The opinion of the court was delivered by: Duarte , J.
City of Auburn v. Sierra Patient & Caregiver Exchange
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In recent years, there has been considerable litigation over the regulation, and in some cases the outright ban, of medical marijuana dispensaries. This case concerns an outright ban. However, as we explain post, to resolve this case, we need not reach the issue of whether a local government may ban marijuana dispensaries, an issue currently pending before our Supreme Court.*fn1
The trial court granted the City of Auburn a preliminary injunction against Sierra Patient and Caregiver Exchange, Inc. and Richard Miller (collectively Miller), after Miller obtained a license for a flower shop, but opened a marijuana dispensary, forbidden by an Auburn ordinance. On appeal, Miller contends that Auburn's dispensary ban is preempted by the Compassionate Use Act of 1996 (CUA) and the Medical Marijuana Program (MMP). (Health & Saf. Code, §§ 11362.5, 11362.7 et seq.)*fn2
As we will explain, the record in this case, viewed in the light favorable to the trial court's order, shows Miller committed a nuisance per se by surreptitiously opening a dispensary. Further, Miller did not establish irreparable harm. Because Miller's business license violation independently shows a nuisance per se, we shall affirm the order granting Auburn a preliminary injunction to preserve the status quo pending trial.
FACTUAL AND PROCEDURAL BACKGROUND
Auburn requires all businesses, "whether or not carried on for profit" to procure a license. (Auburn Mun. Code, §§ 33.001, 33.002(A)(1).) An applicant must furnish "a sworn statement" including, "The exact nature or kind of business for which a license is requested." (Id., § 33.002(D)(1)(a).)
Auburn also bans dispensaries. Section 159.019 of the Auburn Municipal Code, part of its zoning regulations, provides:
"The following uses are prohibited in all zones established by this chapter and may not be conducted anywhere in the city:
"(A) Medical marijuana dispensaries or any other facility or use that involves the distribution of drugs or other substances which it is illegal to distribute or possess under state or federal law.
"(1) No conduct protected from criminal liability pursuant to the Compassionate Use Act [citation] and the Medical Marijuana Program Act [citation] shall be made criminal by this code. Such conduct that violates the requirements of this code shall be subject to non-criminal remedies only."
Although a person may apply for a "hardship" variance from zoning regulations, "no variance may be granted to permit a land use in any district where the land use is prohibited by the provisions of this chapter." (Auburn Mun. Code, § 159.420.)
Auburn's enforcement provisions state, "It shall be unlawful for any person to violate any provisions or to fail to comply with any of the requirements of this code[.]" (Auburn Mun. Code, § 10.99(A)(1).) "In addition to the penalties provided by this section, any condition caused or permitted to exist in violation of any of the provisions of this code . . . shall be deemed a public nuisance and may be summarily abated by the city in a civil action[.]" (Id., § 10.99(A)(4).)
Miller's License Application and Ensuing Litigation
On April 8, 2011, Miller filed a business license application to open "S&R Blooms & Blossoms," engaged in the business of "variety store; florist shop." Based on Miller's signed declaration, Auburn issued him a license that week.
On July 19, 2011, Auburn sued Miller, alleging he violated its license and dispensary ordinances. Auburn sought abatement, and declaratory and injunctive relief.
Attached to the complaint was a letter from Miller's counsel dated July 14, 2011, rejecting a July 12, 2011 cease-and-desist letter. Miller argued the dispensary ban was unlawful, he sold floral arrangements, and his failure to mention the dispensary in his application was irrelevant because the ban was invalid. Miller's letter attached unauthenticated information about his "collective."*fn3
On July 22, 2011, Auburn obtained a temporary restraining order (TRO) and an order to show cause for a preliminary injunction, based on Miller's misleading license application and his operation of a dispensary.
Detective Rick Hardesty supplied Auburn's key evidence; he had conducted an undercover operation on June 29, 2011. The store's windows were blacked out. After Miller's employee asked for an undercover agent's "medical marijuana card and identification[,]" she offered the agent a free "marijuana-laced chocolate-chip cookie" normally sold for $8, and said, "'Richard' makes all of their edible products." The agent bought one-eighth of an ounce of marijuana for $43.30 (with tax), packaged in a "prescription" bag, and was given a copy of the ...