APPEAL from an order of the Superior Court of Los Angeles County. R. Bruce Minto, Judge. (Los Angeles County Super. Ct. No. KC 055545)
The opinion of the court was delivered by: Rothschild, J.
CERTIFIED FOR PUBLICATION
Martin Hill and the Alternative Medicinal Collective of Covina (defendants) appeal from an order granting a preliminary injunction prohibiting them from dispensing marijuana anywhere in the unincorporated area of Los Angeles County (County) without first obtaining the necessary licenses and permits required by County ordinances. Defendants contend that the order granting the injunction should be reversed because the County's ordinances regulating medical marijuana dispensaries (MMD's) are preempted by state law, inconsistent with state law and unconstitutionally discriminate against MMD's. We find no merit to any of these contentions and affirm the injunction.
STATUTORY AND REGULATORY BACKGROUND
In 1996, California voters adopted Proposition 215, the
"Compassionate Use Act" (Health & Saf. Code, § 11362.5)*fn1
The Act is intended 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"; "ensure that patients and
their primary caregivers who obtain and use marijuana for medical
purposes upon the recommendation of a physician are not subject to
criminal prosecution or sanction" and "encourage the federal and state
governments to implement a plan to provide for the safe and affordable
distribution of marijuana to all patients in medical need of
marijuana." (Health & Saf. Code, § 11362.5, (b)(1)(A)--(C).) The Act
provides in relevant part that it shall not "be construed to supersede
legislation prohibiting persons from engaging in conduct that
endangers others . . . ." (§ 11362.5, subd.
In 2003, the Legislature added the "Medical Marijuana Program Act," article 2.5, to the Health and Safety Code. The purposes of article 2.5 include "[promoting] uniform and consistent application of the [Compassionate Use Act] among the counties within the state" and "[enhancing] the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." (Stats. 2003, ch. 875, § 1, subd (b).) The statute includes guidelines for the implementation of the Compassionate Use Act. Among other things, it provides that qualified patients and their primary caregivers have limited immunity from prosecution for violation of various sections of the Health and Safety Code regulating marijuana including the "drug den" abatement law.*fn2 (§§ 11362.765, 11362.775.) Most significant for our case, the statute provides: "Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article." (§ 11362.83.)
In June 2006, the County adopted ordinances regulating the operation of medical marijuana dispensaries in unincorporated areas of the County. Los Angeles County Code (LACC) section 22.56.196, subdivision (A) states: "This section is established to regulate medical marijuana dispensaries in a manner that is safe, that mitigates potential impacts dispensaries may have on surrounding properties and persons, and that is in conformance with the provisions of California Health and Safety Code section 11362.5 through section 11362.83, inclusive, commonly referred to as the Compassionate Use Act of 1996 and the Medical Marijuana Program." The section also provides: "The establishment and operation of any medical marijuana dispensary requires a conditional use permit in compliance with the requirements of this section." (LACC § 22.56.196, subd. (B).) Moreover, "[d]ispensaries shall not be located within a 1,000 foot radius of schools, playgrounds, parks, libraries, places of religious worship, child care facilities, and youth facilities . . . ." (Id., subd. (E)(1)(a).) In addition, an MMD cannot lawfully operate without obtaining a business license. (LACC § 7.55.020 The County's zoning ordinance, LACC section 22.28.110, states that an MMD may operate in a C-1 zone "subject to the requirements of section 22.56.196" discussed above.
County ordinances applicable to all businesses provide that a use that does not comply with the zoning code is a public nuisance (LACC § 22.60.350) and authorize the County to seek injunctions against businesses operating in violation of the zoning laws. (LACC §§ 7.04.340; 22.60.350).
The County brought a nuisance action against defendants seeking injunctive and declaratory relief on the ground that defendants were operating an MMD in an unincorporated area of the County without having obtained a business license, a conditional use permit and a zoning variance to allow it to operate within a 1000 foot radius of a public library.
At the hearings on the County's applications for a temporary restraining order and preliminary injunction, defendants did not deny that they were operating an MMD next to a library without having applied for a license, conditional use permit or zoning variance. Instead, they argued that these requirements were preempted by state law, inconsistent with state law and unconstitutional.
The trial court granted the County's request for a temporary restraining order and preliminary injunction prohibiting defendants from "possessing, offering, selling, or giving away marijuana" anywhere in the unincorporated area of the County of Los Angeles without the necessary permits and licenses required by local and state law. Defendants filed a timely appeal.
While this appeal was pending the Legislature enacted section 11362.768, effective January 1, 2011, which specifically recognizes and partially regulates medical marijuana "dispensaries" having "a storefront or mobile retail outlet which ordinarily requires a local business license." (Id. subd. (e).) The statute states in relevant part: "(b) No medical marijuana cooperative, collective, dispensary, operator, establishment, or provider who possesses, cultivates, or distributes medical marijuana pursuant to this article shall be located within a 600-foot radius of a school. [¶] . . . [¶] (f) 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. [¶] (g) 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 ...