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.
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
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.
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
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
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
A. Section 11570 and Civil Code Section 3479
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
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.)
B. Per Se Nuisances
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
C. California Law Provides for Dispensaries as a Matter of Statewide Concern
1. Procedural Posture, Evergreen's Contentions, and Civil Code Section 3482
2. Standard of Review
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."
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
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.)
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].)
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
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.)
5. State Medical Marijuana Law Only Authorizes Grow-site Dispensaries
Of critical importance, the Legislature immunized the activities specified in section 11362.775 ancillary to cultivation. In other words, the Legislature did
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).)
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,
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
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.
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.
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.
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
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
8. Section 11362.768 and Lawful Local Regulation of Dispensaries
As amended, 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.) The amendment 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.)
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.
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.
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
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
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.
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.
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.
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.
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)]."
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.
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.