People v. Braum

• Decision Date: 22 April 2020
• Docket Number: B289603, B289604
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel BRAUM et al., as Executors, etc., and as Trustees, etc., Defendants and Appellants.

49 Cal.App.5th 342

263 Cal.Rptr.3d 1

The PEOPLE, Plaintiff and Respondent,

v.Daniel BRAUM et al., as Executors, etc., and as Trustees, etc., Defendants and Appellants.

B289603, B289604

Court of Appeal, Second District, Division 5, California.

Filed April 22, 2020

Certified for Partial Publication.^*

Stuart M. Miller, Irvene, for Defendants and Appellants.

Michael N. Feuer, City Attorney of Los Angeles, Arturo A. Martinez, Assistant City Attorney, Meredith A. McKittrick and Andrew K. Wong, Deputy City Attorneys, for Defendant and Respondent.

KIM, J.

I. INTRODUCTION

Michael Braum (Braum)¹ leased two commercial properties in the City of Los Angeles (City) to tenants for use as medical-marijuana dispensaries and then received notice that the dispensaries violated the City's zoning code. The City² filed two civil enforcement actions against Braum and the Trust, and the trial court entered judgments against them imposing civil fines in excess of $6 million.

Defendants appeal from the judgments, arguing that: the judgments violated the double jeopardy clauses of the federal and state constitutions because the City had previously obtained a criminal conviction against Braum based on the same offenses underlying the judgments; the $6 million in civil fines violated the excessive fines clauses of the federal and state constitutions; neither the trial court nor the City had the authority to require Braum to evict the dispensaries; the City's "maze" of medical-marijuana regulations were void for vagueness under the due process clause; and the trial court erred in holding Braum personally liable. We affirm.

II. REGULATORY AND PROCEDURAL BACKGROUND

A. Overview of State and Local Regulation of Medical Marijuana³

1. Compassionate Use Act (CUA) (1996)

In 1996, state voters approved the CUA (Proposition 215; Health & Safety Code § 11362.5 ), which immunized from prosecution physicians who recommended marijuana to patients for medical purposes. ( 420 Caregivers, supra , 219 Cal.App.4th at p. 1324, 163 Cal.Rptr.3d 17.) The CUA also immunized from prosecution patients and their primary caregivers⁴ who cultivated and possessed marijuana that had been physician recommended or approved for patients. ( Ibid . )

2. Medical-Marijuana Program Act (MPA) (2003)

In 2003, the MPA was enacted to clarify the scope of the CUA and promote its uniform application. ( 420 Caregivers, supra , 219 Cal.App.4th at p. 1325, 163 Cal.Rptr.3d 17.) It expanded the classes of persons to which immunity from prosecution applied. ( Ibid . ) Among other persons, the MPA immunized qualified caregivers and persons with identification cards⁵ who cooperatively cultivated marijuana for medical purposes. ( Ibid . ) Pursuant to a subsequent amendment, the MPA also authorized local governments to adopt ordinances to regulate the location, operation, and establishment of medical-marijuana cooperatives and to engage in criminal and civil enforcement of such ordinances. ( Id. at p. 1326, 163 Cal.Rptr.3d 17.)

3. The Interim Control Ordinance (ICO) (2007)

In August 2007, the City passed the ICO (no. 179,027) in response to concerns about the proliferation of storefront medical-marijuana dispensaries within the City. ( 420 Caregivers, supra , 219 Cal.App.4th at p. 1326, 163 Cal.Rptr.3d 17.) The ICO prohibited the establishment of medical-marijuana dispensaries within City limits for one year or until a permanent ordinance was enacted. ( Ibid . ) But the ICO exempted from its prohibition dispensaries established before September 14, 2007, as long as those dispensaries operated in accordance with state law and filed certain required documents with the City by November 13, 2007.⁶ ( Id . at p. 1327, 163 Cal.Rptr.3d 17.) Following the City's exercise of two six-month optional extensions of the ICO's interim one-year prohibition, and then the subsequent enactment of a second interim ordinance (no. 180,749), the ICO's prohibition against the establishment of medical-marijuana dispensaries was to remain in force until March 15, 2010, or until a permanent ordinance was enacted. ( Ibid . )

4. The Permanent Ordinance (2010)

In January 2010, the City enacted the Permanent Ordinance (no. 181,069; L.A. Mun. Code, former § 45.19.6 et seq.) which regulated " ‘medical[-]marijuana collectives’ " and required them to submit to a new registration and approval process. ( 420 Caregivers, supra , 219 Cal.App.4th at pp. 1328–1329, 163 Cal.Rptr.3d 17 ; Safe Life, supra , 243 Cal.App.4th at p. 1035, 197 Cal.Rptr.3d 524.) The Permanent Ordinance permitted only 70 collectives to operate in the City, but also included a grandfather clause that allowed existing collectives that had properly registered under the ICO to remain in operation. ( Safe Life, supra , 243 Cal.App.4th at p. 1035, 197 Cal.Rptr.3d 524.) Because there were "substantially more than 70 collectives in operation that could qualify under the grandfather clause ... [the Permanent Ordinance] would likely have had the effect of prohibiting all collectives that had not previously registered under the [ICO]." ( Id . at pp. 1035–1036, 197 Cal.Rptr.3d 524.)

5. The Preliminary Injunction and the Urgency Measure (2011)

In response to the Permanent Ordinance, certain medical-marijuana collectives filed suit seeking an injunction on the grounds that the ordinance denied equal protection to collectives that had not previously registered under the ICO. ( Safe Life, supra , 243 Cal.App.4th at p. 1036, 197 Cal.Rptr.3d 524.) When a trial court issued the requested injunction, the City enacted an Urgency Measure (no. 181,530) which modified the Permanent Ordinance to provide that all collectives that had been in operation prior to September 14, 2007, were eligible to register for a lottery from which 100 collectives would be chosen for inspection and registration. ( Ibid . )

The City appealed from the injunction against the Permanent Ordinance and, in July 2012, the Court of Appeal issued its opinion in 420 Caregivers, supra , 219 Cal.App.4th at p. 1336, 163 Cal.Rptr.3d 17, reversing the injunction and upholding the Permanent Ordinance. ( Safe Life, supra , 243 Cal.App.4th at pp. 1338–1339, 197 Cal.Rptr.3d 524.) Due to a grant of review, however, the decision in 420 Caregivers did not become final until November 2013. ( Safe Life, supra , 243 Cal.App.4th at pp. 1036–1037, 197 Cal.Rptr.3d 524.)

6. Proposition D (2013)

The City then passed an ordinance (no. 182,443) calling for a special election for a public vote on Proposition D. ( Safe Life, supra , 243 Cal.App.4th at p. 1037, 197 Cal.Rptr.3d 524.) In May 2013, City voters approved Proposition D which enacted a new ordinance (no. 182,580) relating to the regulation of medical marijuana. ( Ibid . ) Proposition D made it " ‘unlawful to own, establish, operate, use, or permit the establishment or operation of a medical[-]marijuana business⁷ ...’ in the City. ( [L.A.] Mun. Code, § 45.19.6.2, subd. A.)" ( Ibid . ) Proposition D also included an exception for medical-marijuana businesses that met general requirements, including that the business must have timely registered under both the ICO and the Permanent Ordinance. ( Ibid . )

B. The Leases

1. The Emerald Dispensary Lease (July 2007)

On June 21, 2005, the Trust took title to the real property located at 13321 Ventura Boulevard in Sherman Oaks. On June 22, 2007, "Braum Real Estate," as lessor, leased that property to two individual lessees. The lease granted the lessees the right to use the premises for the purpose of "SALES OF MEDICAL CANNABIS." Braum executed the lease as "LESSOR." Emerald Triangle Collective, Inc. (Emerald dispensary) operated a "medical[-]marijuana dispensary" at the location. The monthly rent for the dispensary was $1,660.

2. The Ventura Dispensary Lease (January 2009)

On June 21, 2005, the Trust took title to the real property located at 11306 Ventura Boulevard in Studio City. On January 7, 2009, Braum Real Estate, as lessor, leased that property to a lessee, for the express purpose of operating "MEDICAL[-]MARIJUANA COLLECTIVES." Braum executed the lease as "LESSOR" in his capacity as "OWNER." A "medical[-]marijuana dispensary" conducted business at that location and was owned and operated by Ventura Herbal Center, Inc. (Ventura dispensary). The monthly rent for the dispensary was $3,000

C. Emerald and Ventura Actions

1. Cease and Desist Letters (2010–2011)

On May 4, 2010, the City sent Braum a letter advising him, among other things, that "[t]he establishment at the above referenced address [the Emerald dispensary was] operating as a medical[-]marijuana provider and did not register with the City Clerk prior to November 13, 2007. Consequently, the establishment does not, and cannot, comply with the requirements of [the Los Angeles Municipal Code]. Under [s]ection 45.19.6.7, this establishment must therefore immediately cease its operations." On March 7, 2011, the City sent Braum a second letter with substantially the same advisement and demand. And, on May 11, 2011, the City sent Braum a similar cease and desist letter regarding the Ventura dispensary.

2. Civil Enforcement Complaints (2011)

On August 10, 2011, the City filed two substantially similar civil enforcement complaints against Braum, individually and as trustee of the Trust.⁸ In addition to Braum, the first complaint named as defendants the Emerald dispensary and four of its individual officers and/or directors (Emerald dispensary defendants). The second complaint against Braum also named as defendants the Ventura dispensary and two of its individual officers and/or directors (Ventura dispensary defendants).

As against Braum, each of the complaints alleged two causes of action for: (1) using a building without a required permit, in violation of Los Angeles Municipal Code section 12.21 A.1(a) (zoning violation),⁹ and (2) maintaining a nuisance, namely, a building used for unlawful narcotics activity, in violation of Health and Safety Code section 11570 et seq. (narcotics abatement).¹⁰...