COUNTY OF LOS ANGELES v. ALTERNATIVE MEDICINAL CANNABIS
COLLECTIVE
B233419
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,
DIVISION ONE
207 Cal. App. 4th 601; 143 Cal. Rptr. 3d 716;
July 2, 2012, Opinion Filed
REVIEW GRANTED 09/19/12 DEPUBLISHED
OPINION
MALLANO, P. J.—Defendants Alternative Medicinal Cannabis
Collective (doing business as Alternative Medicinal Collective of Covina), Erik
M. Andresen, Kara Hill, Justin W. Samperi, Martin Hill, and Mardy and Nordy
Ying (individually and as trustees) appeal from an order granting a preliminary
injunction prohibiting them from operating a medical marijuana “dispensary” in
any unincorporated area of the County of Los Angeles (County). Defendants
contend that the order granting the injunction should be reversed because
County's blanket ban on medical marijuana dispensaries conflicts with, and is
preempted by, the Compassionate Use Act (Proposition 215) enacted by the voters
in 1996 authorizing the use of marijuana for medical purposes and the Medical
Marijuana Program enacted by the Legislature (as amended) authorizing the
operation of a “medical marijuana cooperative, collective, dispensary” in a
“storefront … outlet.” We agree that County's complete ban on all “medical
marijuana dispensaries,” including collectives and cooperatives authorized
under Health and Safety Code section 11362.775, conflicts with, and is thus
preempted by, California's medical marijuana laws. Accordingly, we reverse the
order granting a preliminary injunction.
BACKGROUND
On December 7, 2010, the Los Angeles County Board of
Supervisors banned medica l marijuana dispensaries in all zones in
unincorporated areas of County effective January 6, 2011. (County of Los
Angeles v. Hill (2011) 192 Cal.App.4th 861, 866, fn. 4 [121 Cal. Rptr. 3d 722]
(Hill).) Los Angeles County Code (LACC) section 22.56.196, subdivision B
provides that “medical marijuana dispensaries which distribute, transmit, give,
or otherwise provide marijuana to any person, are prohibited in all zones in
the County.” Subdivision A.1 plainly states the purpose of the ordinance is to
“ban medical marijuana dispensaries in all zones in the County.” The ordinance
provides that the ban shall remain in effect unless and until the Court of
Appeal or the California Supreme Court deems it to be “unlawful,” in which
event the provisions of the former ordinance, which required a conditional use
permit and business license and imposed location restrictions and operating
requirements (set forth in § 22.56.196, subds. D–H), will again take effect.
In March of 2011, County, which had previously sought to
enjoin defendants' operation for failure to comply with the provisions of the
prior version of LACC section 22.56.196, as we set forth in Hill, supra, 192
Cal.App.4th at page 865, filed a new nuisance action against defendants on the
basis of the newly enacted ban on medical marijuana dispensaries. The first
cause of action sought injunctive relief. It alleged, “The Defendants, and each
of them, have violated Los Angeles County Code Section 22.56.196 B., Medical
Marijuana Dispensaries, by operating or permitting the operation of [a medical
marijuana dispensary] on the Subject Property when such use is banned in all
zones in the unincorporated areas of Los Angeles County. In so acting, the
Defendants, and each of them, have been using the Subject Property in a manner
that is not permitted by the Los Angeles County Code.” County also alleged, on
information and belief, that defendants “have been operating [a medical
marijuana dispensary] which is not in compliance with state law. Defendant[s]
are not a collective or cooperative or any other business entity that falls
within the protections afforded to [sic] by the [Medical Marijuana Program]
and, therefore, cannot defend their operation on that basis notwithstanding
their violations of the County Code.” The second cause of action sought
declaratory relief and alleged that defendants “established and are operating
[a medical marijuana dispensary] on the Subject Property in violation of the
Los Angeles County zoning code.”
County moved for a preliminary injunction, which defendants
opposed. After a hearing, the trial court granted the motion and enjoined
defendants and anyone acting on their behalf “from operating or permitting to
operate a medical marijuana dispensary and/or possessing, offering, selling,
giving away or otherwise dispensing marijuana on or from the subject property
at 20050 E. Arrow Highway, in the unincorporated community of Covina,
California, and from any other location within the unincorporated area of the
County of Los Angeles, pending trial of this action or further order of this
court.” The trial court's written ruling on the motion concluded that County's
ban on all medical marijuana dispensaries was consistent with, and thus not
preempted by, state law. The court characterized the provisions of the
Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, § 11362.5;
undesignated statutory references are to that code) and the Medical Marijuana
Program (MMP) (§ 11362.7 et seq.) as “limited criminal defenses from
prosecution for cultivation, possession, possession for sale, transportation
and certain other criminal sanctions involving marijuana for qualified
patients, persons with valid identification cards and designated primary
caregivers of the foregoing,” then noted that County's ban “is not a criminal
ordinance,” but “merely a zoning restriction and has no impact on the criminal
defenses provided by the CUA and MMP.” The court, quoting our prior decision in
Hill, supra, 192 Cal.App.4th at page 869, stated, “Moreover, the Court of
Appeal has specified that, ‘[t]he statute does not confer on qualified patients
and their caregivers the unfettered right to cultivate or dispense marijuana
anywhere they choose,’ instead finding that the County has ‘authority to
regulate the particular manner and location in which a business may operate’
under the Constitution.” But the court made no factual findings regarding
whether defendants had been operating a medical marijuana dispensary in
violation of state law.
Defendants appealed the order granting a preliminary
injunction and filed a petition for a writ of supersedeas staying the
enforcement of the preliminary injunction, which we granted.
DISCUSSION
Defendants contend that County's “TOTAL ban on medical
marijuana patient associations formed pursuant to Health and Safety Code
section 11362.775 is preempted by general principles of the preemption doctrine
[and] unlawful under Health and Safety Code section 11362.83 as a local
ordinance not ‘consistent’ with the Medical Marijuana Program Act.” (Italics
omitted.) County contends its ban is a permissible land use regulation that is
consistent with, and not preempted by, state medical marijuana laws. It further
contends that the preliminary injunction was properly issued because defendants
are operating in violation of state medical marijuana laws.
While the parties' preemption contentions require extensive
discussion, we can readily dispose of County's second argument. The trial court
made no factual findings that defendants were operating a medical marijuana
dispensary in violation of state law and it based its preliminary injunction
solely upon a theory that County's blanket ban on all “medical marijuana
dispensaries” was valid and not preempted by state law. Although County may
ultimately be able to establish in the trial court that the manner in which
defendants are operating their dispensary does not comply with state medical
marijuana laws, County's repeated allegations to that effect in its appellate
brief have no relevance to our determination of the validity of the preliminary
injunction, which was premised entirely on a conclusion that County's ban was
not preempted by state law.
1. Standard of review
An order granting a preliminary injunction is an appealable order.
(Code Civ. Proc., § 904.1, subd. (a)(6).) “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].) Although appellate review is generally
limited to whether the trial court's decision constituted an abuse of
discretion (ibid.), “[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].) Here, the question is solely a
legal one.
2. California's medical marijuana laws
California medical marijuana law is embodied in two
enactments, the CUA and the MMP. First, California voters approved Proposition
215 in 1996, codified as the Compassionate Use Act of 1996 at section 11362.5.
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.”
The electorate expressly stated its intent in enacting the
CUA: 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
[specified 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).) The electorate thus
“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].)
After a time, the Legislature responded by enacting the MMP,
which became effective January 1, 2004. The MMP added sections 11362.7 through
11362.83 (not including the later-enacted § 11362.768). The Legislature
expressly stated that its intent in enacting the MMP 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.)
In enacting the MMP, the Legislature expressly authorized
collective, cooperative cultivation projects as lawful means to obtain medical
marijuana under California law and immunized the activities of such projects
from both criminal sanctions and nuisance abatement actions. 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 [(possession of marijuana or ‘concentrated
cannabis’)], 11358 [(cultivation of marijuana)], 11359 [(possession of
marijuana for sale)], 11360 [(transporting, importing, selling, furnishing, or
giving away marijuana)], 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)].” Section 11570 states, “Every building
or place used for the purpose of unlawfully selling, serving, storing, keeping,
manufacturing, or giving away any controlled substance, precursor, or analog
specified in this division, and every building or place wherein or upon which
those acts take place, is a nuisance which shall be enjoined, abated, and
prevented, and for which damages may be recovered, whether it is a public or
private nuisance.”
The MMP also created a voluntary identification card system
for qualified medical marijuana patients. To further the Legislature's goals,
including promoting “uniform and consistent application of the act among the
counties within the state,” the MMP mandated that every county health
department or a county designee provide, receive, and process applications for
such identification cards, then issue such cards. (§§ 11362.71, subds. (b)–(c),
11362.72.)
3. Preemption analysis
Whether state law preempts a local ordinance is “a pure
question of law subject to de novo review.” (City of Watsonville v. State Dept.
of Health Services (2005) 133 Cal.App.4th 875, 882 [35 Cal. Rptr. 3d 216].)
“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.) “Local legislation in conflict
with the general laws is void.” (Cohen v. Board of Supervisors (1985) 40 Cal.3d
277, 290 [219 Cal. Rptr. 467, 707 P.2d 840] (Cohen).)
“The first step in a preemption analysis is to determine
whether the local regulation explicitly conflicts with any provision of state
law.” (Cohen, supra, 40 Cal.3d at p. 291.) “[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].) But “ ‘[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.) “Local
legislation is ‘duplicative’ of general law when it is coextensive therewith.”
(Ibid.) “Similarly, local legislation is ‘contradictory’ to general law when it
is inimical thereto.” (Id. at p. 898.) “Finally, local legislation enters an
area that is ‘fully occupied’ by general law when the Legislature has expressly
manifested its intent to ‘fully occupy’ the area [citation], or when it has
impliedly done so in light of one of the following indicia of intent: ‘(1) the
subject matter has been so fully and completely covered by general law as to
clearly indicate that it has become exclusively a matter of state concern; (2)
the subject matter has been partially covered by general law couched in such terms
as to indicate clearly that a paramount state concern will not tolerate further
or additional local action; or (3) the subject matter has been partially
covered by general law, and the subject is of such a nature that the adverse
effect of a local ordinance on the transient citizens of the state outweighs
the possible benefit to the’ locality … .” (Ibid.)
a. MMP authorizes marijuana cooperatives, collectives, and
dispensaries and shields them from nuisance abatement actions
By enacting the MMP, the Legislature expressly authorized
collective, cooperative cultivation projects as lawful means to obtain medical
marijuana under California law. (§ 11362.775.) It did so to “[e]nhance the
access of patients and caregivers to medical marijuana through collective,
cooperative cultivation projects.” (Stats. 2003, ch. 875, § 1(b)(3), p. 6422.)
The Legislature also expressly chose to place such projects beyond the reach of
nuisance abatement under section 11570, if predicated solely on the basis of
the project's medical marijuana activities.
Although the term “dispensary” was not initially used in the
MMP, the later-enacted section 11362.768 repeatedly refers to “medical
marijuana cooperative, collective, dispensary, operator, establishment, or
provider.” (§ 11362.768, subds. (b)–(g), italics added.) Subdivision (e) of
section 11362.768 expressly contemplates that a “medical marijuana cooperative,
collective, dispensary, operator, establishment, or provider” may have a
“storefront or mobile retail outlet”: “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.” (Italics added.) Further, an examination of
the activities immunized by section 11362.775 reveals that the Legislature
necessarily contemplated a dispensary function by collective or cooperative
cultivation projects by authorizing such projects to maintain a place for the
sale, use, and distribution of marijuana (§ 11366); use property to grow,
store, and distribute marijuana (§ 11366.5); and possess marijuana to
distribute (§ 11359). While, as discussed later in this opinion, section
11362.768 limits the proximity of the described medical marijuana projects to
schools and permits certain other local location limits, the repeated use of
the term “dispensary” throughout the statute and the reference in subdivision
(e) to a “storefront or mobile retail outlet” make it abundantly clear that the
medical marijuana cooperatives or collectives authorized by section 11362.775
are permitted by state law to perform a dispensary function.
County, the trial court, and some published decisions have
relied upon an unduly narrow view of California's medical marijuana laws as
providing only “limited criminal immunities under a narrow set of
circumstances.” (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1175
[100 Cal. Rptr. 3d 1] (Kruse).) Although section 11362.775 refers to “criminal
sanctions,” it also expressly affords immunity from nuisance abatement actions
under section 11570, which provides for exclusively civil remedies to curb the
use of property for illegal drug activity, such as injunctions, damages,
closing a building, and selling fixtures and personal property therein. (§§
11570, 11581; Lew v. Superior Court (1993) 20 Cal.App.4th 866, 872 [25 Cal.
Rptr. 2d 42].) To give effect to the Legislature's inclusion of section 11570
among the penal provisions that section 11362.775 renders inoperative for
collectively or cooperatively cultivating marijuana for medical purposes, we
must conclude section 11362.775 also bars the use of 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.
(McCarther v. Pacific Telesis Group (2010) 48 Cal.4th 104, 110 [105 Cal. Rptr.
3d 404, 225 P.3d 538] (McCarther).)
County also attempts to avoid preemption by relying upon
Civil Code sections 3479 and 3480 as bases for its nuisance abatement action.
Civil Code section 3479 provides, “Anything which is injurious to health,
including, but not limited to, the illegal sale of controlled substances, or is
indecent or offensive to the senses, or an obstruction to the free use of
property, so as to interfere with the comfortable enjoyment of life or
property, or unlawfully obstructs the free passage or use, in the customary
manner, of any navigable lake, or river, bay, stream, canal, or basin, or any
public park, square, street, or highway, is a nuisance.” Civil Code section
3480 states, “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.”
But Health and Safety Code 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 leads us to conclude
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] (6) [“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 Health and
Safety Code 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 such a
contradictory result by specifying that “[n]othing which is done or maintained
under the express authority of a statute can be deemed a nuisance.” The
statutory immunity provided by Civil Code section 3482 applies where the acts
complained of are authorized by the express terms of a 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.” ’ ” (Varjabedian v. City of Madera (1977)
20 Cal.3d 285, 291 [142 Cal. Rptr. 429, 572 P.2d 43].) “Courts must scrutinize
the statutes in question to ascertain whether a legislative intent exists to
sanction a nuisance.” (Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th
1245, 1258 [54 Cal. Rptr. 2d 340].) Because medical marijuana cooperative or
collective cultivation projects are authorized by the express terms of section
11362.775, Civil Code section 3482 applies, and their mere existence and
operation pursuant to state law cannot be deemed a nuisance under Civil Code
section 3479 or 3480.
As discussed, the Legislature in the MMP contemplated the
lawful operation of medical marijuana dispensaries in the circumstances
specified in section 11362.775, namely, using property collectively or
cooperatively to grow, store, and distribute medical marijuana, and expressly
immunized that activity from nuisance abatement. County's per se ban on medical
marijuana dispensaries prohibits what the Legislature authorized in section
11362.775. The contradiction is direct, patent, obvious, and palpable: County's
total, per se nuisance ban 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. Accordingly,
County's ban is preempted.
b. Section 11362.768 does not authorize County's ban
County also relies on section 11362.768, which was added to
the MMP in 2010 (eff. Jan. 1, 2011), as authority for local governments to ban
medical marijuana dispensaries. Section 11362.768, subdivision (b) provides,
“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.” Subdivision (e) limits the application of section 11362.768 “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.” County relies upon section
11362.768, subdivision (f), which states, “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,” and subdivision (g), which states, “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.”
We must give the words of the statute their usual and
ordinary meaning; accord significance, if possible, to every word, phrase and
sentence; and construe the words in context, bearing in mind the statutory
purpose, and attempting to harmonize statutes or statutory sections relating to
the same subject matter to the extent possible. (McCarther, supra, 48 Cal.4th
at p. 110.)
We disagree with County that in using the phrases “further
restrict the location or establishment” and “regulate the location or establishment”
in section 11362.768, subdivisions (f) and (g), the Legislature intended to
authorize local governments to ban all medical marijuana dispensaries that are
otherwise “authorized by law to possess, cultivate, or distribute medical
marijuana” (§ 11362.768, subd. (e) [stating scope of section's application]);
the Legislature did not use the words “ban” or “prohibit.” Yet County cites
dictionary definitions of “regulate” (to govern or direct according to rule or
law); “regulation” (controlling by rule or restriction; a rule or order that
has legal force); “restriction” (a limitation or qualification, including on
the use of property); “establishment” (the act of establishing or state or
condition of being established); “ban” (to prohibit); and “prohibit” (to forbid
by law; to prevent or hinder) to attempt to support its interpretation. County
then concludes that “the ordinary meaning of the terms, ‘restriction,’
‘regulate,’ and ‘regulation’ are consistent with a ban or prohibition against
the opening or starting up or continued operation of [a medical marijuana
dispensary] storefront business.” We disagree.
The ordinary meanings of “restrict” and “regulate” suggest a
degree of control or restriction falling short of “banning,” “prohibiting,”
“forbidding,” or “preventing.” Had the Legislature intended to include an
outright ban or prohibition among the local regulatory powers authorized in
section 11362.768, subdivisions (f) and (g), it would have said so. Attributing
the usual and ordinary meanings to the words used in section 11362.768,
subdivisions (f) and (g), construing the words in context, attempting to
harmonize subdivisions (f) and (g) with section 11362.775 and with the purpose
of California's medical marijuana statutory program, and bearing in mind the
intent of the electorate and the Legislature in enacting the CUA and the MMP,
we conclude that the phrases “further restrict the location or establishment”
and “regulate the location or establishment” in section 11362.768, subdivisions
(f) and (g) do not authorize a per se ban at the local level. 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. To interpret the phrases “further restrict the
location or establishment” and “regulate the location or establishment” to mean
that local governments may impose a blanket nuisance prohibition against
dispensaries would frustrate both the Legislature's intent to “[e]nhance the
access of patients and caregivers to medical marijuana through collective,
cooperative cultivation projects” and “[p]romote uniform and consistent
application of the [CUA] among the counties within the state” and the
electorate's intent to “ensure that seriously ill Californians have the right
to obtain and use marijuana for medical purposes” and “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.”
c. Section 11362.83 does not authorize County's ban
County also argues that section 11362.83, as amended in
2011, provides authority for local governments to ban medical marijuana
dispensaries. Section 11362.83 provides: “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.” (Before the
2011 amendment, the entire section stated, “Nothing in this article shall
prevent a city or other local governing body from adopting and enforcing laws
consistent with this article.”) County argues that subdivision (b) renders “the
definition of the word ‘consistent’ in subsection (c) of § 11362.83, obsolete …
.”
For the reasons discussed in the prior part, we conclude the
phrase “regulate the location, operation, or establishment” does not mean ban,
prohibit, forbid, or prevent all medical marijuana collectives and cooperatives
from operating within the entire jurisdiction “solely on the basis” that they
engage in medical marijuana activities authorized by section 11362.775.
County's argument that “consistent” in subdivision (c) of
section 11362.83 is “obsolete” ignores many of the rules of statutory
construction, both those previously set forth in this opinion and the
following: “It is assumed that the Legislature has in mind existing laws when
it passes a statute. [Citations.] ‘The failure of the Legislature to change the
law in a particular respect when the subject is generally before it and changes
in other respects are made is indicative of an intent to leave the law as it
stands in the aspects not amended.’ ” (Estate of McDill (1975) 14 Cal.3d 831,
837–838 [122 Cal. Rptr. 754, 537 P.2d 874].) Thus, we necessarily reject
County's attempt to eliminate “consistent” from subdivision (c), as that term
was included in the previous version of section 11362.83.
For reasons previously discussed, County's ban on all
medical marijuana collectives or cooperatives cannot be deemed “consistent with
this article,” that is, California's medical marijuana laws as enacted in the
CUA and the MMP.
d. Section 11362.5, subdivision (b)(2) does not authorize
County's ban
County also argues that section 11362.5, subdivision (b)(2)
provides authority for local governments to completely ban medical marijuana
dispensaries. That subdivision states, “Nothing in this section shall be
construed to supersede legislation prohibiting persons from engaging in conduct
that endangers others, nor to condone the diversion of marijuana for nonmedical
purposes.” (Ibid.) County's argument fails. In light of the provisions and
intent of the MMP, merely operating a medical marijuana collective or
cooperative authorized by section 11362.775 cannot be deemed to constitute
“engaging in conduct that endangers others” or “condon[ing] the diversion of
marijuana for nonmedical purposes.” The CUA and the MMP expressly pertain to
marijuana used for medical purposes. Section 11362.775 expressly pertains to
and authorizes the collective or cooperative cultivation of “marijuana for
medical purposes.” A ban on medical marijuana dispensaries cannot possibly be
deemed to be legislation prohibiting “the diversion of marijuana for nonmedical
purposes.” Thus, section 11362.5, subdivision (b)(2) is inapplicable to the
issues presented herein.
e. Viewing County's ban as a zoning law does not save it
from preemption
County also argues that its ban is merely a zoning
ordinance: a zoning ordinance is distinguishable from a drug abatement law and
thus does not fall within the scope of section 11362.775; the MMP does not
expressly prohibit local governments from enacting zoning regulations banning
medical marijuana dispensaries or from bringing a nuisance action enforcing
such ordinances; and the MMP does not “mandat[e] cities and counties to allow
and zone for [medical marijuana dispensaries].”
Preemption does not arise only from an express legislative
statement; a contradiction is sufficient. (Sherwin-Williams, supra, 4 Cal.4th
at p. 897.) Thus, the Legislature's failure to include in the MMP express
provisions (1) prohibiting local governments from enacting “zoning” provisions
banning all medical marijuana dispensaries or from bringing a nuisance action
enforcing such provisions or (2) mandating that local governments zone for
medical marijuana dispensaries does not negate preemption. County provides no
authority for the proposition that a local government may completely bar what
state law authorizes and shield that conflict with state law simply by labeling
it a “zoning” ordinance.
f. Earlier published decisions are distinguishable
Although, as far as we can determine, the California Supreme
Court has granted review of every appellate decision dealing with a complete
ban on medical marijuana dispensaries (see, e.g., City of Riverside v. Inland
Empire Patient's Health & Wellness Center, Inc. (2011) 200 Cal.App.4th 885
[133 Cal. Rptr. 3d 363], review granted Jan. 18, 2012, S198638; City of Lake
Forest v. Evergreen Holistic Collective (2012) 203 Cal.App.4th 1413 [138 Cal.
Rptr. 3d 332], review granted May 16, 2012, S201454), several prior published
appellate cases addressing limitations short of a complete ban remain in effect
at this time. We briefly distinguish these cases.
In Kruse, supra, 177 Cal.App.4th 1153, an individual applied
for a business license to operate a medical marijuana collective. The city
denied his application on the ground that his proposed business did not fall
within any of the city's permitted uses, but advised him he could apply for a
code amendment and could appeal the denial of his license application. Kruse appealed
the denial of the license, but did not seek a code amendment, and proceeded to
open his medical marijuana collective without the required business license.
(Id. at p. 1159.) Subsequently, the city enacted a temporary moratorium on
“approval or issuance of any permit, variance, license, or other entitlement
for the establishment of a medical marijuana dispensary in the City.” (Id. at
p. 1160.) Division Two of this district held, inter alia, that Kruse's
operation of a medical marijuana dispensary without obtaining the required
business license constituted a nuisance per se under the municipal code and
could properly be enjoined. (Id. at pp. 1164–1166.)
Kruse went on to hold that “[t]he MMP does not expressly
preempt the City's actions at issue here. The operative provisions of the MMP,
like those in the CUA, provide limited criminal immunities under a narrow set
of circumstances. The MMP provides criminal immunities against cultivation and
possession for sale charges to specific groups of people and only for specific
actions. (§ 11362.765; [People v.] Mentch [(2008) 45 Cal.4th 274,] 290–291 [85
Cal.Rptr.3d 480, 195 P.3d 1061].) It accords additional immunities to qualified
patients, holders of valid identification cards, and primary caregivers who
‘collectively or cooperatively cultivate marijuana for medical purposes.’ (§
11362.775.) [¶] Medical marijuana dispensaries are not mentioned in the text or
history of the MMP. The MMP does not address the licensing or location of
medical marijuana dispensaries, nor does it prohibit local governments from
regulating such dispensaries. Rather, like the CUA, the MMP expressly allows
local regulation. Section 11362.83 of the MMP states: ‘Nothing in this article
shall prevent a city or other local governing body from adopting and enforcing
laws consistent with this article.’ Nothing in the text or history of the MMP
precludes the City's adoption of a temporary moratorium on issuing permits and
licenses to medical marijuana dispensaries, or the City's enforcement of licensing
and zoning requirements applicable to such dispensaries.” (Kruse, supra, 177
Cal.App.4th at p. 1175.)
Thus, Kruse involved the violation of licensing and zoning
requirements applicable to all local businesses, not just medical marijuana
collectives or cooperatives, and a temporary moratorium on the issuance of
permits, variances, and licenses for operation of medical marijuana
dispensaries. It did not deal with a permanent and complete ban on such
dispensaries. And later the MMP was amended to expressly authorize a “medical
marijuana cooperative, collective, [or] dispensary,” including a “storefront …
outlet.” (§ 11362.768, subd. (e).)
City of Corona v. Naulls (2008) 166 Cal.App.4th 418 [83 Cal.
Rptr. 3d 1] also did not address the issue of preemption or involve a ban on
medical marijuana operations. Naulls did not disclose on his business license
application that he intended to open a medical marijuana collective. (Id. at p.
421.) When the city discovered his true purpose, it informed him that medical
marijuana dispensaries were not an enumerated permitted use under the city's
zoning laws, and a variance would be required. But in the interim, the city had
passed a moratorium on medical marijuana dispensaries. The trial court issued a
temporary injunction on the ground that Naulls's business was a nuisance per se
because it was nonpermitted and nonconforming. (Id. at pp. 421–422.) The
appellate court concluded that the preliminary injunction was supported by
substantial evidence and not an abuse of discretion.
Our own prior opinion involving the parties in the present
case, Hill, supra, 192 Cal.App.4th 861, addressed defendants' failure to obtain
the license, conditional use permit, and zoning variance required by the prior
version of LACC section 22.56.196, which County later supplanted by the
complete ban addressed herein. (192 Cal.App.4th at p. 865.) We held that the
operating requirements placed upon medical marijuana dispensaries were
consistent with the MMP (192 Cal.App.4th at p. 868) and noted that section
11362.775 “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.” (192 Cal.App.4th at p. 869.)
The present case is thus distinguishable from Kruse, Naulls,
and Hill. A complete ban, such as County's ordinance at issue herein, stands in
an entirely different relationship to California's medical marijuana law than a
temporary moratorium, general regulations applicable to all business
operations, and reasonable restrictions on the location of medical marijuana
collectives and cooperatives. We conclude state law preempts County's ban.
DISPOSITION
The order granting a 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 consistent with this
opinion. Defendants are entitled to their costs on appeal.
Chaney, J., and Johnson, J., concurred.
