Kirby v. Cnty. of Fresno, F070056
| Decision Date | 01 December 2015 |
| Docket Number | F070056 |
| Citation | 195 Cal.Rptr.3d 815,242 Cal.App.4th 940 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Diana KIRBY, Plaintiff and Appellant, v. COUNTY OF FRESNO et al., Defendants and Respondents. |
Certified for Partial Publication.*
Henry G. Wykowski & Associates, Henry G. Wykowski, San Francisco, Christopher J. Wood and Andrew Scher, for Plaintiff and Appellant.
Best Best & Krieger, Jeffrey V. Dunn and Seena Samimi, Irvine, for Defendants and Respondents.
The County of Fresno (County) adopted an ordinance that banned marijuana dispensaries, cultivation and storage of medical marijuana in all its zoning districts. It classified violations of the ordinance as both public nuisances and misdemeanors. It also limited the use of medical marijuana to qualified medical marijuana patients at their personal residences only.
Plaintiff Diana Kirby sued to invalidate the ordinance. She alleged the ordinance created an unconstitutional conflict with the right to cultivate, possess and use medical marijuana provided by the Compassionate Use Act of 1996 (CUA) ( Health & Saf. Code, § 11362.5 )1 and the Medical Marijuana Program (MMP) (§ 11362.7 et seq.) and, more specifically, deprived her of the right to cultivate medical marijuana at her residence for her personal use. Kirby also alleged the ordinance's criminalization of cultivation and storage conflicted with subdivision (e) of section 11362.71, which expressly states that certain persons shall not be "subject to arrest for possession ... or cultivation of medical marijuana in an amount established pursuant to [the MMP]."
County demurred, arguing Kirby had failed to state a cause of action because its ordinance did not conflict with the narrowly drawn statutes. The trial court agreed and sustained the demurrer without leave to amend. Kirby appealed, contending her pleading identified three ways the ordinance conflicted with state law, each of which was sufficient to state a cause of action on the legal theory that all or part of the ordinance was preempted by state law. Kirby also contends the trial court abused its discretion in denying her leave to amend.
We conclude the ban on cultivation adopted under the County's authority to regulate land use does not conflict with the CUA or the MMP, which do not expressly restrict local government's authority over land use. As to implicit restrictions, we recognize the statutory provisions contain some ambiguities, but applicable legal principles require a clear indication of the Legislature's intent to restrict local government's inherent power to regulate land use. The ambiguous provisions fail to provide that clear indication. We therefore uphold the County's ban on marijuana dispensaries, cultivation and storage of medical marijuana.
In contrast, we conclude that the provision in the ordinance that classifies the cultivation of medical marijuana as a misdemeanor is preempted by California's extensive statutory scheme addressing crimes, defenses and immunities relating to marijuana. Among other things, the attempt to criminalize possession and cultivation is not consistent with the obligation section 11362.71, subdivision (e) imposes on local officials not to arrest certain persons possessing or cultivating marijuana. Therefore, Kirby has stated a narrow cause of action challenging the validity of the criminalization provision.
We therefore reverse the judgment of dismissal.
Kirby lives in an unincorporated area of Fresno County. She has a physician's recommendation for the medical use of marijuana and alleges she is a "qualified patient" as defined by section 11362.7, subdivision (f).2 Kirby was in a serious accident in 1972 and lost her left leg, broke her back in three places, shattered her face and lost sight in her left eye. She is allergic to pain medications and her chronic pain is treatable only with cannabis as recommended by her physician.
Prior to the adoption of County's ordinance, Kirby relied on the provisions of section 11362.77 to cultivate within her personal residence six or fewer marijuana plants for personal medicinal use.
Two appellate decisions are important historically because they were decided before County adopted its ordinance and most likely relied upon by County in drafting its ordinance.
In May 2013, the California Supreme Court considered the validity of a city zoning ordinance that banned dispensaries that cultivate and distribute medical marijuana and declared them to be a public nuisance. ( City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729[156 Cal.Rptr.3d 409, 300 P.3d 494] ( Inland Empire ).) In that case, the city filed a complaint against a dispensary and sought injunctive relief to abate the public nuisance. ( Id. at pp. 740-741, 156 Cal.Rptr.3d 409, 300 P.3d 494.) The trial court granted a preliminary injunction, which was affirmed by the Court of Appeal and the Supreme Court. ( Id. at p. 742, 156 Cal.Rptr.3d 409, 300 P.3d 494.) The court concluded that the CUA and MMP did not preempt the city's ban on marijuana dispensaries, which was a valid exercise of the local jurisdiction's inherent authority to regulate land use. ( Inland Empire, supra, at pp. 738, 744, 156 Cal.Rptr.3d 409, 300 P.3d 494.)
In November 2013, the Third Appellate District considered whether the land use authority that allowed Riverside to ban dispensaries also allowed a city to ban the cultivation of medical marijuana. The ordinance in question stated medical marijuana cultivation by any person was " ‘prohibited in all zone districts within the City of Live Oak.’ " ( Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 979 ( Maral ).) The plaintiffs in Maral challenged the ordinance, alleging it violated the CUA, the MMP, and their constitutional rights to equal protection and due process. ( Maral, supra, at pp. 979-980, 164 Cal.Rptr.3d 804.) The trial court sustained the city's demurrer and dismissed the plaintiffs' second amended complaint without leave to amend. ( Id. at p. 980, 164 Cal.Rptr.3d 804.) The Third Appellate District affirmed the dismissal. ( Id. at p. 985, 164 Cal.Rptr.3d 804.) The court (1) stated the right to cultivate marijuana was the basis for each of the plaintiffs' causes of action and (2) concluded no such right existed. ( Id. at p. 984, 164 Cal.Rptr.3d 804.) The court relied on Inland Empire and Browne v. County of Tehama (2013) 213 Cal.App.4th 704 ( Browne ), a case that upheld a county ordinance that restricted (but did not ban) the cultivation of medical marijuana.3
In January 2014–less than two months after the Maral decision–County's board of supervisors considered and unanimously adopted Ordinance No. 14-001 and amended the Fresno County Code (County Code).4 The stated purpose and intent of Ordinance No. 14-001 was "to immediately prohibit the large-scale cultivation of medical marijuana in order to preserve the public peace, health, safety and general welfare of the citizens of Fresno County." (County Code, § 10.60.010.) The medical marijuana provisions of the ordinance took effect in early February 2014.
Sections 10.60.050 and 10.60.060 of the County Code prohibit medical marijuana dispensaries and cultivation "in all zone districts in the County." (County Code, § 10.60.060.) "Cultivation" is defined as "the planting, growing, harvesting, drying, processing, or storage of one or more marijuana plants or any part thereof in any location." (Id. , § 10.60.030, subd. D.) Violations of the County Code's ban on the cultivation and storage of medical marijuana "is declared to be a public nuisance and each person or responsible party is subject to abatement proceedings under chapter 10.62." (County Code, § 10.60.070.) Under the abatement provisions, a public official with information that such a public nuisance "exists upon private property in the unincorporated area of the [C]ounty, shall make a reasonable investigation of the facts and if possible inspect the property to determine whether or not a public nuisance exists." (Id. , § 10.62.030.) (Ibid. )
If a public official reasonably determines that a public nuisance involving medical marijuana exists, the official shall give written notice to the property owner, either by mail or by posting the notice on the property. The notice shall describe the public nuisance and the work required to abate the nuisance. The notice shall order the nuisance be abated within a reasonable time as determined by the official, which normally will be 15 days from the mailing of the notice. (Id. , § 10.62.040 subd. C) The administrative penalty for violations is $1,000 per plant plus $100 per plant for each day that the plant remains unabated past the deadline set in the written notice ordering abatement. In addition, persons who violate the County Code's prohibitions relating to medical marijuana "shall be guilty of a misdemeanor and subject to the penalties as set forth in chapter 1.12, chapter 10.62 as well as the administrative penalties as set forth in chapter 10.64."
If County brings a civil action to enforce the medical marijuana provisions in the County Code, "the person responsible for such violation shall be liable to the [C]ounty for costs of the suit, including, but not limited to, attorney's fees." (County Code, § 10.60.080, subd. C.)
The ordinance also contains a savings or severability provision,...
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