The City of Claremont's moratorium on dispensaries of medical marijuana and a Superior Court injunction shuttering a dispensary have been upheld by the Second District Court of Appeal.
The city won the injunction in 2008 after demanding that the dispensary close because it violated the Municipal Code. The dispensary had contended that the city's moratorium and Municipal Code were superceded by the state's medical marijuana law and that the injunction was too broad.
In 2006, Claremont denied a business license to the operator of the dispensary on the ground that the city's Land Use and Development Code did not permit a business to sell marijuana. The operator defied the city and opened the dispensary anyway. In response, the city adopted the moratorium prohibiting medical marijuana dispensaries. In early 2007, the city went to court to shut down the business as a nuisance. The Second District found that nothing in the Compassionate Use Act (CUA), approved by voters in 1996, precluded the city's actions.
"The plain language of the statute does not prohibit the city from enforcing zoning and business licensing requirements applicable to defendants' proposed use," Justice Victoria Chavez wrote for the unanimous three-judge panel. "The CUA does not authorize the operation of a medical marijuana dispensary, nor does it prohibit local governments from regulating such dispensaries."
While CUA (Proposition 215) passed in 1996, medical marijuana dispensaries have not proliferated until recently. Scores of cities and counties have enacted moratoria to block dispensaries from opening while the cities and counties consider a permanent ban or zoning restrictions. Some jurisdictions have banned dispensaries outright, while others have prohibited new ones from opening. Medical marijuana advocates say some of these regulations are illegal, although courts have sided with local governments.
In the Claremont case, Darrell Kruse and Claremont All Natural Nutrition Aids Buyers Information Service (CANNABIS) applied for a business permit and business license for a "medical marijuana caregivers collective and information service" on September 14, 2006. Months earlier, city planners had advised Kruse that a marijuana dispensary would be illegal under Claremont's Land Use and Development Code. Nevertheless, Kruse opened for business on September 15 – the same day the city denied his application.
He appealed the denial of his application to the City Council, but on September 26, it adopted a 45-day moratorium on marijuana dispensaries. The council later declared Kruse's appeal moot. The moratorium was subsequently extended through September 2007, and then through September 2008. Before the 2008 moratorium expired, the city adopted an ordinance banning dispensaries outright, according to City Planner Lisa Prasse.
When Kruse kept his doors open, the city ordered him to cease and desist. Eventually, the city took Kruse to court, and, in January 2007, a Los Angeles County Superior Court judge found him guilty of operating a business without a license or permit. He was fined. When Kruse continued to sell marijuana, the city sought a restraining order and injunction to abate a public nuisance. Superior Court Judge Dan Oki backed the city's request and issued a permanent injunction shutting down Kruse's operation.
On appeal, Kruse denied that his dispensary was a nuisance on the ground that it did not sell controlled substances illegally and insisted that state law preempted the city from shutting him down.
In rejecting the nuisance appeal, the court cited the city's code, ruling that it "expressly states that a condition caused or permitted to exist in violation of the Municipal Code provisions may be abated as a public nuisance."
In deciding the preemption claim, the court reviewed the 1996 voter initiative and the medical marijuana program (Health and Safety Code § 11362.5 et seq.) approved by the Legislature in 2003. The initiative made use of marijuana legal if based on a physician's "recommendation," and the 2003 law provided a defense against prosecution for doctors, patients and caregivers. But because neither measure addressed zoning, land use or business licensing, the state laws could not "preempt the city's enactment of the moratorium or the enforcement of local zoning and business licensing requirements," Chavez wrote.
The court also held that the injunction – which barred Kruse from operating a dispensary anywhere in town while the moratorium was in effect – was not overly broad, and that the city correctly dismissed his appeal to the City Council as moot.
The Case:
City of Claremont v. Kruse, No. B210084, 2009 DJDAR 14037. Filed August 27, 2009. Ordered published September 22, 2009.
The Lawyers:
For the city: Jeffrey V. Dunn, Best, Best & Krieger, (949) 263-2600.
For Kruse: Burton Mark Senkfor, (310) 274-4100.
