Superior Court of California, County of Fresno

1 2 3 4 5 6 SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO 7 CENTRAL DIVISION 8 9 ) No. 09 CECG 02906 AMS ) Dept. 97 C 10 City of Fresno, ) ) 11 Plaintiff, ) ORDER GRANTING EX PARTE ) APPLICATIONS, ISSUING TRO AND 12 ) OSC RE: PRELIMINARY INJUNCTION vs. ) 13 ) CONSOLIDATED WITH Marejg Properties LLC, et al. ) 14 09 CECG 03058 Defendants. 09 CECG 03059 15 09 CECG 03060 09 CECG 03061 16 09 CECG 03096 09 CECG 03097 17 09 CECG 03098 09 CECG 03099 18 19 20 21 This matter involves 9 consolidated cases. The court heard 22 the lead case 09 CECG 02906 on 8/20/09 and continued it to 9/17/09

23 to permit Plaintiff to complete service on all named Defendants.

24 In the interim, on 9/2/09, the court heard ex parte applications 25 in 8 additional cases. On 9/2/09 the court ordered all 9 cases 26 consolidated on the ground that they involved common questions of 27 28 COUNTY OF FRESNO Fresno, CA law and fact. (CCP 1048 (a).) The court heard all 9 cases on 1 9/17/09 but some defendants had still not been served. So the 2 3 court continued the hearing to 10/8/09, to give Plaintiff 4 additional time to either serve or dismiss the remaining

5 defendants and provide the court with a complete and accurate

6 service list, and to give all parties time to file supplemental 7 briefs. 8 After reviewing all of the moving and opposing papers and 9 after considering oral argument on 10/8/09, the court GRANTS the 10 request of Plaintiff the City of Fresno to issue a TRO and set a 11 12 hearing date for an OSC re: preliminary injunction.

13 In the lead case, Defendants Richard W. Morse, Weston B. Fox

14 and Genesis 1:29 Inc. are operating a medical marijuana dispensary 15 called the Medmar Clinic (aka Synergistic Cannabinoids) at 210 E. 16 Olive Ave. Plaintiff the City of Fresno alleges that the Medmar 17 Clinic has sold marijuana to undercover police officers. The 18 officers had obtained a medical marijuana recommendation from Dr. 19 20 Terrill E. Brown, who operates a clinic at 215 E. Olive St. 21 The City of Fresno argues that the dispensary was opened in

22 violation of Fresno Municipal Code section 12-306-N-56, a local

23 zoning ordinance that regulates medical marijuana dispensaries and 24 collectives Section 12-306-N-56 provides, in relevant part, that 25 a “medical marijuana dispensary and/or medical marijuana 26 cooperative shall be allowed only in a zone district designated 27 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -2- for medical offices and only if consistent with state and federal 1 law.” 2 3 The City of Fresno argues correctly that a violation of local 4 land use regulations constitutes a nuisance per se. (City and

5 County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388.401.)

6 Fresno Municipal Code section 10-605 (j) expressly provides that a 7 violation of a zoning ordinance is a public nuisance. 8 There appear to be only two published California appellate 9 opinions that address the question of whether the court may issue 10 a preliminary injunction to enjoin operation of a medical 11 12 marijuana dispensary based on violation of a municipal zoning

13 ordinance. In City of Corona v. Naulls (2008) 166 Cal.App.4th

14 418, the City sued to enjoin operation of a medical marijuana 15 dispensary. Therein the Fourth District Court of Appeal affirmed 16 the trial court’s issuance of a preliminary injunction where the 17 municipal code did not permit the establishment of medical 18 marijuana dispensaries and where the owner filed an invalid 19 20 application for a business license by falsely stating he would be 21 selling miscellaneous medical supplies.

22 The Court of Appeal affirmed the trial court’s finding that

23 the non-permitted non-conforming use constituted a nuisance per se 24 under Civil Code section 3479. That statute was amended in 1996 25 to expressly address illegal use of controlled substances. 26 Section 3479, provides that: “Anything which is injurious to 27 health, including, but not limited to, THE ILLEGAL SALE OF 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -3- CONTROLLED SUBSTANCES . . . is a nuisance.” (Emphases added.) 1 This court notes that the plain language of the statute does not 2 3 distinguish between illegality under state law and illegality 4 under federal law. Accordingly, the sale of a controlled

5 substance, if it is illegal under federal law, may constitute a

6 nuisance under California state law and under the Fresno municipal 7 zoning ordinance. 8 In City of Claremont v. Kruse (2009) 2009 Cal. App. LEXIS 9 1563, on 9/15/06, the City denied a medical marijuana dispensary’s 10 application for a business license and permit because the proposed 11 12 use was not specifically addressed in the City’s Land Use and

13 Development Code. The Code expressly prohibited any use that was

14 not specifically enumerated therein. The dispensary began 15 operating without a permit or license on 9/15/06. On 9/21/06, the 16 City adopted an ordinance that imposed a 45-day moratorium on 17 issuance of any permit to operate a medical marijuana dispensary 18 anywhere in the City. The moratorium was intended, in part, to 19 20 provide more time for careful consideration and thorough study of 21 the legal complexities involved. The City extended the moratorium

22 for 10 months and 15 days on 10/24/06 and again for one year on

23 9/11/07. 24 The parties in City of Claremont stipulated that the 25 defendants had operated within the Compassionate Use Act (CUA) and 26 the Medical Marijuana Program Act (MMPA), a fact that has not been 27 established as to the defendants now appearing before this court. 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -4- Furthermore, the permit application signed by the dispensary owner 1 in City of Claremont contained a written acknowledgement that “The 2 3 proposed business shall also not conflict with any state or 4 federal laws.” This language is similar to the language of the

5 ordinance in this case. But the appellate decision in City of

6 Claremont apparently did not rely on this language. 7 The trial court in City of Claremont issued a TRO and OSC re: 8 preliminary injunction. Later the trial court issued a 9 preliminary injunction. And after a bench trial, the trial court 10 issued a permanent injunction, based on the moratorium. The 11 12 Second District Court of Appeal upheld the trial court’s finding

13 that Kruse’s operation of the medical marijuana dispensary,

14 without obtaining a business license and permit, could properly be 15 enjoined as a nuisance per se under the City of Claremont’s 16 municipal code. The Second District Court of Appeal also held that 17 the CUA and MMPA did not preempt the City’s actions, including the 18 City’s imposition of a lengthy moratorium on issuance of permits 19 20 for operation of medical marijuana dispensaries. 21 In the Supplemental Opposition of Defendants Kinsfather et

22 al., filed on 10/1/09, counsel argues at page 4 that this court

23 may not yet cite or rely on the Court of Appeal’s opinion in City 24 of Claremont v. Kruse, because the opinion does not become final 25 until 30 days after the publication order.1 This argument is 26 simply incorrect. 27 1Counsel cites to CRC 8.264 (b)(1) and (b)(5), but the latter cite appears to 28 be incorrect. Counsel may have meant to cite to subparagraphs (b)(1) and (b) COUNTY OF FRESNO (3). Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -5- The California Rule of Court cited by counsel DOES NOT 1 provide that a court of appeal decision may only be cited or 2 3 relied on after it has become final. On the contrary, the 4 finality of a court of appeal’s decision has to do with the

5 deadline for seeking review or filing an appeal, or the time

6 within which the decision may be modified by the court of appeal 7 or reviewed by the California Supreme Court. The finality of the 8 ruling has no bearing on its value as precedent. The very act of 9 publication signals the court of appeal’s decision that the 10 opinion has value as precedent and may be cited. Once published, 11 12 the opinion may be cited and relied upon unless and until it is

13 depublished or overruled.

14 California Rule of Court 8.1115 (d) expressly states that “A 15 published California opinion may be cited or relied on as soon as 16 it is certified for publication or ordered published.” And the 17 opinion in City of Claremont was certified for publication on 18 Sept. 22, 2009, so this court may clearly cite and rely on the 19 20 opinion as of Oct. 9, 2009. 21 It should be noted that City of Claremont v. Kruse differs

22 somewhat from the facts of this case. In this case there has been

23 no showing or stipulation that the dispensaries are qualified 24 collectives under the CUA or MMPA. Furthermore, the City of 25 Fresno has imposed no moratorium on the issuance of permits for 26 medical marijuana dispensaries. In City of Claremont the trial 27 court ruled that the dispensary’s operation could be enjoined as a 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -6- nuisance per se based on a violation of federal law -- the 1 Controlled Substances Act. But the Court of Appeal declined to 2 3 review that question because it held that the lengthy but 4 temporary moratorium was valid and was not preempted by state law.

5 So the Court of Appeal held that, so long as the moratorium was in

6 place, the municipal ordinance provided sufficient basis for 7 maintaining the permanent injunction. (City of Claremont, 2009 8 Cal.App. LEXIS 1563 at pp. 6-7 fn. 3.) 9 Both the City of Corona and City of Claremont cases differ 10 from this case in that those Cities’ municipal zoning ordinances 11 12 did not recognize a medical marijuana dispensary as a permitted

13 use. In addition, the City of Claremont later enacted an outright

14 moratorium on the issuance of business permits to medical 15 marijuana dispensaries. By way of contrast, the City of Fresno’s 16 ordinance purports to permit the operation of medical marijuana 17 dispensaries, but only in areas zoned for medical offices and only 18 to the extent consistent with state and federal law. So while the 19 20 ordinances differ in their technical and legal operation, there is 21 no practical difference in terms of their effect. Effectively,

22 in Fresno, the violation of federal law renders the operation of

23 commercial-storefront medical marijuana dispensaries a non- 24 permitted use. Arguably, however, individuals are still free to 25 associate with one another to form qualified collectives under the 26 CUA and MMPA, so long as they do not operate commercial-storefront 27 distribution centers. 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -7- The case of People v. Hochanadel (Aug. 18, 2009) 2009 Cal. 1 App. LEXIS 1359, cited by Defendant Morris, is distinguishable 2 3 from this case because Hochanadel was a criminal case, not a 4 zoning case. (Defendant Morris’s 8/20/09 Response at p. 3, lines

5 8-10.) In Hochanadel, the Fourth District Court of Appeal held

6 that the Medical Marijuana Program Act (MMPA) was not an 7 unconstitutional amendment of the Compassionate Use Act (CUA), but 8 was a distinct statutory scheme intended to facilitate the 9 transfer of medical marijuana to qualified patients. The Court of 10 Appeal held that storefront dispensaries that qualify as 11 12 “collectives” or “cooperatives” under the CUA and MMPA may be able

13 to operate legally under state law and may be able to raise a

14 defense at trial to state law criminal charges. (Health & Safety 15 Code 11362.775.2) 16 The Court of Appeal did not hold that the CUA and the MMPA 17 provide qualified collectives and cooperatives with a defense 18 against federal criminal charges. Nor did the Court of Appeal 19 20 hold that the CUA and MMPA provide collectives and cooperatives 21 with immunity from the restrictions of municipal zoning

22 ordinances. 23 2 “Health & Safety Code Section 11362.775 provides: “Qualified patients, persons 24 with valid identification cards, and the designated caregivers of qualified patients and persons with identification cards, who associate within the State 25 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 26 state criminal sanctions under Section 11357 [possession], 11358 [cultivation], 11359 [possession for sale], 11360 [transportation], 11366 [maintaining a place 27 for the sale, giving away or use of marijuana], 11366.5 [making available premises for manufacture, storage or distribution of controlled substances], or 28 11570 [abatement of nuisance created by premises used for manufacture, storage COUNTY OF FRESNO or distribution of controlled substance].” Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -8- At the hearing on 9/2/09, counsel for Defendants Earthsource 1 and Kinsfather argued that the dispensaries and owners may not be 2 3 the subject of an action to abate a public nuisance under Health 4 and Safety Code section 11570, due to the protection afforded by

5 Health and Safety Code section 11362.775. But section 11362.775

6 does not apply here. The plain language of that section expressly 7 prohibits imposition of state CRIMINAL sanctions. Section 11570 8 is a criminal forfeiture and abatement statute under Division 10 9 of the Health and Safety Code, which prescribes criminal penalties 10 for possession of controlled substances and which also provides 11 12 various remedies in criminal actions related to controlled

13 substances. That criminal statute permits a prosecuting attorney

14 in a criminal action to abate a public nuisance or even to seize 15 property in a criminal forfeiture action. 16 But this case is not a criminal action to abate a public 17 nuisance under Penal Code section 370 and Health and Safety Code 18 section 11570. On the contrary, this case is a civil action to 19 20 abate a public nuisance under Civil Code section 3479 and a Fresno 21 municipal zoning ordinance. This is a zoning case, not a criminal

22 case. Hence, this action is not subject to the legal defense

23 against criminal sanctions established by Health and Safety Code 24 section 11362.775. This is not a criminal action brought on 25 behalf of the People of the State of California by the District 26 Attorney for the County of Fresno or by the Attorney General for 27 the State of California. Rather, this is a civil action brought 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -9- by the City Attorney for the City of Fresno. The case, apparently, 1 has been incorrectly styled as having been brought by the People 2 3 of the State of California, implying it is a criminal action, 4 which it is not.

5 Similarly, the cases of People v. Kelly (2008) 163 Cal.App.4th

6 124 [possession of marijuana] and People v. Phomphakdy (2008) 165 7 Cal.App.4th 857 [cultivating marijuana and possession for sale], 8 mentioned by the parties at oral argument on 8/27/09 and 9/2/09, 9 are not relevant here because they involve state-law criminal 10 charges, not civil abatement proceedings. In any event, these 11 12 cases are currently being reviewed by the California Supreme

13 Court, so they cannot be cited or relied upon as precedent.

14 County of Butte v. Superior Court (2009) 175 Cal.App.4th 729, 15 mentioned by Defendant McPike at the hearing on 9/2/09, does not 16 apply here because it did not involve enforcement of a zoning 17 ordinance. Therein, a County sheriff’s deputy went to plaintiff’s 18 home without a warrant, and despite being shown copies of medical 19 20 marijuana recommendations, forced plaintiff to destroy all but 12 21 of his 41 marijuana plants under threat of state-law criminal

22 prosecution. The plaintiff, who alleged that he was a qualified

23 medical marijuana patient, brought a civil suit in state court 24 seeking damages for, among other claims, conversion and violation 25 of civil rights. The County demurred to the complaint on the 26 ground that state law only created a limited defense to criminal 27 prosecution, but did not create an affirmative right to seek civil 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -10- damages. The trial court overruled the County’s demurrer and the 1 Third District Court of Appeal upheld the trial court’s ruling. 2 3 Therefore, County of Butte stands for the limited proposition 4 that a plaintiff may sue law enforcement for civil damages arising

5 from improper search and seizure of marijuana that is legally

6 possessed, under state law, by a qualified medical marijuana 7 patient. But the case before this court does not involve a 8 lawsuit by the dispensaries or by their owners seeking damages 9 from the City of Fresno for an improper police search and seizure. 10 There is no allegation by the dispensaries or by their owners that 11 12 City of Fresno police have conducted any improper search of the

13 dispensaries or that the City of Fresno police have seized any

14 private property in the form of medical marijuana. 15 Finally, City of Garden Grove v. Superior Court (2007) 157 16 Cal.App.4th 355 does not apply here. Therein, City police seized 17 marijuana during a traffic stop. The Third District Court of 18 Appeal held that the medical marijuana patient was legally in 19 20 possession of the medical marijuana, so that after dismissal of 21 the criminal charges, due process required the return of the

22 improperly seized medical marijuana. Although the possession was

23 illegal under federal law, the Court of Appeal held that state 24 courts are not required to enforce federal drug laws and that the 25 federal drug laws did not preempt state law under the supremacy 26 clause. But the question of federal preemption was limited to the 27 very narrow issue of whether medical marijuana seized by law 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -11- enforcement under state law could be returned to a patient who was 1 a qualified user of medical marijuana under state law. Once again, 2 3 there is no evidence in this case that the City of Fresno has 4 illegally seized the Defendants’ medical marijuana or refuses to

5 return Defendants’ medical marijuana. 6 7 A. Lack of a Site Plan 8 9 10 First, the City of Fresno argues that the MedMar Clinic 11 dispensary was opened without a required site plan. (See Exhibits 12 D and E to Memo in Support.) Of the legal theories raised by the 13 City, this argument is perhaps most consistent with the zoning 14 violations proven up by the plaintiffs in City of Corona and City 15 of Claremont. 16 But in this case the City of Fresno provides no sworn 17 declarations to firmly evidence the lack of a site plan. The 18 Konczal Declaration only mentions the undercover marijuana buys 19 conducted by City of Fresno police. In the City of Fresno’s 20 memorandum in support, the Deputy City Attorney asserts that there 21 is a zoning violation and attaches unauthenticated letters wherein 22 the City Attorney merely asserts that Defendants lack a site plan. 23 But it is not clear whether the declaration of the Deputy City 24 Attorney is based on personal knowledge. The City of Fresno has 25 submitted no declarations from zoning officials based on personal 26 knowledge. 27 It is well established that counsel’s allegations and 28 arguments, set forth in the moving papers, do not constitute COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -12- 1 admissible evidence. (Smith, Smith & Kring v. Superior Court 2 (1997) 60 Cal.App.4th 573, 578 [“The matters set forth in the 3 unverified ‘Statement of Facts’ and in memoranda of points and 4 authorities are not evidence and cannot provide the basis for the 5 granting of the motion.”]; Saldana v. Globe-Weis Systems Co. 6 (1991) 233 Cal.App.3d 1505, 1518 [“As evidence of that contention, 7 we are cited to Saldana's own argument at the hearing on motion 8 for summary judgment . . . It hardly bears mentioning that 9 argument of counsel is neither a declaration nor admissible as 10 evidence in court.”) Accordingly, the request for relief on this ground is DENIED 11 WITHOUT PREJUDICE. 12 13 14 B. Federal Law 15

16 Second, the City argues correctly that federal law (the 17 Controlled Substances Act, 21 USC 801 et seq.) clearly prohibits 18 the sale and distribution of marijuana and the possession of 19 marijuana for sale and distribution. (United States v. Oakland 20 Cannabis Buyers’ Cooperative (2001) 532 U.S. 483; Gonzales v. 21 22 Raich (2005) 545 U.S. 1.) Therefore the operation of the Fresno

23 dispensaries violates federal law. And this violation of federal

24 law constitutes a violation of the local zoning ordinance, which 25 only permits operation of medical marijuana dispensaries or 26 collectives consistent with federal law. In their Opposition, 27 Defendants have not successfully challenged the validity or 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -13- constitutionality of the Fresno zoning ordinance itself. (See 1 discussion in subsection E of this memo.) Accordingly, the trial 2 3 court is compelled by law to follow the appellate precedent 4 established in City of Corona v. Naulls and in City of Claremont

5 v. Kruse. This court finds that the marijuana dispensaries are

6 being operated in violation of Fresno Municipal Code section 12- 7 306-N-56 and in violation of Civil Code section 3479. 8 Appellate court rulings on questions of law, if they are on 9 point, are binding on the trial courts. (9 Witkin, California 10 Procedure (5th ed. 2008) Appeal, section 497, citing Auto Equity 11 12 Sales v. Superior Court (1962) 57 Cal.2d 450, 455 {“Under the

13 doctrine of stare decisis, all tribunals exercising inferior

14 jurisdiction are required to follow decisions of courts exercising 15 superior jurisdiction. Otherwise, the doctrine of stare decisis 16 makes no sense. The decisions of [the California Supreme Court] 17 are binding upon and must be followed by all the state courts of 18 California. Decisions of every division of the District Courts of 19 20 Appeal are binding upon . . . all the superior courts of this 21 state . . . Courts exercising inferior jurisdiction must accept

22 the law declared by courts of superior jurisdiction. It is not

23 their function to attempt to overrule decisions of a higher 24 court.”]; People v. Superior Court (1996) 50 Cal.App.4th 1202, 25 1211.) 26 Accordingly, the request for relief on this ground must be 27 GRANTED. 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -14- 1 C. Does Federal Law Preempt Conflicting State Law? 2 3 4 Third, the City of Fresno argues that the federal Controlled

5 Substances Act preempts state laws decriminalizing the limited

6 personal use of medical marijuana. But this question is moot. 7 The court need not decide this question because the violation of 8 federal law is clear and also constitutes a zoning violation under 9 the municipal code and under Civil Code section 3479. The court 10 is not aware of any state or federal appellate case holding that 11 12 federal law preempts the CUA or the MMPA. The parties have cited

13 no cases which find federal preemption and the court’s own

14 research has uncovered no such cases. 15 16 D. Does State Law Preempt the Local Zoning Ordinance? 17 18 Fourth, the City of Fresno argues correctly that state law 19 20 does not appear to preempt the Fresno zoning ordinances. (See 21 generally City of Claremont v. Kruse at pp. 8-13.) Whether state

22 law preempts a local ordinance is a question of law. (Roble Vista

23 Associates v. Bacon (2002) 97 Cal.App.4th 335, 339.) “The party 24 claiming that general state law preempts a local ordinance has the 25 burden of demonstrating preemption." (Big Creek Lumber Co. v. 26 County of Santa Cruz (2006) 38 Cal.4th 1139, 1149.) 27 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -15- The general principles governing state statutory preemption 1 of local land use regulation are well settled. (Big Creek Lumber, 2 3 supra, 38 Cal.4th at p. 1150.) Under article XI, section 7 of the 4 California Constitution, a “county or city may make and enforce

5 within its limits all local, police, sanitary, and other

6 ordinances and regulations not in conflict with general laws." 7 "'If otherwise valid local legislation conflicts with state law, 8 it is preempted by such law and is void.’" (Sherwin-Williams Co. 9 v. City of Los Angeles (1993) 4 Cal.4th 893, 897, quoting Candid 10 Enterprises Inc. v. Grossmont Union High School Dist. (1985) 39 11 12 Cal.3d 878, 885.) There are three types of conflict that give

13 rise to preemption: A conflict exists if the local legislation

14 "duplicates, contradicts, or enters an area fully occupied by 15 general law, either expressly or by legislative implication." 16 (Action Apartment Assn. Inc. v. City of Santa Monica (2007) 41 17 Cal.4th 1232, 1242.) 18 It is well settled that local regulation is invalid if it 19 20 attempts to impose additional requirements in a field that is 21 fully occupied by statute. Local legislation enters an area that

22 is "fully occupied" by general law when the Legislature has

23 expressly manifested its intent to "fully occupy" the area, or 24 when it has impliedly done so in light of one of the following 25 indicia of intent: (1) the subject matter has been so fully and 26 completely covered by general law as to clearly indicate that it 27 has become exclusively a matter of state concern; (2) the subject 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -16- matter has been partially covered by general law couched in such 1 terms as to indicate clearly that a paramount state concern will 2 3 not tolerate further or additional local action; or (3) the 4 subject matter has been partially covered by general law, and the

5 subject is of such a nature that the adverse effect of a local

6 ordinance on the transient citizens of the state outweighs the 7 possible benefit to the" locality. (American Financial Services 8 Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1252.) 9 Absent a clear indication of legislative intent to preempt 10 local zoning, this court must presume that state law DOES NOT 11 12 preempt the City of Fresno’s zoning ordinance. "[W]hen local

13 government regulates in an area over which it traditionally

14 exercised control, such as the location of particular land uses, 15 California courts will presume, absent a clear indication of 16 preemptive intent from the Legislature, that such regulation is 17 not preempted by state statute." (Big Creek Lumber, supra, 38 18 Cal.4th at p. 1149.) 19 20 Defendants have failed to cite any language from the state or 21 the federal Constitutions that would establish a CONSTITUTIONAL

22 right to maintain commercial-storefront dispensaries for sale or

23 distribution of medical marijuana. Nor have Defendants carried 24 their burden to present evidence, to cite statutory language, or 25 to cite legislative history to prove that the CUA or MMPA created 26 a STATUTORY right to obtain marijuana through commercial- 27 storefront dispensaries. Even assuming that the CUA or MMPA 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -17- gives individual California citizens a statutory right to form 1 qualified medical marijuana collectives or cooperatives, 2 3 Defendants have made no showing that those qualified collectives 4 or cooperatives have a statutory right to operate a commercial

5 storefront for sale or distribution of medical marijuana.

6 In People v. Mower (2002) 28 Cal.4th 457, the California 7 Supreme Court found that the CUA creates a limited defense, under 8 state law, from prosecution for cultivation and possession of 9 marijuana. Defendants have made no showing that the CUA or the 10 MMPA expressly or implicitly preempts the City’s zoning ordinances 11 12 with respect to the establishment of medical marijuana

13 dispensaries, collectives, or cooperatives. There is no showing

14 that the CUA, either in its operative provisions or legislative 15 history, addresses zoning regulation or business licensing of 16 medical marijuana dispensaries, cooperatives, or collectives. 17 Similarly, there is no showing that the MMPA mentions commercial 18 medical marijuana dispensaries in its text or history. Although 19 20 the MMPA does mention collective or cooperative cultivation of 21 marijuana for medical purposes, it provides no express or implied

22 guarantee that qualified medical marijuana patients have a

23 statutory right to distribution and sale of medical marijuana 24 through commercial storefronts. 25 Based on the evidence currently presented, this court finds 26 that the City of Fresno’s zoning ordinance does not conflict with 27 state law. The Fresno ordinance does not duplicate, contradict, 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -18- or enter an area fully occupied by state law, either expressly or 1 by legislative implication. This court notes that enforcing the 2 3 Fresno zoning ordinance does not prevent qualified medical 4 marijuana patients, as individuals, from exercising their rights

5 under the CUA and MMPA to grow, use, or possess medical marijuana.

6 Furthermore, enforcement of the Fresno zoning ordinance does not 7 prevent individuals from associating to form qualified collectives 8 or cooperatives under state law. Nor does the zoning ordinance 9 does not necessarily prevent individuals from operating qualified 10 medical marijuana collectives and cooperatives, or from 11 12 cultivating marijuana, or from performing other activities

13 associated with qualified medical marijuana collectives or

14 cooperatives. Effectively, the zoning ordinance merely prohibits 15 the sale or distribution of medical marijuana from commercial- 16 storefront dispensaries, without circumscribing the limited 17 personal use and collective cultivation of medical marijuana 18 intended by the CUA and MMPA. Thus, the zoning ordinance does not 19 20 conflict with state law. 21 The opinion of the California Attorney General, 88 Ops. Cal.

22 Atty. Gen. 113 (2005), cited by Defendant Morris, does not apply

23 to the facts of this case. This case concerns whether a medical 24 marijuana dispensary has complied with a local zoning ordinance, 25 not whether it has complied with city, county, or state 26 registration and identification requirements. The California 27 Attorney General’s opinion addresses only one specific area of 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -19- regulation under the MMPA –the establishment of a registry and 1 identification-card program. The opinion was limited to three 2 3 narrow questions – whether the statewide program preempted a city 4 program, whether a city could implement its own program until the

5 statewide program took effect, and whether a county could

6 designate a city to perform certain functions of the county health 7 department under the statewide program. The California Attorney 8 General opined that the Legislature DID NOT intend to fully occupy 9 all areas of law concerning the use of medical marijuana, but did 10 intend to fully occupy the narrow, specific field of registration 11 12 and identification cards.

13 In their Opposition, at page 17, Defendants Kinsfather,

14 Erickson, and Earthsource argue that under Article III, section 15 3.5, subdivision (c) of the California Constitution, an 16 administrative agency has no power to refuse to enforce a statute 17 on the basis that a federal law prohibits enforcement of the 18 statute, unless an appellate court has made the determination that 19 20 the enforcement of the statute is prohibited by federal law. 21 However, this presumes that the City of Fresno, by enforcing its

22 zoning ordinance, is refusing to enforce the MMPA or the CUA.

23 Furthermore, Defendants fail to cite specific language from the 24 MMPA or the CUA that limits or restricts the application of zoning 25 ordinances to the operation of medical marijuana dispensaries, 26 collectives, or cooperatives. The court finds that enforcement of 27 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -20- the zoning ordinance against Defendant dispensaries and their 1 owners does not conflict with state law. 2 3 Accordingly, the court finds that state law does not preempt 4 enforcement of the City of Fresno’s zoning ordinance. 5

6 E. Dispensaries vs. Collectives and Cooperatives 7 8 Fifth, the City of Fresno argued for the first time, at the 9 hearing on 9/27/09, that commercial medical marijuana dispensaries 10 are not permitted to operate unless they qualify as collectives or 11 12 cooperatives under the MMPA and the CUA. As a matter of due

13 process, the court may not address a legal argument that was not

14 properly noticed and raised in the moving papers. Furthermore, 15 even if the City of Fresno had timely raised this legal argument, 16 the City of Fresno has not cited any statutory or case law 17 explaining how such qualified collectives and cooperatives are 18 legally defined. Nor has the City submitted any evidence to show 19 20 conclusively whether Defendants have complied or failed to comply 21 with the laws regarding sale of marijuana by qualified collectives

22 and cooperatives.

23 By the same token, Defendants have failed to establish that 24 they are qualified collectives or cooperatives within the meaning 25 of Health and Safety Code section 11362.775. Therefore Defendants 26 have not shown that they are subject to the protections of the 27 MMPA or the CUA. Furthermore, Defendants have failed to show 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -21- that they meet the non-profit requirement of Health and Safety 1 Code section 11362.765 (a)3. Defendants merely assert they are 2 3 operating qualified nonprofit cooperatives and collectives, but 4 fail to present any evidence to support this assertion.

5 In any event, where, as here, the City of Fresno has made a

6 prima facie showing that the Defendant dispensaries and their 7 owners are operating a nuisance per se in violation of a facially 8 valid zoning ordinance, it appears that the burden of proof shifts 9 to Defendants to show that they are operating qualified 10 collectives or cooperatives within the meaning of the CUA, the 11 12 MMPA, and/or the August 2008 guidelines of the California Attorney

13 General. Defendants have done little more than assert in

14 conclusory fashion that they are operating qualified medical 15 marijuana collectives or cooperatives. Defendants have failed to 16 present any competent or admissible evidence to support their 17 assertions. It is not the City of Fresno’s burden to show that 18 Defendants are NOT qualified collectives or cooperatives under 19 20 state law. Rather, once the City of Fresno has made a prima facie 21 showing that a zoning violation exists, the burden shifts to the

22 Defendants to show that state law preempts the zoning ordinance

23 or that the zoning ordinance is somehow unconstitutional or 24 invalid as applied to the dispensaries and their owners. 25 26 3 Health & Safety Code section 11362.765 (a) provides, in relevant part: “nor 27 shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit.” 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -22- In their Opposition, at page 3, the McPike Defendants4 assert 1 that the City of Fresno’s ordinance is unconstitutional and 2 3 overbroad because it effectively bans the operation of medical 4 marijuana dispensaries anywhere in the City of Fresno. But the

5 McPike Defendants fail to identify what constitutional rights the

6 City of Fresno is allegedly violating. Neither the United States 7 Constitution nor the California Constitution guarantees citizens 8 the right to purchase medical marijuana from commercial 9 storefronts. It is immaterial whether those storefronts are 10 dispensaries, collectives or cooperatives, or whether those 11 12 storefronts are operated by qualified collectives or cooperatives.

13 Under state law, the CUA and MMPA appear to create a

14 statutory right for individuals to associate to form qualified 15 cooperatives, but the CUA and MMPA do not appear to establish any 16 statutory right for qualified cooperatives or their members to run 17 commercial storefront dispensaries. As a matter of public policy, 18 it appears to be well within the police powers of the Fresno City 19 20 Council to make the finding, whether express or implied, that the 21 operation of a storefront medical marijuana dispensary presents a

22 substantial risk of generating improper commercial sales to

23 customers who are not members of qualified cooperatives. And the 24 City Council may therefore limit or ban the operation of such 25 26

27 4 Defendants California Herbal Relief Center, Sean Dwyer, California Naturopathic Agricultural Association Inc., William R. McPike, Fresno 28 Compassion, George Byadijian, Nu-Life Association Inc., and Mitchell Danekas COUNTY OF FRESNO (hereinafter “McPike Defendants”) Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -23- commercial storefronts. (Cf. City of Corona and City of 1 Claremont.) 2 3 The McPike Defendants also fail to show whether the ordinance 4 is subject to strict scrutiny, intermediate scrutiny, or rational

5 basis scrutiny. “It is well settled that zoning ordinances, when

6 reasonable in object and not arbitrary in operation, constitute a 7 justifiable exercise of police power, and that the establishment, 8 as part of a comprehensive and systematic plan, of districts 9 devoted to strictly private residences or single family dwellings, 10 from which are excluded businesses or multiple dwelling 11 12 structures, is a legitimate exercise of the police power.”

13 (Wilkins v. San Bernardino (1946) 29 Cal.2d 332, 337.) Thus, if

14 “the validity of the legislative classification for zoning 15 purposes be fairly debatable, the legislative judgment must be 16 allowed to control.” (Euclid v. Ambler Realty Co. (1926) 272 U.S. 17 365.) 18 The courts will, of course, inquire as to whether the scheme 19 “ 20 of classification and districting is arbitrary or unreasonable, 21 but the decision of the zoning authorities as to matters of

22 opinion and policy will not be set aside or disregarded by the 23 courts unless the regulations have no reasonable relation to the 24 public welfare or unless the physical facts show that there has 25 been an unreasonable, oppressive, or unwarranted interference with 26 property rights in the exercise of the police power.” (Lockard v. 27 28 Los Angeles (1949) 33 Cal.2d 453, 461.) COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -24- The Fresno zoning ordinance appears to bear a reasonable 1 relationship to the general welfare and a proper exercise of the 2 3 City of Fresno’s police powers under California Constitution, 4 article XI, section 7. Pursuant to well-established legal

5 precedents, California cities are afforded broad discretion under

6 the California Constitution to make urban planning decisions that 7 shape the landscape of commercial retail offerings available to 8 consumers. (Wal-Mart Stores Inc. v. City of Turlock (2006) 138 9 Cal.App.4th 273 [ordinance prohibiting development of big box 10 retail stores with full-service grocery departments was rationally 11 12 related to legitimate goal of organizing development through

13 neighborhood shopping centers dispersed throughout city],

14 Hernandez v. City of Hanford (2007) 41 Cal.4th 279 [California 15 Supreme Court reversed Fifth District Court of Appeal ruling and 16 held that ordinance’s differential treatment of large department 17 stores and other retail stores was rationally related to one of 18 the legitimate legislative purposes of the ordinance, which was to 19 20 attract and retain large department stores within the planned 21 commercial district].) There has been no showing here that the

22 ordinance infringes on a constitutionally-protected right. (Cf.

23 Sebago Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372.) 24 Even assuming, for the sake of argument, that California law 25 does establish a statutory right to operate medical marijuana 26 collectives or cooperatives, Defendants have nevertheless failed 27 to offer any proof that they are in fact operating QUALIFIED 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -25- collectives or cooperatives under state law. Absent such proof, 1 Defendants cannot argue that they are somehow “exempt” from 2 3 compliance with the Fresno zoning ordinance. 4 Accordingly, the City of Fresno’s request for relief on this

5 ground is DENIED WITHOUT PREJUDICE. And the Defendants’ legal

6 challenge to the zoning ordinance on this ground is DENIED WITHOUT 7 PREJUDICE. 8 9 F. Liability of Defendant Landlords 10 11 12 Defendant Landlord Marejg Properties LLC argues correctly

13 that the City of Fresno has failed to make a prima facie factual

14 showing that the Landlord has somehow participated in the zoning 15 violation. Similarly, in the consolidated cases, there appears to 16 be no evidence before the court demonstrating that the Landlords 17 knew or should have known of the zoning violations, or that the 18 City of Fresno notified the Landlords of the zoning violations and 19 20 formally requested that the Landlords take some kind action. 21 Furthermore, the City of Fresno has failed to cite any statutory

22 authority or case law demonstrating that the Landlords bear any 23 legal responsibility to discover or halt the zoning violations, or 24 that by permitting operation of the dispensaries the Landlords 25 committed per se violations of the zoning ordinance. In its moving 26 papers, the City of Fresno has made no evidentiary or legal 27 28 showing that the Landlords have any statutory or legal duty to act COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -26- in this situation. At oral argument on 9/2/09, the City of Fresno 1 alluded to certain unspecified ordinances that hold the Landlords 2 3 responsible, but the moving papers do not appear to address the 4 question of the Landlords’ liability.

5 Accordingly, the City of Fresno’s request for relief as

6 against Defendant Landlords is DENIED WITHOUT PREJUDICE. 7 8 CONCLUSION 9 10 The court finds that the City of Fresno has carried its 11 12 burden to show a reasonable probability that the City will prevail

13 on the merits, that there is a risk of irreparable harm to the

14 City, and that the harm the City will likely suffer if relief is 15 denied exceeds the harm Defendants will likely suffer if relief is 16 granted. 17 Therefore, the court issues this Temporary Restraining Order 18 enjoining the Defendant dispensaries and owners listed below, and 19 20 their agents or employees, from selling or distributing marijuana 21 from the dispensaries named below and at the addresses listed

22 below, pending hearing on the Order to Show Cause re: Preliminary

23 Injunction. The Defendants listed below are ordered to appear 24 before this court on Thursday, Oct. 22, 2009 at 3:30 p.m. in 25 Department 97C and show cause why the court should not issue a 26 preliminary injunction barring all sales and distribution of 27 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -27- marijuana from the dispensaries pending trial of this matter on 1 the merits. The TRO and OSC do not apply to Defendant Landlords. 2 3 Consistent with the laws governing provisional remedies in 4 the State of California, the issuance of this TRO and OSC does not

5 determine the merits of the underlying controversies. Rather,

6 until the time of trial, the issuance of these orders merely 7 maintains the status quo that existed before the various 8 dispensaries started selling and/or distributing marijuana in 9 violation of the City of Fresno’s zoning ordinance. 10 The following named Defendants are subject to the TRO and 11 12 OSC: 13 1. City of Fresno v. Marejg Properties LLC, et al. 14 09 CECG 02906 15 Genesis 1:29 Inc. (dispensary) dba Medmar Clinic, dba Synergistic Cannabinoids 16 210 E. Olive, Fresno, CA 93728 Richard W. Morse (owner) 17 Weston B. Fox (owner) 18 2. City of Fresno v. California Herbal Relief Center, et al. 19 09 CECG 03058 20 California Herbal Relief Center (dispensary) 609 B East Olive, Fresno CA 93728 21 Sean K. Dwyer (owner) 22 23 3. City of Fresno v. Compassionate Outreach, et al. 24 09 CECG 03059

25 Compassionate Outreach Compassionate Outreach II 26 6368 Fig Garden Drive, Fresno CA 93722 27 Mark Frankel (owner)

28 4. City of Fresno v. Sierra Natural Healing Collective, et al. COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -28- 09 CECG 03060 1 2 Sierra Natural Healing Collective (dispensary) 5030 West Shaw Avenue, Fresno CA 93722 3 Jessica Styre (owner) Michael Parks (owner) 4 5. City of Fresno v. California Naturopathic Agricultural Association 5 09 CECG 03061 6 California Naturopathic Agricultural Association (dispensary) 7 1021 N. Abby, Fresno CA 93701 William R. McPike (owner) 8 6. City of Fresno v. Earthsource, et al. 9 09 CECG 03096 10 Earthsource (dispensary) 11 2815 North Blackstone Avenue, Fresno CA 93703 John Kinsfather (owner) 12 Charles Erickson (owner) 13 7. City of Fresno v. Fresno Compassion Association, et al. 14 09 CECG 03097

15 Fresno Compassion Association (dispensary) 2506 North Fruit Avenue, Fresno CA 93705 16 George Boyadjian (owner) 17 8. City of Fresno v. Central Valley Collective, et al. 18 09 CECG 03098

19 Central Valley Collective (dispensary) 6463 North Blackstone Avenue, Fresno CA 93710 20 Linda Nebeker (owner) 21 Dennis Nebeker (owner) 22 23 9. City of Fresno v. Nu-Life Association, et al. 24 09 CECG 03099 25 Nu-Life Association (dispensary) 26 3742 North First St., Fresno CA 93726 Mitchell Danekas (owner) 27 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -29- DATED this ___9___ day of OCTOBER 2009. 1 2 3 4 ______A.M. Simpson______

5 Alan M. Simpson

6 Judge of the Superior Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUNTY OF FRESNO Fresno, CA

0936d56bbdc130fef479f7b4d35ae863.doc -30-