillary to group cultivation, including transportation (§ 11360). A
cooperative or collective member may thus move more than personal quantities of
marijuana around the cultivation site, whether in planting, tending,
harvesting, storing, or dispensing the marijuana as contemplated in the
activities authorized in section 11362.775 (e.g., using property to grow,
store, or distribute marijuana, and maintaining a place for the sale, use, or
distribution of marijuana). (See Trippet, supra, 56 Cal.App.4th at p. 1547
[statute's terms scrutinized for scope of authorized transportation].)
Section 11362.765, part of the MMPA, in contrast, authorizes
transportation and other activities involving medical marijuana in terms that
are in one sense more liberal than in section 11362.775, but in other ways more
restrictive. (We set out the terms of § 11362.765 in fn. 6 following this
paragraph, and the reader may refer back to the terms of § 11362.775 in fn. 5
ante.) The language the Legislature chose in section 11362.765 authorizes
greater latitude for transportation than in section 11362.775 because it omits
the word “cultivate” and therefore imposes no discernible geographic boundary
restricting transportation to the cultivation site. Section 11362.765 is more
limited, however, because it also omits the words “collectively or
cooperatively” found in section 11362.775, and therefore individuals lack
authorization to transport collective or cooperative quantities of marijuana.
Indeed, section 11362.765 expressly limits the purposes of authorized
transportation to those serving an individual rather than a group need. In
particular, section 11362.765 authorizes transportation of marijuana only for a
qualified patient's “own personal medical use” (subd. (b)(1), italics added)
or, if transported by a primary caregiver, “only to the qualified patient of
the primary caregiver …” (subd. (b)(2), italics added).6
FOOTNOTES
6 Section 11362.765 is lengthy, with three subdivisions.
Subdivision (a), states: “Subject to the requirements of this article, the
individuals specified in subdivision (b) shall not be subject, on that sole
basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5,
or 11570. However, nothing in this section shall authorize the individual to
smoke or otherwise consume marijuana unless otherwise authorized by this
article, nor shall anything in this section authorize any individual or group
to cultivate or distribute marijuana for profit.”
Subdivision (b) of section 11362.765 exempts from nuisance
and criminal prosecution as provided in subdivision (a), “all of the following:
[¶] (1) A qualified patient or a person with an [MMPA] identification card who
transports or processes marijuana for his or her own medical use. [¶] (2) A
designated primary caregiver who transports, processes, administers, delivers,
or gives away marijuana for medical purposes, in amounts not exceeding those
established in subdivision (a) of Section 11362.77 [(e.g., eight ounces of
dried marijuana for an individual patient)], only to the qualified patient of
the primary caregiver, or to the person with an [MMPA] identification card who
has designated the individual as a primary caregiver. [¶] (3) Any individual
who provides assistance to a qualified patient or a person with an [MMPA]
identification card, or his or her designated primary caregiver, in
administering medical marijuana to the qualified patient or person or acquiring
the skills necessary to cultivate or administer marijuana for medical purposes
to the qualified patient or person.” (Italics added.)
The Supreme Court in People v. Kelly (2010) 47 Cal.4th 1008,
1030 [103 Cal. Rptr. 3d 733, 222 P.3d 186], concluded the MMPA's specified
quantity restrictions in section 11362.77, subdivision (a), on an individual's
authorized amount of medical marijuana constituted an unlawful legislative
amendment of a more general authorization of reasonable amounts of medically
necessary marijuana intended by the electorate in the CUA in section 11362.5.
Nothing about this conclusion, however, remotely suggests a primary caregiver
may transport under section 11362.765, subdivision (b)(2), more marijuana on a
delivery to an individual patient than the patient reasonably needs. Thus,
subdivision (b)(2) of section 11362.765 is not a means for a primary caregiver
to transport more marijuana than his or her individual patients need, or to
otherwise divert marijuana to an offsite dispensary instead of making delivery,
as authorized by the statutory language, “only to” his or her qualified
patient.
Subdivision (c) of section 11362.765 contemplates that a
primary caregiver may be paid for his or her assistance in helping a patient
use medical marijuana. Specifically: “A primary caregiver who receives
compensation for actual expenses, including reasonable compensation incurred for
services provided to an eligible qualified patient or person with an
identification card to enable that person to use marijuana under this article,
or for payment for out-of-pocket expenses incurred in providing those services,
or both, shall not, on the sole basis of that fact, be subject to prosecution
or punishment under [s]ection 11359 [(possession for sale)] or 11360
[(transportation)].”
Thus, while section 11362.765 allows a qualified patient to
transport medical marijuana from the cultivation site in an amount limited to
his or her personal medical need and similarly authorizes a primary caregiver
to relay marijuana only for his or her patients' needs, section 11362.765 is
not an avenue by which marijuana lawfully may be transported from a cultivation
site to offsite dispensaries. It is a limited transportation pathway for
individuals carrying individual quantities of marijuana, not a distribution
highway. Nowhere else does the MMPA address transportation, except in section
11362.775, which allows for transportation of medical marijuana in collective
amounts at the cultivation site, as discussed. Accordingly, we conclude offsite
dispensaries are not authorized by California medical marijuana law because
nothing in the law authorizes the transportation and possession of marijuana to
stock an offsite location. Marijuana stocked at an offsite dispensary is held
ancillary to transportation, not cultivation. State law does not authorize
this. Rather, section 11362.775 requires that any collective or cooperative
activity involving quantities of marijuana exceeding a patient's personal
medical need must be tied to the cultivation site.
At oral argument, the City insisted a collective or
cooperative may not distribute medical marijuana even at its cultivation site
because section 11362.775 uses the word “cultivate” and not “distribution” or
similar terminology. In other words, the City views section 11362.775 as no
broader than the CUA in authorizing only cultivation of medical marijuana (§
11362.5, subd. (d)) and presumably also possession of cultivated marijuana
(ibid.), but not “distribution” or other activities. The plain terms of section
11362.775 dispel this notion. As noted above, the Legislature in no less than
three ways in section 11362.775 expressly contemplated and provided for a
dispensary function at collective or cooperative cultivation sites, by
authorizing a place for the sale, use, and distribution of marijuana (§ 11366),
using property to grow, store, and distribute marijuana (§ 11366.5) and, more
generally, the legal distribution of marijuana (§ 11359). The Urziceanu court
thus correctly observed, in distinguishing the MMPA from the CUA: “This new law
represents a dramatic change in the prohibitions on the use, distribution, and
cultivation of marijuana for persons who are qualified patients or primary
caregivers … . Its specific itemization of the marijuana sales law indicates it
contemplates the formation and operation of medicinal marijuana cooperatives
that would receive reimbursement for marijuana and the services provided in
conjunction with the provision of that marijuana.” (Urziceanu, supra, 132
Cal.App.4th at p. 785.)
We reject the City's suggestion at oral argument that a
patient or primary caregiver personally must engage in the physical cultivation
of marijuana to obtain the same at a collective or cooperative project site.
This unsupported notion conflicts with the MMPA's purpose to enhance ailing
patients' access to medical marijuana by authorizing group cultivation
projects. Indeed, the City's interpretation is again no more than a wishful
reversion to the CUA. In other words, if the patient or primary caregiver only
may access medical marijuana that he or she personally has grown, that is no
different than what the CUA authorizes. This construction of section 11362.775
as nothing more than a restatement of the CUA renders the provision mere
surplusage, contrary to the rules of statutory interpretation. (PacifiCare,
supra, 198 Cal.App.4th at p. 1468.) This baseless construction is also contrary
to California law governing cooperatives. A person may participate in a lawful
cooperative without any requirement that he or she personally must create goods
to stock the shelves of a consumer cooperative or grow the produce in an
agricultural one. (See Corp. Code, § 12200 et seq.; Food & Agr. Code, §
54001 et seq.) Consequently, there is no merit to the view that a qualified
patient's or primary caregiver's participation in a cooperative or collective
must include personal physical cultivation of marijuana.
In sum, in responding to the electorate's authorization in
the CUA for a plan to make medical marijuana available to all seriously ill
Californians (§ 11362.5, subd. (b)(1)), the Legislature in the MMPA did not
envision a distribution system of cultivation sites connected by transportation
routes to offsite dispensaries, or networks of offsite dispensaries shuttling
marijuana between each other. Instead, it is clear the Legislature—whatever the
wisdom of its policy choice, which we do not evaluate—provided only for locally
grown, locally available medical marijuana through collective or cooperative
“cultivation projects.”7 Because they are strictly local, these projects
necessarily would be sited throughout the state to ensure “all” “Californians”
“in medical need” (§ 11362.5, subd. (b)(1)(A)–(C)) have “[e]nhance[d] … access
… to medical marijuana through [these] projects,” with “uniform and consistent
application of the act” in this respect “among the counties within the state”
(Stats. 2003, ch. 875, § 1(b)(3) & (2), p. 6422).
FOOTNOTES
7 We note the prohibition against transportation to offsite
dispensaries is consistent with the Legislature's interest in ensuring the
security and nondiversion of medical marijuana. (§ 11362.81, subd. (d).) Additionally,
restricting the movement of more than individual amounts of medical marijuana
might further the voters goal of obtaining federal cooperation (or at least
tacit noninterference) in California's policy decision that safe and affordable
medical marijuana should be available to all Californians in medical need (see
§ 11362.5, subd. (b)(1)(C)).
We now turn to whether local entities may ban dispensary
activities the Legislature has expressly contemplated at these projects.
6. State Medical Marijuana Law Preempts a Local Per Se Ban
on Dispensaries
We conclude the trial court's decision to grant a nuisance
injunction based on the City's purported per se ban on medical marijuana
dispensaries violates state medical marijuana law. As discussed, the Legislature
in the MMPA contemplated the lawful operation of medical marijuana dispensaries
in the circumstances specified in section 11362.775, expressly immunized that
activity from nuisance abatement, and “[n]othing which is done or maintained
under the express authority of a statute can be deemed a nuisance” (Civ. Code,
§ 3482). In other words, the Legislature has “ ‘ “ ‘ “contemplated the doing of
the very act” ’ ” ’ ” (Zack's, Inc., supra, 165 Cal.App.4th at p. 1179) that
the City claims is always a nuisance, and therefore the City's per se position
against dispensaries cannot support a nuisance injunction.
Instead, the City must show the dispensary did not grow its
marijuana onsite or otherwise failed to comply with applicable state medical
marijuana law or permissible local regulations. Put another way, the City's
purported per se nuisance bar against medical marijuana dispensaries directly
contradicts the Legislature's intent to shield collective or cooperative
activity from nuisance abatement “solely on the basis” that it involves
distribution of medical marijuana authorized by section 11362.775, and because
the Legislature has determined the issue is a matter of statewide concern, the
City's ban is preempted.
“The first step in a preemption analysis is to determine
whether the local regulation explicitly conflicts with any provision of state
law. [Citation.]” (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 291 [219
Cal. Rptr. 467, 707 P.2d 840].) A directly conflicting regulation or ordinance is
preempted by state law. (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 704
[209 Cal. Rptr. 682, 693 P.2d 261].) “[W]hether state law preempts a local
ordinance … is a pure question of law subject to de novo review.” (Gonzales v.
City of San Jose (2004) 125 Cal.App.4th 1127, 1133 [23 Cal. Rptr. 3d 178].)
“A county or city may make and enforce within its limits all
local, police, sanitary, and other ordinances and regulations not in conflict
with general laws.” (Cal. Const., art. XI, § 7; see Gov. Code, § 37100.) Local
power thus necessarily embraces municipal affairs. The Constitution does not
forbid counties and cities from legislating on matters of statewide concern,
but state laws control over local ordinances with regard to local matters if
the subject matter is also of statewide concern.
“[W]hen local government regulates in an area over which it
traditionally has exercised control, such as the location of particular land
uses, California courts will presume, absent a clear indication of preemptive
intent from the Legislature, that such regulation is not preempted by state
statute.” (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139,
1149 [45 Cal. Rptr. 3d 21, 136 P.3d 821], original italics (Big Creek Lumber).)
However, “ ‘[i]f otherwise valid local legislation conflicts with state law, it
is preempted by such law and is void.’ ” (Sherwin-Williams Co. v. City of Los
Angeles (1993) 4 Cal.4th 893, 897 [16 Cal. Rptr. 2d 215, 844 P.2d 534]
(Sherwin-Williams).) “ ‘A conflict exists if the local legislation “
‘duplicates, contradicts, or enters an area fully occupied by general law,
either expressly or by legislative implication.’ ” ’ ” (Ibid., italics added.)
A local ordinance contradicts state law when it is inimical to or cannot be
reconciled with state law. (Id. at p. 898.) A local ordinance that prohibits
what a statute authorizes, or authorizes what the statute prohibits, is
inimical to the statute. (Big Creek Lumber, at p. 1161.)
Here, the City's per se ban on medical marijuana
dispensaries prohibits what the Legislature authorized in section 11362.775,
namely a place for the lawful distribution of medical marijuana and, more
generally, using property to grow, store, and distribute medical marijuana. The
Legislature has declared that these dispensary activities shall not be subject
to nuisance prosecution “solely on the basis” that they exist at a collective
or cooperative authorized in section 11362.775. Yet the City claims it is
entitled to a nuisance declaration and injunction in all cases solely on the
basis of this use since, under a per se ban, “no proof is required, beyond the
actual fact of … existence, to establish the nuisance. No ill effects need be
proved.” (McClatchy v. Laguna Lands Limited (1917) 32 Cal.App. 718, 725 [164 P.
41]; see City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1167 [100 Cal.
Rptr. 3d 1] (Kruse).) The contradiction is direct, patent, obvious, and
palpable.
The City attempts to justify the contradiction on grounds
that it does not seek an injunction solely based on the dispensary's existence,
but based on the City's asserted per se zoning ban against dispensaries. The
distinction is specious. As discussed, and as emphasized in the City's
briefing, the categorical bar erected by a per se ban is triggered solely on
the basis of the existence of the prohibited activity. (See Beck, supra, 44
Cal.App.4th at p. 1207 [“no inquiry beyond [a per se nuisance's] existence need
be made …”].) The City's distinction simply ignores that its ban erects a total
bar contradicting state law. If the City did not rely on its total ban, our
analysis would be different and would turn on whether there was a likelihood of
success the City could show Evergreen did not comply with state medical
marijuana law or permissible local regulations. But the City obtained the
preliminary injunction solely on the basis of its per se nuisance cause of
action.
At oral argument, the City justified its position on grounds
that its authority to regulate nuisances derives from the state Constitution,
while the MMPA is merely statutory. The City overlooks that the very source of
its authority declares a local entity may not make or enforce local decrees “in
conflict with general laws.” (Cal. Const., art. XI, § 7.) In essence, the City
attempts to invoke its power to enact per se nuisance zoning ordinances, and
yet disavow on appeal any contradiction with state law because the per se
result is a matter of local zoning law. This the City may not do. The City does
not suggest it is a home rule, charter city. (Cal. Const., art. XI, § 5.) But
even if it were, the result would be the same.
“Under the ‘home rule’ doctrine, California's Constitution
reserves to charter cities the right to adopt and enforce ordinances that
conflict with general state laws … .” (Barajas v. City of Anaheim (1993) 15
Cal.App.4th 1808, 1813 [19 Cal. Rptr. 2d 764].) The subject of the local
regulation must be a “ ‘ “municipal affair,” ’ ” rather than one of “ ‘
“statewide concern.” ’ ” (Johnson v. Bradley (1992) 4 Cal.4th 389, 399 [14 Cal.
Rptr. 2d 470, 841 P.2d 990].) Thus, for home rule and non-home-rule cities
alike, state law regulating a matter of statewide concern preempts a
conflicting local ordinance or rule. (City of Watsonville v. State Dept. of
Health Services (2005) 133 Cal.App.4th 875, 883 [35 Cal. Rptr. 3d 216]
(Watsonville).) “This is so even where the local measure involves a
traditionally municipal affair.” (Ibid.) “[T]he question of statewide concern
is the bedrock inquiry through which the conflict between state and local
interests is adjusted.” (California Fed. Savings & Loan Assn. v. City of
Los Angeles (1991) 54 Cal.3d 1, 17 [283 Cal. Rptr. 569, 812 P.2d 916].) “If …
the subject of the state statute is one of statewide concern and … the statute
is reasonably related to its resolution, then the conflicting charter city
measure ceases to be a ‘municipal affair’ pro tanto” and the Legislature may
“address[] the statewide dimension by its own tailored enactments.” (Ibid.)
Where there is statewide preemption, “home rule charter cities remain subject to
and controlled by applicable general state laws regardless of the provisions of
their charters … .” (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 61–62 [81
Cal. Rptr. 465, 460 P.2d 137].)
The Attorney General has concluded that “the establishment
and protection of a right to possess and use medical marijuana notwithstanding
state criminal statutes is plainly a matter of statewide concern.” (88
Ops.Cal.Atty.Gen. 113, 117, fn. 5 (2005), italics added [concluding a city may
not implement its own registry and identification card program for medical
marijuana users because it would duplicate a similar county-based program under
the MMPA].) We agree that California medical marijuana law by its nature and
terms plainly has statewide application. As discussed, the stated intent in
both the CUA and MMPA reflects a statewide concern. The electorate's express
reference in the CUA to “Californians” and “all patients in medical need” (§
11362.5, subd. (b)(1)(A) & (C), italics added) does not contemplate the per
se exclusion of patients in a particular locality.
The Legislature in the MMPA responded to the electorate's
call for “the safe and affordable distribution” of medical marijuana and
federal-state cooperation (§ 11362.5, subd. (b)(1)(C)) by immunizing dispensary
functions where qualified persons collectively or cooperatively cultivate
medical marijuana (§ 11362.775). As discussed, the immunity applies only where
collective or cooperative cultivation occurs and does not allow for the
transportation of marijuana to offsite dispensaries. The Legislature expressly
immunized the medical marijuana dispensary activities it contemplated in
section 11362.775 not only from penal prosecution, but also from nuisance
abatement. The MMPA expressly calls for the “uniform and consistent application
of the act among the counties within the state” and for “[e]nhance[d] … access
of patients and caregivers to medical marijuana through collective, cooperative
cultivation projects.” (Stats. 2003, ch. 875, § 1(b)(2) & (3), p. 6422.) In
our view, to allow total, per se local nuisance prohibitions against dispensary
activity at a collective or cooperative directly contradicts what the
Legislature intended to allow and would frustrate the Legislature's vision of a
statewide plan consisting of locally grown, locally available medical
marijuana.
7. The City Asserts It May Ban Dispensaries Despite State
Law
The City asserts that local governments may impose a per se
ban on medical marijuana dispensaries (MMD's) without contradicting state law.
We disagree. The City does not dispute that the Legislature in section
11362.775 authorizes lawful MMD's. Thus, the City's position is that a locality
may bar what state law authorizes, and shield that contradiction of state law
simply by labeling it a “zoning” matter. But the City fails to address or
discuss whether the express statements of intent in the CUA and MMPA reflect a
statewide concern. As noted, local contradiction of state law on a matter of
statewide concern is preempted. (Watsonville, supra, 133 Cal.App.4th at p. 883;
Barajas v. City of Anaheim, supra, 15 Cal.App.4th at p. 1813.)
Similarly, the City's preemption case quotations identify
contradiction of state law as a basis for preemption, but the City fails to
confront the issue. Instead, the City merely observes that the Legislature did
not expressly prohibit cities from enacting zoning regulations banning MMD's or
from bringing a nuisance action enforcing such ordinances. The City apparently
believes a contradiction triggering preemption arises only from an express
legislative statement. Preemption, however, need not be express.
(Sherwin-Williams, supra, 4 Cal.4th at p. 897.) Rather, a contradiction is
enough. (Ibid.) And a contradiction arises when a local ordinance prohibits
what a statute authorizes, rendering the local ordinance inimical to the
statute. (Big Creek Lumber, supra, 38 Cal.4th at p. 1161.)
The City devotes considerable attention to other categories
of preemption besides local contradiction of state law on a matter of statewide
concern. The City discusses express preemption and preemption arising where a
local law duplicates state law, and concludes neither applies. The City
discusses whether the Legislature stated an intent to fully occupy the field
concerning medical marijuana activities, and concluded unremarkably that it did
not, given the MMPA's express provision that “[n]othing in this article shall
prevent a city or other local governing body from adopting and enforcing … [¶]
… [¶] … laws consistent with this article.” (§ 11362.83, subd. (c).) The City
also extensively analyzes whether the Legislature impliedly occupied the field
of medical marijuana regulation and if so, whether it did so completely and
fully, or only partially, concluding it did neither. (See Kruse, supra, 177
Cal.App.4th at pp. 1175–1176.)
The City's thorough discussion of preemption categories
other than local contradiction of state law does nothing to resolve, and
instead obfuscates, the core contradiction that section 11362.775 authorizes
lawful MMD's, but the City prohibits them.
This lacuna, as we see it, in the City's analysis is
compounded by disregard for Civil Code section 3482's specification that
nothing done under statutory authority can be deemed a nuisance. The City
observes this statutory nuisance immunity applies narrowly, only “where the
alleged nuisance is exactly what was lawfully authorized … .” (Jacobs Farm,
supra, 190 Cal.App.4th at p. 1532, italics added.) But, as discussed,
dispensary activity at collective or cooperative cultivation sites is exactly
among the uses the Legislature immunized from penal or nuisance interdiction
“solely on the basis” of that activity. (§ 11362.775.) Specifically, the
Legislature expressly contemplated patients and caregivers maintaining a place
for the sale or distribution of marijuana at collectives and cooperatives, and
using that property to store and distribute marijuana, which amounts to
operating a dispensary. (Ibid.) A local per se ban on this use proscribes it
and subjects it to nuisance prosecution solely on the basis that it occurs at
the site, directly contradicting state law.
In our view, the City unpersuasively evades this
contradiction by noting that the Legislature did not expressly prohibit cities
from enacting zoning regulations banning MMD's. But as discussed, the
Legislature need not expressly preempt a particular type of ordinance; rather,
a contradiction requiring preemption arises when a local ordinance prohibits
what the statute authorizes. The preemptive effect of Civil Code section 3482
arises not because the Legislature has expressly stated its preemptive intent
in a particular statute, but rather where it has determined “ ‘the acts
complained of’ ” are not a nuisance. (Zack's, Inc., supra, 165 Cal.App.4th at
p. 1179, italics added.) That is the case here for dispensaries at collective
or cooperative cultivation sites under section 11362.775. While this section
does not use the term “dispensary,” it immunizes from nuisance prosecution the
core acts of storing and distributing marijuana that take place at a
dispensary. “ ‘[W]here the acts complained of are authorized by the express
terms of the statute … “ ‘ “… or by the plainest and most necessary implication
from the powers expressly conferred, … it can be fairly stated that the
Legislature contemplated the doing of the very act which occasions the injury,”
’ ” ’ ” and Civil Code section 3482 applies to prevent a nuisance prosecution.
(Zack's, Inc., at p. 1179.) We therefore disagree that local entities may ban
dispensaries and obtain a per se nuisance injunction solely on that basis,
despite contrary state law.8
FOOTNOTES
8 The City does not argue the Legislature in Government Code
section 37100 implicitly engrafted onto local codes the federal criminal
prohibitions against marijuana-related activities. The trial court apparently
held this view. Government Code section 37100 provides generally that local
legislative bodies ?may pass ordinances not in conflict with the Constitution
and laws of the State or the United States.” (Italics added.) Citing Government
Code section 37100, the trial court commented that for a city “[t]o allow … the
operation of businesses that engage in the sale of substances made illegal
under federal law … flies in the face of long standing principles of federal
law supremacy … .”
As we explain below, however, the supremacy of federal law
under the United States Constitution does not extend to dictating the contents
of state or local law, nor to conscripting state or local officials to bolster
federal law. Indeed, the opposite is true: the Constitution prohibits this
usurpation. (See fn. 12, post.) In any event, unlike the CUA and MMPA,
Government Code section 37100 does not address medical marijuana at all.
Perhaps for this reason, the City does not rely on the trial court's theory
that, in effect, Government Code section 37100 determines statewide medical
marijuana policy by requiring lockstep local mirroring of federal law. Instead,
the City abandons any reliance on Government Code section 37100, describing it
as “completely irrelevant to this case” because the City had not attempted to
enact permissive medical marijuana ordinances purportedly conflicting with
federal law. Therefore, we do not address the issue further.
8. Section 11362.768 and Lawful Local Regulation of
Dispensaries
The City relies on a January 2011 amendment to the MMPA,
codified at section 11362.768, as authority for local governments to ban
medical marijuana dispensaries. Section 11362.768 provides that in zoning
districts where a local government requires a local business license, no
medical marijuana project with a storefront or mobile retail outlet may be
located within 600 feet of a school. (§ 11362.768, subds. (b) & (e).)9
FOOTNOTES
9 In full, these subdivisions state: “No medical marijuana
cooperative, collective, dispensary, operator, establishment, or provider who
possesses, cultivates, or distributes medical marijuana pursuant to this
article shall be located within a 600-foot radius of a school.” (§ 11362.768,
subd. (b).) “This section shall apply only to a medical marijuana cooperative,
collective, dispensary, operator, establishment, or provider that is authorized
by law to possess, cultivate, or distribute medical marijuana and that has a
storefront or mobile retail outlet which ordinarily requires a local business
license.” (§ 11362.768, subd. (e).) Subdivision (d) of section 11362.768
specifies that the 600-foot radius does not apply to a licensed residential
medical or elder care facility that utilizes medical marijuana. And subdivision
(h) of section 11362.768 defines a “school” as “any public or private school providing
instruction in kindergarten or grades 1 to 12, inclusive, but does not include
any private school in which education is primarily conducted in private homes.”
Section 11362.768 also provides: “Nothing in this section
shall prohibit a city, county, or city and county from adopting ordinances or
policies that further restrict the location or establishment of a medical
marijuana cooperative, collective, dispensary, operator, establishment, or
provider.” (§ 11362.768, subd. (f), italics added.) Section 11362.768 further
provides: “Nothing in this section shall preempt local ordinances, adopted
prior to January 1, 2011, that regulate the location or establishment of a
medical marijuana cooperative, collective, dispensary, operator, establishment,
or provider.” (§ 11362.768, subd. (g), italics added.)
Courts “should give to the words of [a] statute their
ordinary, everyday meaning … .” (Halbert's Lumber, Inc. v. Lucky Stores, Inc.
(1992) 6 Cal.App.4th 1233, 1238–1239 [8 Cal. Rptr. 2d 298].) The words actually
used by the Legislature serve as the surest touchstone for its intent because
those words, and not others, have “successfully braved the legislative
gauntlet.” (Id. at p. 1238.) “The words of the statute must be construed in
context, keeping in mind the statutory purpose …” (Dyna-Med, Inc. v. Fair
Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [241 Cal. Rptr. 67,
743 P.2d 1323]), which requires harmonizing “statutes or statutory sections
relating to the same subject … to the extent possible” (ibid.).
If there was ever any doubt the Legislature intended to
allow medical marijuana cooperatives and collectives to dispense marijuana, and
we do not believe there was, the newly enacted section 11362.768 has made clear
by its repeated use of the term “dispensary” that a dispensary function is
authorized by state law. (§ 11362.768, subds. (b), (c), (d), (e), (f) &
(g).)
We disagree with the City that in using the words “regulate”
and “restrict” in section 11362.768, the Legislature intended to authorize
local governments to ban medical marijuana dispensaries that are otherwise
lawful “pursuant to this article” (§ 11362.768, subd. (b)), i.e., lawful under
California medical marijuana law as enacted in the CUA and MMPA. The
Legislature did not use the words “ban” or “prohibit.” The City relies on the
dictionary meanings of “regulate,” “regulation,” and “restriction,” all of
which, as one would expect according to the ordinary meaning of those words,
import at most only “controlling by rule or restriction” or “A limitation or
qualification.” (Black's Law Dict. (8th ed. 2004) pp. 1311, 1341.) The ordinary
meaning of these phrases suggest something less than a total ban or prohibition
against activities contemplated by the Legislature. Notably, the City omits from
its discussion any definition of “ban,” which means ?to prohibit, esp[ecially]
by legal means.” (Webster's, supra, at p. 169.) We conclude the Legislature's
decision not to include an outright ban or prohibition among the local
regulatory powers authorized in section 11362.768 was not accidental.10
FOOTNOTES
10 At oral argument, the City insisted that its total
regulatory exclusion of medical marijuana dispensaries did not amount to a ban.
We remain mystified by the assertion, which contradicts the City's position
below and borders on Orwellian doublespeak.
Read in context with section 11362.775 and with the purpose
of California's medical marijuana statutory program, the words “regulate” and
“restrict” do not bear out the City's conclusion that the terms authorize a
“Complete Ban” at the municipal level. The City relies on dicta from inapposite
cases stating generally that “‘[r]egulation means the prohibition of something
…’” and “Prohibition does not, therefore, establish a per se excess of
regulatory power.” (Personal Watercraft Coalition v. Marin County Bd. of
Supervisors (2002) 100 Cal.App.4th 129, 150 [122 Cal. Rptr. 2d 425] [county ban
on personal watercraft upheld, where not contrary to state law]; cf., e.g.,
California Veterinary Medical Assn. v. City of West Hollywood (2007) 152
Cal.App.4th 536, 557–562 [61 Cal. Rptr. 3d 318] [upholding city prohibition
against routine cat declawing, absent any discernible, contrary state
intention].) But none of these cases involved the scenario here, where a local
entity has attempted to ban as a per se nuisance activities the Legislature
expressly exempted from nuisance abatement.
The City also relies on the fact, reiterated in the
legislative history of section 11362.768 and confirmed in the statute's express
terms, that subdivisions (f) and (g) of section 11362.768 do not preempt, but
instead authorize more restrictive local regulation of dispensaries than
section 11362.768, subdivision (b)'s 600-foot school radius.11 But nothing in
the legislative history or express terms of section 11362.768 supports the
City's reading of the statute as authority for total local bans against medical
marijuana dispensaries.
FOOTNOTES
11 We grant the City's request to take judicial notice of
section 11362.768's legislative history. (Evid. Code, §§ 452, subd. (c), 453;
In re Tobacco II Cases (2009) 46 Cal.4th 298, 316 [93 Cal. Rptr. 3d 559, 207
P.3d 20].)
As discussed, a local government cannot ban as a nuisance
exactly what the Legislature contemplated would occur at cooperative and
collective medical marijuana cultivation sites. The Legislature decided in
section 11362.775 to insulate medical marijuana collectives and cooperatives
from nuisance prosecution “solely on the basis” that they engage in a
dispensary function. We therefore cannot interpret the words “regulate” and “restrict”
in section 11362.768 to mean that local governments may impose a blanket
nuisance prohibition against dispensaries. To do so would, as discussed,
frustrate the Legislature's intent to authorize locally grown, locally
available medical marijuana at collective, cooperative cultivation projects
accessible to all Californians in medical need.
That is not to say that cities and counties do not have wide
authority to regulate and restrict medical marijuana dispensaries. Their
authority is as wide as the general police power to legislate for the health,
safety, and welfare of their residents (Cal. Const., art. XI, § 7; see, e.g.,
Hernandez v. City of Hanford (2007) 41 Cal.4th 279, 296–297 [59 Cal. Rptr. 3d
442, 159 P.3d 33] [general legitimacy of zoning for public welfare]), and
enjoys presumptive validity “when local government regulates in an area over
which it traditionally has exercised control,” such as oversight of land use
(Big Creek Lumber, supra, 38 Cal.4th at p. 1149). This, however, is subject to
the preemptive command of state law that nothing authorized by statute may be
deemed a nuisance, including dispensary activities “solely on the basis” that
they occur at a medical marijuana collective or cooperative as provided in
section 11362.775.
9. Other Medical Marijuana Case Law
We emphasize that our opinion depends, as it must, on the
facts before us. We do not consider, for example, a municipal regulatory scheme
that permits, subject to specified conditions, medical marijuana dispensaries
at cooperative or collective cultivation projects in certain zoning districts
but not in others within the local jurisdiction. Among other factors, such a
scheme would have to be evaluated against the Legislature's intent to permit
locally grown, locally accessible medical marijuana for sick patients,
including those whose medical condition may not allow them to travel far, nor
allow their primary caregivers to leave their side for long. Arguably, such a
scheme may be consistent with California medical marijuana law because it does
not bar dispensary activities authorized by section 11362.775 “solely on the
basis” that they occur at a collective or cooperative, but instead based on
their location in a prohibited zoning district when a permissive district in
the jurisdiction is available instead. In other words, depending on the facts,
such a scheme might not trigger preemption by disclosing a local legislative
judgment that medical marijuana dispensary activity constitutes a per se
nuisance, contrary to state law.
But here we confront precisely such a local regime in which
the City's ordinances create a per se bar against medical marijuana
dispensaries in all instances, without requiring the City to establish that the
defendant collective or cooperative does not comply with California medical
marijuana law or permissible local regulations. Thus, this case is unlike those
on which the City relies to support a preliminary injunction against a
dispensary, including County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861 [121
Cal. Rptr. 3d 722] (Hill), Kruse, supra, 177 Cal.App.4th 1153, and City of
Corona v. Naulls (2008) 166 Cal.App.4th 418 [83 Cal. Rptr. 3d 1] (Naulls).
These cases instead provide examples of permissible local measures that do not
purport to institute a per se, permanent ban on medical marijuana dispensaries
authorized under California law in section 11362.775.
The earliest of these cases, Naulls, involved a medical
marijuana dispensary operator who violated city code provisions when he failed
to disclose the nature of his proposed use, failed to obtain a business license
that accurately reflected his proposed use, failed to obtain city or planning
department approval, and failed to seek a variance, an amendment to the city's
zoning plan, or otherwise follow established procedures to qualify as a “
‘similar use’ ” to those expressly permitted within the city zoning scheme.
(Naulls, supra, 166 Cal.App.4th at pp. 428–429, 432–433.)
Similarly in Kruse the dispensary operator ignored the
city's business license and tax certificate requirements and the required
procedure for approval of uses “ ‘difficult[] [to] categoriz[e]’ ” or not
listed in the city code, and instead opened his establishment without a
license, a certificate, or the required city approval. (Kruse, supra, 177
Cal.App.4th at p. 1159.)
In Hill, county ordinances expressly authorized medical
marijuana dispensaries in “C-1” zoning districts, subject to certain
requirements. The county brought a nuisance action against the dispensary and
its operator for failing to meet several of those requirements, including
failure to obtain a business license, a conditional use permit, and a zoning
variance to locate within a 1,000-foot radius of a public library. (Hill,
supra, 192 Cal.App.4th at p. 865.)
A common thread among Naulls, Kruse, and Hill is that local
ordinances that are “applicable to all businesses” (Hill, supra, 192
Cal.App.4th at p. 865), such as the requirement of a business license, validly
apply to medical marijuana dispensaries and furnish grounds for injunctive
relief when violated. Such provisions are facially neutral concerning medical
marijuana dispensaries and do not purport to bar them, contrary to section
11362.775, “solely on the basis” of dispensary activities the Legislature determined
are not a nuisance. Here, in contrast, the City code did not require a business
license and the City instead attempted to rely on its alleged per se nuisance
bar against dispensaries.
Kruse and Naulls also both involved temporary local
moratoriums on medical marijuana dispensaries, which the City here chose not to
renew. During the pendency of the appeal in Hill, Los Angeles County enacted a
ban against medical marijuana dispensaries (Hill, supra, 192 Cal.App.4th at p.
866, fn. 4), but neither the county nor the reviewing court relied on the ban
in addressing the validity of the preliminary injunction that issued based on
the dispensary's code violations (id. at pp. 866, fn. 4, 869, fn. 6).
The Kruse court found that state medical marijuana law
neither expressly nor impliedly preempted the City of Claremont's moratorium on
medical marijuana dispensaries, and therefore did not preclude the city from
denying the dispensary a business license or permit based on the moratorium.
(Kruse, supra, 177 Cal.App.4th at pp. 1168–1176.) The court, however, did not
address Civil Code section 3482 and, like the City here, did not confront the
contradiction inherent in a local ordinance that designates as a nuisance
dispensary activities the Legislature has determined in section 11362.775 are
not, “solely on the basis” of those activities, a nuisance. We therefore find
the analysis in Kruse incomplete and unpersuasive on the issue presented here.
Apart from addressing requirements that apply to all
businesses, Hill further stands as an example under section 11362.768 that
local governments may regulate dispensaries directly and distinct from other
businesses or property uses, restricting with conditions their location,
establishment, and operation.12 The court in Hill observed, and we agree, “If
there was ever any doubt about the Legislature's intention to allow local
governments to regulate marijuana dispensaries, and we do not believe there
was, the newly enacted section 11362.768 … has made clear that local government
may regulate dispensaries.” (Hill, supra, 192 Cal.App.4th at p. 868.) The
Legislature has codified Hill by expressly providing that “local ordinances
that regulate the location, operation, or establishment of a medical marijuana
cooperative or collective” are consistent with California medical marijuana law
(§ 11362.83).13
FOOTNOTES
12 Presumably those conditions would not require local
officials to directly engage in any aspect of marijuana production, for
example, by handling marijuana for onsite or offsite testing or any other
purpose. Possession and other marijuana-related activities are still barred by
federal law in most instances as a criminal offense, and requiring local
government employees to engage in conduct prohibited by federal law would
invite federal preemption of the ordinance based on an irreconcilable conflict.
Such a conflict occurs where “‘simultaneous compliance’” by the affected person
“ ‘with both [the local] law and federal directives is impossible.’
[Citation.]” (Qualified Patients, supra, 187 Cal.App.4th at p. 758.) Local
conditional use permits issued to dispensaries on other grounds, however,
generally would not trigger federal preemption because issuing a permit does not
constitute a local government command to operate a dispensary. (See ibid.)
Simply put, a permit holder need not act on the permit. In other words, no one
must do what a permit or permit condition exempts from state or local
interdiction. The necessity of obtaining the permit functions, in effect, as an
additional condition authorized by state law (§ 11362.83 [authorizing local
regulations consistent with state law]) for exemption from state criminal law
and from nuisance abatement. As we observed in Qualified Patients, at page 759,
“The fact that some individuals or collectives or cooperatives might choose to
act in the absence of state criminal law in a way that violates federal law
does not implicate the city in any such violation.”
Similarly, as shown in Qualified Patients, to conclude that
a local government may not abide by section 11362.83 by imposing criminal and
nuisance exemption conditions consistent with state law is to conclude,
contrary to basic federalism precepts, that the locality must instead enforce
federal law. Thus, “ ‘the unstated predicate’ ” of the thesis that a further
local condition on an exemption from state drug law triggers preemption of the
condition as an obstacle to the enforcement of federal law is “ ‘that the
federal government is entitled to conscript a state's law enforcement officers
[or a local entity's public officials] into enforcing federal enactments, over
the objection of that state … .’ ” (Qualified Patients, supra, 187 Cal.App.4th
at p. 761.) “The Federal Government,” however, “may neither issue directives
requiring the States to address particular problems, nor command the States'
officers, or those of their political subdivisions, to administer or enforce a
federal regulatory program.” (Printz v. United States (1997) 521 U.S. 898, 935
[138 L. Ed. 2d 914, 117 S. Ct. 2365].) We therefore find patently erroneous the
notion that a further local condition on exemption from state drug law or
nuisance law triggers federal preemption because it “[f]oster[s]” drug activity
(cf. County of Butte v. Superior Court (2009) 175 Cal.App.4th 729, 742 [96 Cal.
Rptr. 3d 421] (dis. opn. of Morrison, J.)) or demonstrates an intent of local
officials to aid and abet federal law violations. The flawed premise of this
position is again simply the unconstitutional federal conscription of local
resources.
If anything, a local permit framework may aid federal
officials in formulating and enforcing federal policy concerning medical
marijuana. The result may be negative, viewed from California's perspective, if
federal authorities gain access to local government records to identify and
shut down dispensary cultivation sites that California has determined are
lawful. Or it may be positive by identifying, by their nonparticipation in the
permit process, rogue sources of illicit marijuana against whom federal, state,
and local authorities may join forces, or otherwise cooperate as contemplated
by the people in enacting the CUA. In any event, these are policy choices for
state, local, and federal officials to weigh, not the courts.
13 Section 11362.83 states in full: “Nothing in this article
shall prevent a city or other local governing body from adopting and enforcing
any of the following: [¶] (a) Adopting local ordinances that regulate the
location, operation, or establishment of a medical marijuana cooperative or
collective. [¶] (b) The civil and criminal enforcement of local ordinances
described in subdivision (a). [¶] (c) Enacting other laws consistent with this
article.”
We also agree with Hill that nothing in section 11362.775
prevents local governments from regulating dispensaries. As Hill explained, “By
its terms, [section 11362.775] exempts qualified patients and their primary
caregivers (who collectively or cooperatively cultivate marijuana for medical
purposes) from nuisance laws ‘solely on the basis of [the] fact’ that they have
associated collectively or cooperatively to cultivate marijuana for medical
purposes. … The statute does not confer on qualified patients and their
caregivers the unfettered right to cultivate or dispense marijuana anywhere
they choose. The County's constitutional authority to regulate the particular
manner and location in which a business may operate (Cal. Const., art. XI, § 7)
is unaffected by section 11362.775.” (Hill, supra, 192 Cal.App.4th at p. 869,
second italics added.) Put another way, although an activity authorized by
state law cannot be a nuisance (Civ. Code, § 3482), local governments may
regulate and enforce by nuisance abatement law the manner in which the activity
is performed (§§ 11362.768, 11362.83).
Here, unlike in Hill, the City did not obtain its nuisance
injunction based on the manner in which Evergreen operated, but instead based
on a total ban against dispensaries rendering them a per se nuisance, contrary
to state law determining dispensary activities are not necessarily a nuisance.
As a matter of law, the City therefore could not prevail on its per se nuisance
cause of action, and the trial court erred in granting the preliminary injunction.
III
CONCLUSION
We recognize our conclusions today may disappoint the
parties in this case and the opposing sides in California's ongoing debate
concerning medical marijuana: dispensaries, because they may wish to operate
independently of cultivation sites, and some cities and other local
governments, because they want to ban dispensaries altogether. We emphasize
that these are policy outcomes outside our power to reach or grant because we
are constrained by the voters' and the Legislature's enactments. Although
courts will continue to resolve disputes over the meaning of the CUA and MMPA,
policy choices about the role of medical marijuana in this state, including any
changes or adjustments that may be made, rest ultimately with the people and
their representatives.
IV
DISPOSITION
The preliminary injunction is reversed, our stay of the
injunction is dissolved when the remittitur issues from this court, and the
matter is remanded for further proceedings not inconsistent with this opinion.
Evergreen is entitled to its costs on appeal.
Rylaarsdam, Acting P. J., and Fybel, J., concurred.
