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Conejo Wellness Center, Inc v. City of Agoura Hills

March 29, 2013

CONEJO WELLNESS CENTER, INC., PLAINTIFF, CROSS-DEFENDANT AND APPELLANT,
v.
CITY OF AGOURA HILLS, DEFENDANT, CROSS-COMPLAINANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Terry A. Green, Judge. (Los Angeles County Super. Ct. No. BC447983)

The opinion of the court was delivered by: Sortino, J.*fn9

CERTIFIED FOR PUBLICATION

Affirmed.

INTRODUCTION

Appellant Conejo Wellness Center, Inc. (Conejo) is located in the City of Agoura Hills. Conejo is a California cooperative corporation that operates as a nonprofit collective engaged in the distribution of medical marijuana to its members. Respondent is the City of Agoura Hills (Agoura).

In the court below, Conejo filed a complaint which sought injunctive and declaratory relief against Agoura based on two Agoura municipal ordinances: (1) ordinance No. 08-355, which expressly bans medical marijuana dispensaries as defined therein, and (2) ordinance No. 10-379, which amends the Agoura Hills Municipal Code (AHMC) in various ways that affect medical marijuana dispensaries. Conejo's complaint alleged eight causes of action: (1) enactment of No. 10-379 did not comply with section 65853 of the Government Code and the ordinance is therefore void; (2) No. 10-379 violates the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.); (3) both ordinances are preempted by California law, specifically by the Compassionate Use Act of 1996 (CUA; Health & Saf. Code, § 11362.5) and the Medical Marijuana Program Act of 2003 (MMPA; Health & Saf. Code, § 11362.7 et seq.); (4) No. 10-379 violates, and specific conduct by Agoura violated, state constitutional rights to substantive due process, procedural due process, and equal protection of the laws; (5) both ordinances violate the state constitutional rights to privacy and freedom of association; (6) No. 10-379 violates state and federal constitutional prohibitions against ex post facto laws and laws which impair vested contract rights; (7) for a declaration that No. 10-379 is unconstitutional and an injunction prohibiting its further enforcement; and (8) for a writ of mandate (Code Civ. Proc., § 1085) compelling Agoura to permit Conejo to operate as a nonprofit medical marijuana collective consistent with California law.

In response to Conejo's complaint, Agoura filed a cross-complaint which sought both declaratory and injunctive relief. The cross-complaint initially alleged four causes of action for a permanent injunction to abate Conejo's continued operation as a public nuisance, based upon the following: (1) Conejo's failure to obtain proper permits and approvals from Agoura; (2) Conejo's failure to obtain a valid business license from the County of Los Angeles; (3) Conejo's violation of ordinance No. 08-355; and (4) Conejo's violation of ordinance No. 10-379. Agoura's fifth cause of action sought declaratory relief based upon the first four causes of action.

The trial court dismissed Conejo's second cause of action on procedural grounds, a ruling Conejo does not appeal. Subsequently, the court granted Agoura's motion for summary judgment on the balance of the complaint. The court also granted Agoura's motion for summary adjudication of the cross-complaint's third cause of action. Agoura then effectively dismissed the balance of its cross-complaint.*fn1 Thereafter, the trial court entered judgment against Conejo on both its original complaint and Agoura's cross-complaint. As part of its judgment, the trial court permanently enjoined Conejo from "selling, providing, or otherwise making available marijuana at or from" its current location or any other location within Agoura.*fn2

Conejo now appeals from the trial court's orders granting summary judgment and summary adjudication, and from its final judgment enjoining Conejo's further distribution of marijuana.

BACKGROUND

The issues raised by this appeal involve the interplay of various state and local laws, enacted at various times. What follows then, is not only a statement of the facts established by the record below, but also a chronology of the state and local laws involved.

1. Agoura's Land Use Ordinances Prior to the CUA and MMPA

At all times relevant to the issues raised by this appeal, Conejo operated in an area described by Agoura's zoning laws as the Business Park Manufacturing District (Manufacturing District).

In 1987, Agoura adopted ordinance No. 120, which amended the AHMC and enacted a series of land use statutes. Of relevance here, the ordinance enacted AHMC sections 9310.200 and 9310.220, which established a commercial use table identifying the specific land uses permitted within the Manufacturing District, as well as within other commercial districts in Agoura. Section 9310.210 of the ordinance prohibited any use not expressly authorized by the commercial use table or interpreted by the city planning commission to be similar to an authorized use. The commercial use table enacted as part of ordinance No. 120 did not list "medical marijuana dispensary" as a permitted use within the Manufacturing District, or any other commercial district. In their briefs, neither side contends that the city planning commission at any time interpreted "medical marijuana dispensary" to be similar to an expressly authorized use.

While this litigation was pending in the trial court, Agoura adopted ordinance No. 11-388, which renumbered and amended Agoura's land use statutes, and also enacted a new commercial use table. The changes, however, are not material to this litigation: the new commercial use table does not list "medical marijuana dispensary" as a permitted use within any commercial district and the new ordinance still prohibits any use not expressly authorized or interpreted as similar to an authorized use by the city planning commission. (See generally, AHMC § 9311-§ 9312.3; see also § 9381-§ 9382.2.)

2. The CUA

In 1996, California voters approved Proposition 215, known as the CUA, which is codified in Health and Safety Code section 11362.5.*fn3 The CUA provides that no physician shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. (§ 11362.5, subd. (c).) The CUA also immunizes specific persons from specific prosecutions under the Health and Safety Code:

"Section 11357, relating to the possession of marijuana, and [s]section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." (§ 11362.5, subd. (d).)

The CUA defines "primary caregiver" as the person designated by the patient "who has consistently assumed responsibility for the [patient's] housing, health, or safety." (§ 11362.5, subd. (e).)

The CUA also provides that "[n]othing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for non-medical purposes." (§ 11362.5, subd. (b)(2).) It also expressly "encourage[s] 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." (§ 11362.5, subd. (b)(1)(C).)

3. The MMPA

In 2003, the California Legislature enacted the MMPA, codified in sections 11362.7 through 11362.83. The MMPA was passed, in part, to clarify the scope of the CUA and promote its uniform application "among the counties within the state." (Stats. 2003, ch. 875, § 1.)

To accomplish these goals, the MMPA empowers the Department of Health Services to create a voluntary program for the issuance of identification cards to "qualified patients." (§ 11362.71, subd. (a)(1).) "Qualified patients" are defined as those persons "entitled to the protections" of the CUA. (§ 11362.7, subd. (f).)

The MMPA then grants immunity from prosecution to an expanded list of offenses so long as the underlying conduct involves medical marijuana use:

"Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under [s]section[s] 11357 [(possession)], 11358 [(cultivation)], 11359 [(possession for sale)], 11360 [(sales)], 11366 [(maintaining a place)], 11366.5 [(providing a place)], or 11570 [(nuisance)]." (§ 11362.765, subd. (a), italics added.)

The MMPA establishes three groups of persons entitled to the immunity described above: (1) qualified patients, persons with identification cards, and the primary caregivers of such persons; (2) individuals who assist the aforementioned patients, card holders, and primary caregivers in administering medical marijuana; and (3) individuals who assist patients, card holders, and primary caregivers in acquiring the skills necessary to cultivate or administer medical marijuana. (§ 11362.765, subd. (b).)

Significantly, the MMPA also expressly extends immunity from prosecution under the same enumerated Health and Safety Code sections to certain "collective," conduct:

"Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under [s]section[s] 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570." (§ 11362.775.)

The MMPA, as originally enacted, also affirmatively provided that "[n]othing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article." (Stats. 2003, ch. 875, § 2 [former § 11362.83].) The legislature amended this section, effective January 1, 2012, to read, in full, as follows:

"Nothing in this article shall prevent a city or other local governing body from adopting and enforcing any of the following: [¶] (a) Adopting local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective. [¶] (b) The civil and criminal enforcement of local ordinances described in subdivision (a). [¶] (c) Enacting other laws consistent with this article." (§ 11362.83, italics added; Stats. 2011, ch. 196, § 1.)

4. Conejo's Creation and Operation

Conejo began operation in April 2006 and incorporated as a cooperative in June 2006. Conejo operates as a nonprofit collective that maintains quantities of medical marijuana at its location for distribution to its members.

5. Ordinance No. 08-355

On September 10, 2008, Agoura adopted ordinance No. 08-355, which added section 9660 to article IX of the AHMC. Section 9660, subdivision (C), expressly states that operation of a "[m]edical [m]arijuana [d]ispensary is not a permitted use anywhere in the [c]ity." As if to emphasize the point, the section further provides that "[i]t shall be unlawful for any person or entity to own, manage, establish, conduct, or operate, or permit to be established, conducted, operated, owned or managed as a landlord or property owner, any [m]edical [m]arijuana [d]ispensary, or to participate as a landlord, owner, employee, contractor, agent or volunteer, or in any other manner or capacity, in any [m]edical [m]arijuana [d]ispensary, in the [c]ity."

AHMC section 9660, subdivision (B)(1), defines a medical marijuana dispensary:

"Medical Marijuana Dispensary: is any location, structure, facility, vehicle, store, co-op, residence, or similar facility used, in full or part, as a place at or in which marijuana is sold, traded, exchanged, bartered for in any way, made available, located, stored, placed, or cultivated, including any of the foregoing if used in connection with the delivery of marijuana."

Other pre-existing sections contained in article IX provide the enforcement mechanism for AHMC section 9660. Section 9842 deems "any condition caused [by] or permitted to exist in violation of any of the provisions of [article IX]" a public nuisance. Section 9844 makes any violation of article ...


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