Medical Cannabis Cultivation Ban -- Live Oak

8/3/2019 Medical Cannabis Cultivation Ban -- Live Oak

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ORDINANCE NO. 538

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

LIVE OAK REGARDING THE CULTIVATION AND SALE OF

MEDICAL MARIJUANA WITHIN THE CITY LIMITS

THE CITY COUNCIL OF THE CITY OF LIVE OAK DOES HEREBY ORDAIN AS

FOLLOWS:

SECTION 1. Table 17.02.020 of the Zoning Regulations is revised to add to the list of

Residential Accessory Uses to read as follows:

Medical marijuana cultivation Chapter 17.17

SECTION 2. Table 17.03.020 of the Zoning Regulations is revised to modify the list ofCommercial Uses to read as follows:

Medical marijuana dispensary Chapter 17.17

SECTION 3. A new Chapter 17.17 is hereby added to the Zoning Regulations to read as

follows:

17.17Standards for Medical Marijuana17.17.010 Findings and Purpose

A. The City Council hereby finds that the cultivation of medical marijuana significantlyimpacts, or has the potential to significantly impact, the Citys jurisdiction. Theseimpacts include damage to buildings in which cultivation occurs, including improper and

dangerous electrical alterations and use, inadequate ventilation, increased occurrences ofhome-invasion robberies and similar crimes and nuisance impacts to neighboring

properties from the strong and potentially noxious odors from the plants and increased

crime.

B. It is acknowledged that the voters of the State of California have provided a criminaldefense to the cultivation, possession and use of marijuana for medical purposes through

the adoption of the Compassionate Use Act in 1996 pursuant to Proposition 215 and

codified as Health and safety Code section 11362.5. The Compassionate Use Act (CUA)does not address the land use or other impacts that are caused by the cultivation of

medical marijuana.

C. The purpose of this Section is to adopt rules consistent with the CUA and the MedicalMarijuana Program Act (MMPA) commencing with Health and Safety Code section11362.7 to regulate medical marijuana in a manner that protects the public health, safety

and welfare of the community and prevents adverse impacts which such activities may

have on nearby properties and residents, without interfering with the rights of qualified


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patients and their primary caregivers to possess or cultivate medical marijuana pursuant

to state law.

D. The CUA is limited in scope, in that it only provides a defense from criminal prosecutionfor possession and cultivation of marijuana to qualified patients and their primary

caregivers. The scope of the MMPA is also limited in that it establishes a statewideidentification program and affords qualified patients, persons with identification cards

and their primary caregivers, an affirmative defense to certain enumerated criminalsanctions that would otherwise apply to transporting, processing, administering or

distributing marijuana.

E. The CUA and MMPA do not appear to have facilitated the stated goals of providingaccess to marijuana for patients in medical need of marijuana, but instead the

predominant use of marijuana has been for recreational and not medicinal purposes. As

the report issued by the California Chiefs Association on September 2009, entitledCalifornia Chiefs Association Position Paper on Decriminalizing Marijuana states, [i]t

has become clear, despite the claims of use by critically ill people that only about 2% ofthose using crude marijuana for medicine are critically ill. The vast majority of thoseusing crude marijuana as medicine are young and are using the substance to be under the

influence of THC [tetrahydrocannabinol] and have no critical medical condition.

(California Chiefs Associations Position Paper on Decriminalizing Marijuana, availableat the Planning Department.)

F. Facilities purportedly dispensing marijuana for medicinal purposes are commonlyreferred to as medical marijuana dispensaries, medical marijuana cooperatives or medicalmarijuana collectives; however, these terms are not defined anywhere in the CUA or

MMPA. Significantly, nothing in the CUA of MMPA specifically authorizes the

operation and the establishment of medical marijuana dispensing facilities.

G. Further, neither the CUA nor MMPA require or impose an affirmative duty or mandateupon local governments, such as the City of Live Oak, to allow, authorize or sanction theestablishment and the operation and establishment of facilities dispensing medical

marijuana within its jurisdiction. Moreover, the CUA did not create a constitutional right

to obtain medical marijuana.

H. It is critical to note that neither Act abrogates the Citys powers to regulate for publichealth, safety and welfare. Health and Safety Code 11362.5(b)(2) provides that the Act

does not supersede any legislation intended to prohibit conduct that endangers others. Inaddition, Health and Safety Code 11352.83 authorizes cities and counties to adopt and

enforce rules and regulations consistent with the MMPA.

I. On August 25, 2008, Edmond G. Brown, the California Attorney General, issuedGuidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use

(the Attorney General Guidelines), which sets regulations intended to ensure thesecurity and non-diversion of marijuana grown for medical use by qualified patients.

Health and Safety Code 11362.81(d) authorizes the Attorney General to develop and

adopt appropriate guidelines to ensure the security and non-diversion of marijuana grown


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for medical use by patients qualified under the CUA. Nothing in the Guidelines

imposes an affirmative mandate or duty upon local governments, such as the City of LiveOak, to allow, sanction or permit the establishment or the operation of facilities

dispensing medical marijuana within their jurisdictional limits.

J. Marijuana remains an illegal substance under the Federal Controlled Substances Act, 21U.S.C. 801, et seq. and is classified as a Schedule I Drug which is defined as a drug or

other substance that has a high potential for abuse, that is no currently accepted medicaluse in treatment in the United States, and that has not been accepted as safe for its use

under medical supervision. Furthermore, the Federal Controlled Substances Act makes it

unlawful for any person to cultivate, manufacture, distribute or dispense, or possess withintent to manufacture, distribute or dispense marijuana. The Controlled Substances Act

contains no statutory exemption for the possession of marijuana for medical purposes.

The City does not wish to be in violation of federal law.

K. Pursuant to the City of Live Oaks police powers authorized in Article XI, Section 7 ofthe California Constitution, as well as under the City of Live Oak Municipal Code, theCity has the power to regulate permissible land uses throughout the City and to enactregulations for the preservation of public health, safety and welfare of its residents and

community. And, pursuant to Government Code 38771 the City also has the power

through the City Council to declare actions and activities that constitute a publicnuisance.

L. The City Council finds that neither the CUA nor the MMPA preempts the Citys exerciseof its traditional police powers in enacting land use and zoning regulations, as well aslegislation for preservation of public health, safety and welfare, such as this zoning

ordinance prohibiting the establishment and operation of medical marijuana cooperatives

and collectives within the City.

M.The City Council finds that the public health, safety and general welfare of the City andits residents necessitates and requires the adoption of this zoning ordinance, prohibitingthe establishment and operation of medical marijuana cooperatives and collectives, in

order to: (a) protect and safeguard against the detrimental secondary negative effects and

adverse impacts of facilities dispensing medical marijuana; (b) preserve and safeguard

the minors, children and students in the community from the deleterious impacts ofmedical marijuana facilities; and (c) preserve the Citys law enforcement services, in that

monitoring and addressing the negative secondary effects and adverse impacts will likely

burden the Citys law enforcement resources. The City Council further finds that due tonegative secondary effects and adverse impacts of facilities dispensing medical

marijuana, the establishment and operation of these facilities will negatively impact the

City.

N. The Zoning Regulations are consistent with the Live Oak 2030 General Plan in that theGeneral Plan, its goals, objectives and policies do not permit or contemplate theestablishment or operation of medical marijuana cooperatives, collectives or similar

facilities that engage in dispensing of marijuana for medicinal purposes.


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17.17.020 Applicability

A. Nothing in this Chapter is intended, nor shall it be construed, to burden any defense to

criminal prosecution under the CUA.

B. Nothing in this Chapter is intended, nor shall it be construed, to make legal anycultivation, sale or other use of medical marijuana that is otherwise prohibited under

California law.

C. Nothing in this Chapter is intended, nor shall it be construed, to preclude any landlord

from limiting or prohibiting medical marijuana cultivation by tenants.

D. Nothing in this Chapter is intended, nor shall it be construed, to exempt any activity

related to the cultivation of medical marijuana from any applicable electrical, plumbing,

land use or other building or land use standards or permitting requirements.

E. All cultivation and sale of medical marijuana within the City shall be subject to theprovisions of this Chapter.

F. Any medical marijuana cultivation that legally occurred prior to the effective date of this

ordinance does not have nonconforming rights provided in Chapter 17.38.

17.17.030Definitions

The following definitions apply to this chapter:

A. Fully enclosed and secure structure: A space within a building that complies with the

California Building Code, as adopted in the City of Live Oak, or, if exempt from permitrequirements, that has a complete roof enclosure supported by connecting walls extended

from the ground to the roof, a foundation, slab or equivalent base to which the floor is

secured by bolts or similar attachments, is secure against unauthorized entry, and isaccessible only through one or more lockable doors and accessible only to a primary

caregiver or a qualified patient. Walls and roofs must be constructed of solid materials

that cannot be easily broken through such as two inch by four inch or thicker studs

overlaid with 3/8s inch or thicker plywood or the equivalent. Plastic sheeting regardlessof gauge, or similar products do not satisfy this requirement. If indoor grow lights or air

filtration systems are used, they must comply with the California Building, Electrical and

Fire Codes as adopted in the City of Live Oak.

B. Medical marijuana: Marijuana used for medical purposes in accordance with California

Health and Safety Code section 11362.5.

C. Medical marijuana collective, cooperative or dispensary: A collective, cooperative,

dispensary, operator, establishment, provider, association or similar entity that cultivates,distributes, delivers or processes marijuana for medical purposes relating to a qualified

patient or primary caregiver, pursuant to the compassionate Use Act and Medical

Marijuana Program Act.


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D. Medical marijuana cultivation: The planting, growing, harvesting drying or processingof marijuana plants or any part thereof.

E. Primary Caregiver: A primary caregiver as defined in Health and Safety Code section

11362.7.

F. Qualified patient: A qualified patient as defined in Health and Safety Code section11362.7

17.17.040 Prohibition of Marijuana Cultivation

Marijuana cultivation by any person, including primary caregivers and qualified patients,

collectives, cooperatives or dispensaries is prohibited in all zone districts within the City of Live

Oak.

17.17.050 Separation of Section 17.17.040

If Section 17.17.040, or any subsection, sentence, clause, phrase or portion of Section 17.17.040

is held by a court of competent jurisdiction to be invalid or unconstitutional, that portion shall be

deemed a separate, distinct and independent provision and the following Section 17.17.060 shallapply in lieu of Section 17.17.040.

17.17.060 Cultivation in Residential Zone Districts for Personal Use

It is unlawful to cultivate medical marijuana in any residential zone district and in the UR Zone

District by reference, unless a zoning clearance as provided in Section 17.35.02 is first secured

and all of the following criteria are met::

A. Indoor cultivation: Medical marijuana may be cultivated only in a fully enclosed and

secure structure by a qualified patient or primary caregiver in a residential zone district ifa zoning clearance is first secured and all of the following criteria are met:

1. The applicant must reside on the property and be either a qualified patient or primary

caregiver.

2. The owner of the property, if other than the applicant, has consented in writing to the

cultivation of marijuana on the property.

3. If the marijuana cultivation occurs within a residential accessory building or a garage,

the location of the marijuana plants shall be at least 30 feet from any habitablestructure on any adjacent property.

4. The location of the plants shall be at least 600 feet from any school property. Thedistance shall be measured in a straight line, without regard to intervening structures,

from the closest property line of the property on which the marijuana is grown and the

school property. The existence of city, county or other political subdivision boundary


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shall be irrelevant for purposes of calculating and applying the distance requirements

of this paragraph.

5. The area where marijuana is grown shall not exceed 50 square feet of floor area,

regardless of how many qualified patients or primary caregivers live on the property.

6. The marijuana cultivation shall not be visible from any public or other private

property.

7. The cultivation of marijuana shall not take place in the kitchen, bathrooms or occupied

bedrooms of the residence.

8. The lighting used for cultivation shall not exceed 1,200 watts.

9. The use of flammable or combustible products, including but not limited to, propaneand butane, for cultivation and processing is prohibited.

C. All medical marijuana cultivated pursuant to this Section shall be for the personal useonly of a qualified patient residing on the property and may not be distributed to any

other person, collective, cooperative or dispensary.

D. The cultivation of medical marijuana shall not be an allowed home occupation.

E. Cultivation of marijuana in any other zone district other than those listed in this Section is

prohibited.

17.17.070 Medical Marijuana Collectives, Cooperatives and Dispensaries

Medical marijuana collectives, cooperatives and dispensaries are not permitted in any zonedistrict within the City of Live Oak.

17.17.080 Separation of Section 17.17.070


is held by a court of competent jurisdiction to be invalid or unconstitutional, that portion shall be

deemed a separate, distinct and independent provision and the following Section 17.17.090 shallapply in lieu of Section 17.17.070.

17.17.090 Medical Marijuana Dispensary

A. Purpose: To establish a comprehensive set of regulations applicable to the operation of

medical marijuana dispensaries within the City to insure such operation in a mannerconsistent with the overall health, welfare and safety of the City and its populace and in

compliance with the California Compassionate Use Act.

B. Allowed zone districts: Medical marijuana dispensaries are allowed in the Commercial-

General (C-G), CommercialMixed Use (C-MU), Employment (E) and Industrial (M)


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Zone Districts, subject to an approved use permit in compliance with Sec. 17.35.030, and

provided that all of the criteria provided below can be satisfied.

1. The site is not within 1,000 feet of any public or private school for grades

kindergarten through 12th

, any preschool or licensed child care facility.

2. The site is not within 500 feet of any residential use, residential area or residential

zone.

3. The site is not within 1,000 feet of any park, library or recreational area commonly

used by minor children.

4. The site is not within 250 feet of any adult business which sells or provides in any

manner drug paraphernalia.

C. Needed information: In addition to the information required by the City for any

potential use permit application or any potential business license application, persons orentities making such application(s) for the establishment of a medical marijuanadispensary shall also provide the following information with the application(s).

1. The application must be signed by the owner, lessee or agent who is applying for theuse permit or business license and the owner, lessee or agent shall specifically

identify the individuals who will be conducting the business of the medical marijuana

dispensary for the premises for which the permit or license is sought. In the case of a

lessee of a property applying for a permit pursuant to this chapter, the property ownershall acknowledge on the application consent to the application for a use permit for a

medical marijuana dispensary.

2. The application shall list the legal form of the applicant, e.g., individual, partnership,

corporation.

a. If the applicant is an individual, the application shall list his or her legal name, any

aliases and date of birth;

b. If the applicant is a partnership, the application shall list the full and completename of the partnership, the legal names and addresses of all partners, dates of

birth, all aliases used by all of the general partners and whether the partnership is

general or limited; and

c. If the applicant is a corporation, the applicant shall list the full and complete

corporate name, the date and status of its incorporation, evidence that thecorporation is in good standing, the legal names and dates of birth and aliases used

and the capacity of all officers, directors and principal stockholders (i.e., all

stockholders with 10 percent or more of all outstanding shares, and the name andaddresses of the registered officers for service of process.


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3. The application must list whether, preceding the date of the application, the applicant

or any individuals listed pursuant to subsection C.2. of this section has:

a. Other licenses and/or permits issued to and/or revoked from the applicant, in the

three years prior to the year of the permit application, such other license and/or

permit relating to similar business activities as in the permit application. If theapplication lists such other licenses and/or permits, the list shall include the type,

current status and issuing agency for each permit;

b. Been a partner in a partnership or an officer, director or principal stockholder of a

corporation which has had any other licenses and/or permits, relating to similarbusiness activities as in the permit application, issued to and/or revoked in the

three years prior to the year of the permit application. The type, current status, and

issuing agency for each previously issued or revoked licenses and/or permits shall

be listed on the application;

c. Been found guilty of or pleaded nolo contendere within the last four years to amisdemeanor or a felony classified by the state as a drug or drug related offense.

D. Restrictions on use: The following restrictions/regulations/conditions shall apply to the

operation of all medical marijuana dispensaries:

1. Hours of operation: Medical marijuana dispensaries shall be restricted to hours of

operation between 6 a.m. and 10 p.m.

2. Conviction of Crimes: No operator and/or employee of a medical marijuana

dispensary shall have been convicted of any felony under state or federal law,

convicted of a crime in any other jurisdiction the commission of which would be afelony under California law, nor convicted of any crime of moral turpitude. All

operators and/or employees of a medical marijuana dispensary shall be subject to

verification by the Sutter County Sheriffs Department of the absence of anydisqualifying conviction under this subsection prior to commencement of any such

operation and/or employment and annually thereafter, pursuant to reasonable

regulations pertaining thereto as established and promulgated by the Sheriff.

3. Security system: medical marijuana dispensaries shall be equipped with, and the

operators of such dispensaries shall maintain in working order at all times

burglary/robbery alarms in a manner compliant with the provisions of this code.

4. Security Guard: During all hours of operation there shall be, for each 1,000 square

feet of occupied building space, or portion thereof, at least one licensed, uniformedsecurity guard present and visible on the premises, i.e., one guard for zero to and

including 1,000 square feet, two guards for 1,001 to and including 2,000 square feet,

etc.

a. Such guards(s) shall be duly licensed by the State of California, Department of

Consumer Affairs in a manor compliant with all applicable state and local laws. In


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particular, all security officers shall comply with the provisions of California

Business and Professions Code Section 7582, et seq.

b. The presence and licensing of such guards shall be subject to proof thereof by

operator(s), employee(s) or security guard(s) of such dispensary at all required

times, upon reasonable demand by any state or federal police officer.

5. Use on premises: Use or consumption in any manner of marijuana is not permittedon premises of any medical marijuana dispensary at any time.

6. Drug paraphernalia: No medical marijuana dispensary may sell or display any drugparaphernalia on the premises at any time, including but not limited to cocaine and

sniffing kits, glass mirrors for cutting cocaine, snorting spoons and tubes, strainers to

sift cocaine, water pipes (bongs), everyday items with special removable tops that

have been converted to conceal narcotics and drugs, including but not limited to beercans, oil cans and plastic photograph film vials, roach clips (for holding marijuana

cigarettes), cigarette paper or filters.

7. Minors: Persons under the age of 18 years of age are not permitted to be on the

premises of any medical marijuana dispensary at any time.

8. Alcohol: No alcoholic beverage shall be sold, conveyed or consumed on the premises

of any medical marijuana dispensary at any time.

9. Under the influence: No person shall be present on the premises of a medicalmarijuana dispensary while intoxicated and/or under the influence of alcohol or any

controlled substance at any time, as defined in California Health and Safety Code

Section 11007.

10. Unobstructed view: The interior of the dispensary shall be configured such that there

is an unobstructed view, by use of the naked eye, and unaided by video, closed circuitcameras or any other means, of every public area of the premises by a manager. No

public area shall be obscured by any door, curtain wall, two-way mirror or other

device. A manager shall be in the public portion of the dispensary at all times it is in

operation or open to the public in order to enforce all rules and regulations.

11. Exterior painting: Buildings and structures shall not be painted or surfaced with any

design that would simulate a sign or advertising message and cannot be established ormaintained such that the exterior appearance of the structure is substantially

inconsistent with the external appearance of abutting properties.

12. Displays: Advertisements, displays of merchandise, signs or any other exhibit

depicting activities of the dispensary placed within the interior of buildings of

premises shall be arranged or screened to prevent public viewing from outside suchbuilding or premises.


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13. Loudspeakers: Outdoor loudspeakers or other outdoor sound equipment advertising

or directing attention to a dispensary, including but not limited to prerecorded or livemusic or sounds, are prohibited.

14. Graffiti: Upon order of the Sheriffs Department, graffiti appearing on any exterior

surface of a building or premises of a dispensary, which graffiti is in public view,shall be removed and that surface shall be restored within 48 hours of notification to

the owner or person in charge of the premises or as may be specified in otherordinances of the City regulating graffiti removal.

15. Security cameras: The operator of the medical marijuana dispensary shall beresponsible for insuring that a video surveillance system on the premises complies

with the following standards:

a. Visually records and monitors all parking lot areas, rear alley areas immediatelyadjacent to the dispensary, the main building entrance(s) and exit(s), and any and

all transaction areas for the dispensing of medical marijuana. The operator of thedispensary or his/her designated representative shall instruct the company orindividual(s) installing the surveillance equipment at the dispensary to position

cameras to maximize the quality of facial and body images and avoid

backlighting and physical obstructions. The company or individual(s) installingthe surveillance equipment for any medical marijuana dispensary shall be

responsible for reasonable compliance with those instructions in installing such

equipment at the dispensary.

b. Cameras shall have a minimum resolution of 500 lines per inch and a minimum

light factor requirement of 0.7 LUX. Light sensitive lenses or the installation of

additional lighting may be required to increase picture clarity and brightness.Cameras shall be calibrated and focused to maximize the quality of the recorded

image.

c. The recorded device shall be defined as a high density recorder by manufacturer

specifications. The device shall be a time-lapse recorder that displays a current

date and time stamp on the videotape. Systems required to have more than one

camera shall include a quad or multiplexer video display splitter. Therecording equipment and all recorded video tapes kept in compliance with this

section shall be secured in a locked area in which access is limited to the

dispensary operator, the permit holder, and/or his/her designated representative(s).

d. A display monitor with a minimum screen size of 12 inches shall be connected to

the video surveillance system at all times. If a quad video display splitter isutilized, the display monitor shall have a minimum screen size of 15 inches.

e. Video surveillance systems shall be maintained in good working order at alltimes. The owner of the dispensary shall instruct each employee, volunteer,

agent, servant or other individual overseeing the functioning of the video system,

to immediately report any malfunctioning of or technical problems whatsoever


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with surveillance equipment. Every three months, the operator of the dispensary

or his/her designated representative shall inspect all cameras and video recordersto ensure proper operation and shall perform the following functions: the camera

lenses shall be cleaned and the date and time stamp shall be calibrated to reflect

true information; all wires connected to the camera and video recording device

shall be inspected for wear and tear; and, a test recording shall be done to verifyimage quality and the date and time stamp. The operator of the dispensary or

his/her designated representative shall keep a video surveillance maintenance logdocumenting all inspections and repairs to the system. Any technical problems or

inoperable equipment shall be repaired as soon as possible, not to exceed 15 days

from the discovery of the problem. The video surveillance system andmaintenance log are subject to periodic inspection by the Sheriffs Department, in

order to ensure compliance with this section.

f. The video surveillance system and recording device shall be in continuousoperation from one full hour before to one full hour after the dispensary is open to

the public, or any portion thereof. Videotapes of daily operations shall be kept aminimum of 30 days prior to reuse or destruction of such videotapes, and shall beprovided to the Sheriffs Department as may be authorized by state and federal

law. Such videotapes shall be clearly marked with the date the videotape was

most recently recorded, and, in the event there are multiple tapes of the same date,each videotape shall be clearly marked in the sequential numerical order that it

was so recorded.

16. Lighting

a. Interior: The premises within which the dispensary is operated shall be equipped

with and, at all times during which the dispensary is open to the public or anyportion thereof, shall remain illuminated with overhead lighting fixtures of

sufficient intensity to illuminate every place to which members of the public or

portions thereof are permitted access with an illumination of not less than twofoot-candles as measured at the floor level.

b. Exterior: The exterior of the premise upon which the dispensary is operated shall

be equipped with and, at all times between sunset and sunrise, shall remainilluminated with fixtures of sufficient intensity and number to illuminate every

portion of the property with an illumination level of not less than one-foot candle

as measured at the ground level, including, but not limited to, landscape areas,parking lots, driveways, walkways, entry areas and refuse storage areas.

17. Change of ownership: If a dispensary operating with a permit pursuant to thischapter changes ownership, the current owner or operator shall notify the Sheriffs

Department of the new owners name and address within 10 days of the effective date

of such change of ownership.

18. Manager on premises: All dispensaries shall have a responsible person who shall be

at least 21 years of age and shall be on the premises to act as manager at all times


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during which the dispensary is open to the public or any portion thereof. The

individual designated as the on-site manager shall be registered with the SheriffsDepartment by the owner to receive all complaints and be responsible for all

violations taking place on the premises.

19. Records and inspection: All dispensaries shall maintain sufficiently detailed writtenrecords regarding their verification that medical marijuana is dispensed only to

qualified patients and primary caregivers under the California Compassionate UseAct, Health and Safety Code Section 11362.5 et. seq. These written records are

subject to periodic inspection by the Sheriffs Department, in order to ensure

compliance with this section, as authorized by state and federal law.

20. Other conditions: The Planning Commission or City Council may add any

conditions to the granting of a permit pursuant to this chapter, should the particular

facts and/or circumstances of a propose use so justify.

E. Operator Responsible: The operator(s) of any medical marijuana dispensary isresponsible for insuring at all times that employees, volunteers, agents or any otherindividuals having any charge over the functioning of the dispensary are acting in

compliance with the provisions of this section.

F. Other regulations: The provisions of this section do not waive or modify any other

provisions of this code with which medical marijuana dispensaries are required to

comply. Nothing in this section is intended to authorize, legalize or permit the

establishment, operation or maintenance of any facility, building or use which violatesany City of Live Oak ordinance or California statute regarding public nuisances, medical

marijuana or any federal regulations or statutes relating to the use of controlled

substances.

G. Measure of Distance: All required minimum distances set forth in Subsec. 17.17.090.B

shall be measured from the nearest property line of one designated location to the nearestproperty line of the other designated location along a straight line extended between the

two points without regard to intervening structures.

H. Prohibited in other zone districts: Medical marijuana dispensaries are prohibited in anyother zone district other than those listed in this Section.

17.17.100Nuisance and Civil Penalties

Any cultivation, processing or distribution of medical marijuana which takes place in violation of

any provision of this Section is unlawful, and is hereby declared a public nuisance and is subjectto all enforcement actions pursuant to Chapter 14.08 of the Live Oak Municipal Code.

SECTION 4. Separation of Section 17.17.040


is held by a court of competent jurisdiction to be invalid or unconstitutional, Table 17.02.020 of


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the Zoning Regulations is revised to add to the list of Residential Accessory Uses to read as

follows:

Medical marijuana cultivation ZC ZC ZC ZC Chapter 17.17

SECTION 5. Separation of Section 17.17.070

If Section 17.17.070, or any subsection, sentence, clause, phrase or portion of Section 17.17.070is held by a court of competent jurisdiction to be invalid or unconstitutional, Table 17.03.020 of

the Zoning Regulations is revised to modify thelist of Commercial Uses to read as follows:

Medical marijuana dispensary UP UP Chapter 17.17

SECTION 6. Chapter 17.50 of the Zoning Regulations: the definition of Medical marijuana

dispensary is hereby deleted.

SECTION 7: This Ordinance, following its adoption, shall be published as provided for by lawand by its terms herein, shall become effective 30 days after its adoption and shall thereafterremain in full force and effect unless otherwise changed by an appropriate amending ordinance.

Introduced and the first reading waived at a regular meeting of the City Council of the City of

Live Oak on the 7th

day of December, and passed and adopted after waiving the second readingat a regular meeting held on the 21st day of December, 2011 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

APPROVED:

____________________________________

Gary A. Baland, Mayor

ATTEST:

___________________________________Melissa Dempsey, City Clerk


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MEMO

TO: CITY OF LIVE OAK - CITY COUNCIL

FROM: CITY ATTORNEY

DATE: NOVEMBER 22, 2011

RE: MEDICAL MARIJUANA PROGRAM LIMITATIONS REGARDING

POSSESSION OF MARIJUANA

At the Live Oak Planning Commission meeting held November 17, 2011, the Commission

proposed amendments to the Marijuana Cultivation Ordinance. One of the Planning Commissioners

stated that he was intimately familiar with the Medical Marijuana Program (MMP found at Healthand Safety Code Sections 11362.7 et seq.) He asserted that the MMP placed a limit on the

possession of no more than six mature or twelve immature marijuana plants. (Health and Safety

Code Section 11362.77(a), which is part of the MMP, prescribes these specific amounts of marijuana

that a qualified patient may possess or cultivate).

Based in part upon the assumed validity of these amount of marijuana limits, the Planning

Commission recommended changes to the proposed Marijuana Cultivation Ordinance.

Unfortunately the California Supreme Court has held that the quantity limitations of the MMP are

in conflict with the Compassionate Use Act (Proposition 215) (People v. Kelly (2010) 47 Cal 4 th

1008). The California Supreme Court agreed with the Lower Court of Appeal that ...Section

11362.77 [of the MMP which places a limit on how much marijuana a person falling under theCompassionate Use Act may possess] unconstitutionally amends the CUA... (Id. at 1029-1030)

The Supreme Court went on to explain:

Under the CUA as adopted by Proposition 215, these individuals are not subject to

any specific limits and do not require a physicians recommendation in order to

exceed any such limits; instead they may possess an amount of medical marijuana

reasonably necessary for their, or their charges, personal medical needs. By

extending the reach of section 11362.77's quantity limitations beyond those persons

who voluntarily register under the MMP and obtain an identification card that

provides protection against arrestand by additionally restricting the rights of all

qualified patients and primary caregivers who fall under the CUA-the challenged

language of section 11362.77 effectuates a change in the CUA that takes away from

rights granted by the initiative statute... In that respect, Section 11362.77 improperly

amends the CUA in violation of the California Constitution. (Idat 1043)

Accordingly, one of the laws upon which the Planning Commission based its analysis has

been held unconstitutional by the California Supreme Court.


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Filed 11/9/11

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

CITY OF RIVERSIDE,

Plaintiff and Respondent,

v.

INLAND EMPIRE PATIENTS HEALTH

AND WELLNESS CENTER, INC. et al.,

Defendants and Appellants.

E052400

(Super.Ct.No. RIC10009872)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

Law Office of J. David Nick and J. David Nick for Defendants and Appellants.

Gregory P. Priamos, City Attorney, Neil Okazaki, Deputy City Attorney; Best

Best & Krieger, Jeffrey V. Dunn and Lee Ann Meyer for Plaintiff and Respondent.

I

INTRODUCTION

Defendants and appellants Inland Empire Patients Health and Wellness Center


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Inc., et al.1 (Inland Empire Center) appeal from a judgment entered in favor of plaintiff

and respondent, the City of Riverside (Riverside), after the trial court found that Inland

Empire Centers medical marijuana dispensary (MMD)2 constituted a public nuisance per

se and issued a preliminary injunction enjoining Inland Empire Center from operating its

MMD in Riverside.

Inland Empire Center contends Riversides ordinance banning MMDs throughout

Riverside is preempted by state law; specifically, the Compassionate Use Act of 1996

(CUA) (Health & Saf. Code, 11362.5)3 and the Medical Marijuana Program (MMP)

( 11362.7-11362.83). We conclude Riversides ordinance banning MMDs is not

preempted by state law. We therefore affirm the preliminary injunction and judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

Inland Empire Center is a nonprofit mutual benefit corporation established for the

purpose of facilitating an MMD located in Riverside. Inland Empire Centers MMD is a

nonprofit collaborative association of patient members, who collectively cultivate

medical marijuana and redistribute it to each other. Inland Empire Center has operated

1 Defendants and appellants also include William Joseph Sump II, Lanny David

Swerdlow, Angel City West, Inc., Meneleo Carlos, and Filomena Carlos.

2 When referring to MMDs, we use the term MMD broadly to include

cooperatives, collectives, and dispensaries, despite any technical differences that may

exist between them.

3 Unless otherwise noted, all statutory references are to the Health and Safety

Code.


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its MMD in Riverside since 2009.

Defendant Lanny Swerdlow (Swerdlow) is a registered nurse and manager of an

adjacent, separate medical clinic, THCF Medical Clinic, unassociated with the MMD.

Defendant William Joseph Sump II is an Inland Empire Center board member and

general manager of Inland Empire Centers Riverside MMD. Defendants Meneleo

Carlos and Filomena Carlos (the Carloses) own the property upon which the MMD is

located and lease the property to Swerdlow. Defendant Angel City West, Inc. (Angel)

provides management services for the property.

In January 2009, Riversides Community Development Department planning

division sent Swerdlow a letter stating that Riversides zoning code prohibits MMDs in

Riverside. In May 2010, Riverside filed a complaint against Angel, Swerdlow, Sump,4

the Carloses, East West Bancorp, Inc.,5 and THCF Health and Wellness Center,6 for

injunctive relief to abate public nuisance. The complaint alleges Inland Empire Centers

MMD constitutes a public nuisance, in violation of Riversides zoning code, Riverside

Municipal Code (RMC) section 6.15.020(Q). Riverside notified Swerdlow of the

violation. Nevertheless, Swerdlow continues to operate the MMD.

Riversides complaint includes two causes of action, both alleging public

nuisance, and prays for injunctive relief enjoining Inland Empire Center from operating

4 Sump is added as Doe 1 in an amendment to the complaint.

5 East West Bancorp, Inc. is not a party to this appeal.

6 Riverside added Inland Empire Center by amendment to the complaint as Doe 2.


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its MMD in Riverside. Riverside alleges in the complaint that Inland Empire Center is

located in a commercial zone. Under Riversides zoning code, MMDs are prohibited.

(RMC, 19.150.020, 19.910.140.) Riversides zoning code further states that any use

which is prohibited by state and/or federal law is strictly prohibited in Riverside. (RMC,

19.150.020.) Any violation of Riversides municipal code is deemed a public nuisance

under RMC sections 1.01.110 and 6.15.020(Q). Inland Empire Centers MMD violates

Riversides zoning code and is therefore a public nuisance subject to abatement.

Riverside filed a motion for a preliminary injunction, seeking to close Inland

Empire Centers MMD in Riverside. Riverside Police Detective Darren Woolley

(Woolley) concluded in his supporting declaration that the medical clinic, THCF

Medical Clinic, where Swerdlow worked as a nurse, was connected to Inland Empire

Centers MMD and referred patients to the MMD. Riverside requested the trial court to

take judicial notice of various documents, including a report entitled, California Police

Chiefs Associations Task Force On Marijuana Dispensaries and a report by the

Riverside County District Attorneys Office, entitled, Medical Marijuana: History and

Current Complications. Inland Empire Center objected to judicial notice of these

documents. The court did not rule on the judicial notice request.

In support of Inland Empire Centers opposition to Riversides motion for a

preliminary injunction, Swerdlow states in his declaration that he managed the medical

clinic Woolley claimed was associated with the MMP. According to Swerdlow, the

medical clinic is not connected with the MMD. Woolley erroneously referred to Inland


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Empire Centers MMD as the THCF Medical Clinic, which is at a different location

nearby.

Inland Empire Centers general manager, Sump, also provided a declaration

supporting Inland Empire Centers opposition, stating that Inland Empire Center had

advised Riverside that it would be operating an MMD in Riverside. Sump further stated

that Inland Empire Center had been lawfully operating its MMD and it did not constitute

a nuisance to the surrounding community.

On November 24, 2010, the trial court heard Riversides motion for a preliminary

injunction and granted the motion, concluding City of Claremont v. Kruse (2009) 177

Cal.App.4th 1153 (Kruse)controlled and therefore Riverside could use zoning

regulations to prohibit MMDs, especially given the conflict between state and federal

law. The trial court added it was not finding that federal law preempted state law in this

instance. The court acknowledged there was case law holding that there was no federal

law preemption. The trial court entered a written order enjoining Inland Empire Center

from operating its MMD on the Carloses property.

III

STANDARD OF REVIEW

In this appeal, Inland Empire Center challenges the trial courts order granting

Riversides request for a preliminary injunction. We review an order granting a

preliminary injunction, under an abuse of discretion standard, to determine whether the

trial court abused its discretion in evaluating the two interrelated factors pertinent to

issuance of a preliminary injunction(1) the likelihood that the plaintiffs will prevail on


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the merits at trial, and (2) the interim harm that the plaintiffs are likely to sustain if the

injunction were denied as compared to the harm the defendant is likely to suffer if the

preliminary injunction were issued. [Citation.] Abuse of discretion as to either factor

warrants reversal. [Citation.] (Alliant Ins. Services, Inc. v. Gaddy (2008) 159

Cal.App.4th 1292, 1299-1300.) [W]e interpret the facts in the light most favorable to

the prevailing party and indulge in all reasonable inferences in support of the trial courts

order. [Citations.] [Citations.] (Id. at p. 1300.)

Here, the validity of the injunction and likelihood Inland Empire Center will

prevail at trial turn on a question of law: whether Riversides zoning code banning

MMDs in Riverside is valid and enforceable. The underlying facts demonstrating a

violation of the zoning code are undisputed. Inland Empire Center was operating an

MMD on Riverside property, owned, leased, used and/or managed by the Inland Empire

Center defendants. Inland Empire Center argues the zoning code prohibiting MMDs is

invalid and unenforceable because it is preempted by state law (the CUA and MMP).

Whether state law preempts a local ordinance is a question of law that is subject to de

novo review. [Citation.] [Citation.] The party claiming that general state law preempts

a local ordinance has the burden of demonstrating preemption. [Citation.] [Citation.]

(Kruse, supra, 177 Cal.App.4th atp. 1168.)

Since the material facts relevant to preemption are undisputed, this is a question of

law which we review de novo. (Kruse, supra, 177 Cal.App.4th atp. 1168.) Inland

Empire Center bears the burden of demonstrating preemption. We conclude Inland

Empire Center has not met this burden and therefore the trial court did not abuse its


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discretion in granting a preliminary injunction enjoining Inland Empire Center from

operating its MMD in Riverside.

IV

PREEMPTION PRINCIPLES

The general principles governing state statutory preemption of local land use

regulation are well settled. (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38

Cal.4th 1139, 1150 (Big Creek Lumber); Kruse, supra, 177 Cal.App.4th at p. 1168.)

Under article XI, section 7 of the California Constitution, [a] county or city may make

and enforce within its limits all local, police, sanitary, and other ordinances and

regulations not in conflict with general laws. If otherwise valid local legislation

conflicts with state law, it is preempted by such law and is void. (Sherwin-Williams

Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897 (Sherwin-Williams), quoting Candid

Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885.)

Three types of conflict give rise to state law preemption: a local law (1) duplicates state

law, (2) contradicts state law, or (3) enters an area fully occupied by state law, either

expressly or by legislative implication. (Kruse, atp. 1168;Action Apartment Assn., Inc.

v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242.)

Where, as here, there is no clear indication of preemptive intent from the

Legislature, we presume that Riversides zoning regulations, in an area over which local

government traditionally has exercised control, are not preempted by state law. (Kruse,

supra,177 Cal.App.4th at p. 1169.) [W]hen local government regulates in an area over

which it traditionally exercised control, such as the location of particular land uses,


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California courts will presume, absent a clear indication of preemptive intent from the

Legislature, that such regulation is notpreempted by state statute. [Citation.] (Kruse,

supra, 177 Cal.App.4th at p. 1169, quotingBig Creek Lumber, supra, 38 Cal.4th at p.

1149.) This court thus must presume, absent a clear indication the Legislature intended

to regulate the location of MMDs, that such regulation by local government is not

preempted by state law.

V

CALIFORNIA MEDICAL MARIJUANA LAWS

In determining whether Riversides zoning code banning MMDs is preempted by

state law, we first consider the scope and purpose of Californias medical marijuana laws,

specifically the CUA and MMP.

In 1996, California voters approved a ballot initiative, Proposition 215, referred to

as the Compassionate Use Act of 1996. ( 11362.5.) The CUA 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 persons health would benefit from the use of

marijuana . . . . (Id., subd. (b)(1)(A).) The CUA is also intended to 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. (Id.,

subd. (b)(1)(B).) In addition, the CUA is intended to 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. (Id., subd. (b)(1)(C).) The CUA


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provides a limited defense from prosecution for cultivation and possession of marijuana.

The CUA is narrow in scope. (Ross v. RagingWire Telecommunications, Inc. (2008) 42

Cal.4th 920, 929-930; Kruse, supra, 177 Cal.App.4that p. 1170.) It does not create a

statutory or constitutional right to obtain marijuana, or allow the sale or nonprofit

distribution of marijuana by MMDs. (Ross at p. 926, Kruse, at pp. 1170-1171; People v.

Urziceanu (2005) 132 Cal.App.4th 747, 773-774 (Urziceanu).)

In 2003, the Legislature added the MMP. ( 11362.7-11362.83.) The purposes

of the MMP include [promoting] uniform and consistent application of the [CUA]

among the counties within the state and [enhancing] the access of patients and

caregivers to medical marijuana through collective, cooperative cultivation projects.

[Citation.] (County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 864 (Hill).) The

MMP includes guidelines for the implementation of the CUA. 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 [section 11570,] the drug den abatement law. ( 11362.765,

11362.775.) (Ibid., fn. omitted.)

With regard to drug den abatement, the MMP provides a new affirmative

defense to criminal liability for qualified patients, caregivers, and holders of valid

identification cards who collectively or cooperatively cultivate marijuana. [Citation.]

(Kruse, supra, 177 Cal.App.4th at p. 1171.) For instance, section 11362.775 of the MMP

provides: Qualified patients, persons with valid identification cards, and the designated

primary caregivers of qualified patients and persons with identification cards, who


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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 Section 11357, 11358, 11359, 11360, 11366, 11366.5, or

11570.7 In addition, section 11362.765 provides limited immunity for transporting,

processing, administering, and cultivating medical marijuana.

VI

APPLICABLE RIVERSIDE MUNICIPAL CODE PROVISIONS

Chapter 19.150 of the RMC enumerates permissible and impermissible land uses.

RMC section 19.150.020 states that table A of section 19.150.020 identifies those uses

that are specifically prohibited. Uses not listed in Tables are prohibited unless,- the

Zoning Administrator, pursuant to Chapter 19.060 (Interpretation of Code), determines

that the use is similar and no more detrimental than a listed permitted or conditional use.

Any use which is prohibited by state and/or federal law is also strictly prohibited.

(RMC, 19.150.020.) Table A states that MMDs constitute a Prohibited Use

throughout Riverside. (RMC, 19.150.020.) Riversides zoning code further states that

persons vested with enforcement authority . . . shall have the power to . . . use whatever

judicial and administrative remedies are available under the Riverside Municipal Code

to enforce the zoning code. (RMC, 19.070.020.)

7 These penal statutes criminalize possession of marijuana ( 11357); cultivation

of marijuana ( 11358); possession of marijuana for sale ( 11359); transportation of

marijuana ( 11360); maintaining a place for the sale, giving away, or use of marijuana

( 11366); making available premises for the manufacture, storage, or distribution of

controlled substances ( 11366.5); and abatement of nuisance created by premises used

for manufacture, storage, or distribution of controlled substances ( 11570).


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RMC further provides that any condition caused or permitted to exist in violation

of any of the provisions of this Code, or the provisions of any code adopted by reference

by this Code, shall be deemed a public nuisance and may be abated by the City, . . .

(RMC, 1.01.110(E).) RMC section 6.15.020, enumerating acts constituting nuisances,

states: It is unlawful and is hereby declared a nuisance for any person owning, leasing,

occupying or having charge or possession of any property . . . in the City to maintain the

property in such a manner that any of the following conditions are present: [] . . . []

Q. Any other violation of this code pursuant to section 1.01.110E. This encompasses a

violation of Riversides zoning code, such as the provision banning MMDs. Under the

RMC, Inland Empire Centers MMD is a zoning violation, constituting a public nuisance

which is amenable to abatement and injunctive relief by civil action.

VII

PREEMPTION

Generally a municipal zoning ordinance is presumed to be valid. (Stubblefield

Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 713.) Inland

Empire Center argues that, while cities and counties may zone where MMDs may be

located,Riverside cannot lawfully ban all MMDs from the city. This court must

presume Riversides zoning ordinance banning MMDs in Riverside is valid unless

Inland Empire Center demonstrates the ordinance is unlawful based on state law

preemption of Riversides zoning ordinance.


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A. Federal Preemption of State Law

Inland Empire Center argues that under Qualified Patients Assoc. v. City of

Anaheim (2010) 187 Cal.App.4th 734 (Qualified), local municipalities cannot enact a

total ban of MMDs based solely on federal law preemption. The court in Qualified

stated: The city may not justify its ordinance solely under federal law [citations], nor in

doing so invoke federal preemption of state law that may invalidate the citys ordinance.

The citys obstacle preemption argument therefore fails. (Qualified, at p. 763, fn.

omitted.) In other words, the city cannot rely on the proposition that federal law, which

criminalizes possession of marijuana, preempts state law allowing limited use of medical

marijuana and MMDs.

We agree that under Qualifiedfederal preemption of state medical marijuana law

is not a valid basis for upholding Riversides zoning ordinance banning MMDs. The

key issue in determining whether Riversides zoning ordinance is legally enforceable is

whether state medical marijuana statutes, such as the CUA and MMP, preempt

Riversides zoning ordinance banning MMDs. If the local ordinance is not preempted

by state law, the ordinance is valid and enforceable.

B. State Law Preemption of Local Law

We reject the proposition that local governments, such as Riverside, are preempted

by the CUA and MMP from enacting zoning ordinances banning MMDs. Riversides

zoning ordinance does not duplicate, contradict, or occupy the field of state law

legalizing medical marijuana and MMDs.


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1. Duplicative and Contradictory Rules

A duplicative rule is one that mimics a state law or is coextensive with state

law. (OConnell v. City of Stockton (2007) 41 Cal.4th 1061, 1067;Habitat Trust for

Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1327 [Fourth

Dist, Div. Two].) A contradictory rule is one that is inimical to or cannot be reconciled

with a state law. (Habitat Trust for Wildlife, at p. 1327; O'Connell, at p. 1068.)

Riversides zoning ordinance regulating MMDs does not mimic or duplicate

state law and can be reconciled with the CUA and MMP. Riversides zoning ordinance

banning MMDs differs in scope and substance from the CUA and MMP. (Sherwin-

Williams, supra, 4 Cal.4th at p. 902.) The CUA is narrow in scope. (Kruse, supra, 177

Cal.App.4that p. 1170.) It provides medical marijuana users and care providers with

limited criminal immunity for use, cultivation, and possession of medical marijuana. The

CUA does not create a constitutional right to obtain marijuana, or allow the sale or

nonprofit distribution of marijuana by medical marijuana cooperatives. (Id. at pp. 1170-

1171.)

The MMP merely implements the CUA and also provides immunity for those

involved in lawful MMDs. The CUA and MMP do not provide individuals with

inalienable rights to establish, operate, or use MMDs. The state statutes do not preclude

local governments from regulating MMDs through zoning ordinances. The

establishment and operation of MMDs is thus subject to local zoning and business

licensing laws. There is nothing stated to the contrary in the CUA or MMP. The CUA

and MMP do not expressly mandate that MMDs shall be permitted within every city and


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county, nor do the CUA and MMP prohibit cities and counties from banning MMDs.

The operative provisions of the CUA and MMP do not speak to local zoning laws.

(Kruse, supra, 177 Cal.App.4that pp. 1172-1173, 1175.) Although the MMP provides

limited immunity to those using and operating lawful MMDs, the MMP does not restrict

or usurp in any way the police power of local governments to enact zoning and land use

regulations prohibiting MMDs.

Inland Empire Center argues Riversides ordinance banning MMDs is invalid

because it is inconsistent with the MMP, which provides limited immunity for operating

and using MMDs. For instance, section 11362.775 of the MMP provides immunity for a

nuisance claim arising from a violation of section 11570, which encompasses operating

an MMD. Section 11570 provides civil nuisance liability: Every building or place used

for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving

away any controlled substance . . . and every building or place wherein or upon which

those acts take place, is a nuisance which shall be enjoined, abated, and prevented, and

for which damages may be recovered, whether it is a public or private nuisance. (Italics

added.) Section 11362.775 of the MMP provides: 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 Section 11357,

11358, 11359, 11360, 11366, 11366.5, or 11570. (Italics added.)


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As Inland Empire Center notes, section 11570, unlike the other statutes listed in

section 11362.775, does not provide criminal sanctions. Nevertheless, Inland Empire

Center argues that under Qualified, supra, 187 Cal.App.4th at pages 753-754,section

11362.775 provides immunity from a nuisance claim for operating an MMD in violation

of section 11570. The court in Qualifiedstates: Sections 11362.765 and 11362.775 of

the MMPA immunize operators of medical marijuana dispensaries . . . from prosecution

under state nuisance abatement law ( 11570) solely on the basis that they use any

building or place . . . for the purpose of unlawfully selling, serving, storing, keeping,

manufacturing, or giving away any controlled substance. . . .

Inland Empire Center claims that section 11362.775 demonstrates the

Legislatures intent to bar cities from declaring MMDs a nuisance and banning them.

Inland Empire Center argues that, by enacting section 11362.775, which refers to section

11570, the Legislature expressly prohibits cities from bringing civil nuisance claims

under Civil Code section 3482 for operating MMDs. (Urziceanu, supra, 132

Cal.App.4th at p. 785.) Civil Code section 3482 provides that Nothing which is done or

maintained under the express authority of a statute can be deemed a nuisance.

Inland Empire Center asserts that, because section 11362.775 exempts an operator

of an MMD from liability for nuisance, Riversides zoning ordinance, banning MMDs

and declaring them a nuisance, is preempted by state law. We disagree. Here, Inland

Empire Center is prosecuted for a zoning violation, and not solely on the basis Inland

Empire Center used the premises for operating an MMD. Although section 11362.775

allows lawful MMDs, a municipality can limit or prohibit MMDs through zoning


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regulations and prosecute such violations by bringing a nuisance action and seeking

injunctive relief. Protection under Civil Code section 3482 is applied very narrowly, only

where the alleged nuisance is exactly what was lawfully authorized. (Jacobs Farm/Del

Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1532, italics

added.) Inland Empire Centers reliance on Civil Code section 3482 is misplaced since,

here, the Legislature did not expressly prohibit cities from enacting zoning regulations

banning MMDs or from bringing a nuisance action enforcing such ordinances.

Therefore Riversides zoning ordinance banning MMDs does not duplicate or contradict

the CUA and MMP statutes.

2. Expressly Occupying the Field of State Law

Local legislation enters an area that is fully occupied by general law when the

Legislature has expressly manifested its intent to fully occupy the area. (Kruse, supra,

177 Cal.App.4th at p. 1169.) Here, the CUA and MMP do not expressly state an intent to

fully occupy the area of regulating, licensing, and zoning MMDs, to the exclusion of all

local law.

In Kruse, supra, 177 Cal.App.4th 1153, the court stated that the CUA did not

expressly preempt the citys zoning ordinance which temporarily prohibited MMDs:

The CUAdoes not expressly preempt the Citys actions in this case. The operative

provisions of the CUA do not address zoning or business licensing decisions. The

statutes operative provisions protect physicians from being punished, or denied any

right or privilege, for having recommended marijuana to a patient for medical purposes

( 11362.5, subd. (c)), and shield patients and their qualified caregivers from criminal


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liability for possession and cultivation of marijuana for the patients personal medical

purposes if approved by a physician ( 11362.5, subd. (d)). The plain language of the

statute does not prohibit the City from enforcing zoning and business licensing

requirements applicable to defendants proposed use. (Kruse, supra, 177 Cal.App.4th at

pp. 1172-1173.)

The Kruse court further explained that the citys temporary moratorium on

MMDs was permissible because: The CUA does not authorize the operation of a

medical marijuana dispensary [citations], nor does it prohibit local governments from

regulating such dispensaries. Rather, the CUA expressly states that it does not supersede

laws that protect individual and public safety: Nothing in this section shall be construed

to supersede legislation prohibiting persons from engaging in conduct that endangers

others . . . . ( 1362.5, subd. (b)(2).) The CUA, by its terms, accordingly did not

supersede the Citys moratorium on medical marijuana dispensaries, enacted as an

urgency measure for the immediate preservation of the public health, safety, and

welfare. (Kruse, supra, 177 Cal.App.4that p. 1173.)

The Krusecourt also concluded the citys zoning ordinance was not expressly

preempted by the MMP. The Kruse court noted, The operative provisions of the MMP,

like those in the CUA, provide limited criminal immunities under a narrow set of

circumstances. (Kruse, supra,177 Cal.App.4th at p. 1175.) Furthermore, [m]edical

marijuana dispensaries are not mentioned in the text or history of the MMP. The MMP

does not address the licensing or location of medical marijuana dispensaries, nor does it

prohibit local governments from regulating such dispensaries. Rather, like the CUA, the


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MMP expressly allows local regulation. . . . Nothing in the text or history of the MMP

precludes the Citys adoption of a temporary moratorium on issuing permits and licenses

to medical marijuana dispensaries, or the Citys enforcement of licensing and zoning

requirements applicable to such dispensaries. (Ibid.) As in Kruse, the CUA and MMP

do not expressly preempt Riversides zoning ordinance regulating MMDs, including

banning them.

3. Impliedly Occupying the Field of State Law

Riversides zoning ordinance banning MMDs is not impliedly preempted by state

law since Riversides ordinance does not enter an area of law fully occupied by the CUA

and MMP by legislative implication. (Kruse, supra, 177 Cal.App.4th p. 1168.)

[L]ocal legislation enters an area that is fully occupied by general law when the

Legislature . . . has impliedly done so in light of one of the following indicia of intent:

(1) the subject matter has been so fully and completely covered by general law as to

clearly indicate that it has become exclusively a matter of state concern; (2) the subject

matter has been partially covered by general law couched in such terms as to indicate

clearly that a paramount state concern will not tolerate further or additional local action;

or (3) the subject matter has been partially covered by general law, and the subject is of

such a nature that the adverse effect of a local ordinance on the transient citizens of the

state outweighs the possible benefit to the locality [citations]. [Citation.] [Citation.]

(Id. at p. 1169.)

This court rarely finds implied preemption: We are reluctant to invoke the

doctrine of implied preemption. Since preemption depends upon legislative intent, such


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a situation necessarily begs the question of why, if preemption was legislatively intended,

the Legislature did not simply say so, as the Legislature has done many times in many

circumstances. [Citation.] In determining whether the Legislature has preempted by

implication to the exclusion of local regulation we must look to the whole purpose and

scope of the legislative scheme. [Citations.] Indeed, preemption will not be implied

where local legislation serves local purposes, and the general state law appears to be in

conflict but actually serves different, statewide purposes. [Citation.] There is a

presumption against preemption. (Garcia v. Four Points Sheraton LAX(2010) 188

Cal.App.4th 364, 374.)

(a) Complete Coverage

The subject matter of the Riverside zoning ordinance banning MMDs has not

been so fully and completely covered by general law as to clearly indicate that it has

become exclusively a matter of state concern[.] (Kruse, supra, 177 Cal.App.4th at p.

1169.) As stated in Kruse, neither the CUA nor MMP addresses, much less completely

covers, the areas of land use, zoning and business licensing. Neither statute imposes

comprehensive regulation demonstrating that the availability of medical marijuana is a

matter of statewide concern, thereby preempting local zoning and business licensing

laws. (Id. at p. 1175.) The Kruse court further noted that the CUA does not create a

broad right to use marijuana without hindrance or inconvenience [citation], or to

dispense marijuana without regard to local zoning and business licensing laws. (Ibid.)

Inland Empire Center cites City of Torrance v. Transitional Living Centers for Los

Angeles, Inc. (1982) 30 Cal.3d 516, 521, Cohen v. Board of Supervisors (1985) 40 Cal.3d


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277, 293, OConnell v. City of Stockton (2007) 41 Cal.4th 1061, 1068-1069, and

Northern Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 103 -

104 for the proposition the MMP preempts Riversides ordinance banning MMDs.

These cases are factually inapposite. They do not concern medical marijuana, the CUA,

the MMPA, or local ordinances regulating or banning MMDs. While the cases address

general preemption principles, they are not dispositive of the issues raised in the instant

case.

Inland Empire Center alsolists numerous state statutes which Inland Empire

Center claims demonstrate the MMP encompasses a comprehensive scheme intended to

regulate just about every aspect of the administration of medical marijuana, including

MMPs. Inland Empire Center argues that the CUA and MMP impliedly and expressly

preempt local regulations prohibiting MMDs by fully occupying the area of law through

statutes, such as sections 11362.765 and 11362.775 of the MMP. We disagree. The

CUA and MMP do not preclude Riverside from enacting zoning ordinances prohibiting

MMDs in the city. In addition, the MMP provides immunity only as to lawful MMDs.

An MMD operating in violation of a zoning ordinance prohibiting MMDs is not lawful.

(b) State Law Tolerating Local Action

The CUA and MMP do not provide general law couched in such terms as to

indicate clearly that a paramount state concern will not tolerate further or additional local

action[.] (Kruse, supra, 177 Cal.App.4th at pp. 1169, 1176; Sherwin-Williams, supra, 4

Cal.4th at p. 898.) Because the state statutory scheme (the CUA and MMP) expresses an

intent to permit local regulation of MMDs, preemption by implication of legislative


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intent may not be found here. (Kruse, at p. 1176.) In Kruse, the court explained that the

CUA and MMP did not preclude local action regarding medical marijuana, except in the

areas of punishing physicians for recommending marijuana to their patients, and

according qualified persons affirmative defenses to enumerated penal sanctions. (

11362.5, subds. (c), (d), 11362.765, 11362.775.) The CUA expressly provides that it

does not supersede legislation prohibiting persons from engaging in conduct that

endangers others ( 11362.5, subd. (b)(2)), and the MMP expressly states that it does not

prevent a city or other local governing body from adopting and enforcing laws consistent

with this article ( 11362.83). (Ibid.)

In addition, after Kruse was decided, the Legislature added section 11362.768 in

2010. With regard to this new provision, the court inHill, supra, 192 Cal.App.4th 861

noted that the Legislature showed it expected and intended that local governments adopt

additional ordinances regulating medical marijuana. (Id. at p. 868.) Section 11362.768

states that: (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 provider. As theHill

court noted regarding this statute, If there was ever any doubt about the Legislatures

intention to allow local governments to regulate marijuana dispensaries, and we do not

believe there was, the newly enacted section 11362.768, has made clear that local


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government may regulate dispensaries. (Ibid.) TheHill court added that a local

government can zone where MMDs are permissible (id. at p. 870) and apply nuisance

laws to MMDs that do not comply with valid ordinances. (Id. at pp. 868, 870.)

Preemption by implication of legislative intent may not be found here where the

Legislature has expressed its intent to permit local regulation of MMDs and where the

statutory scheme recognizes local regulations. (Kruse, supra, 177 Cal.App.4th at p.

1176.)

(c) Balancing Adverse Effects and Benefits of Local Law

Inland Empire Center has also not established the third indicium of implied

legislative intent to fully occupy thearea of regulating MMDs. Inland Empire Center

has not shown that any adverse effect on the public from Riversides ordinance banning

MMDs outweighs the possible benefit to the city. (Kruse, supra, 177 Cal.App.4that p.

1169.) Inland Empire Center argues that allowing Riverside to ban MMDs would lead

to nonuniform application of the law, with MMDs concentrated in limited areas or not

existing in entire regions of the state. We recognize that, as Inland Empire Center

stresses, the Legislature intended in enacting the MMP to promote uniform application of

the CUA and enhance access to medical marijuana through MMDs( 11362.7,

Historical and Stat. Notes, 40, Pt. 2 Wests Ann. Health & Saf. Code (2007) foll.

11362.7, 1 and 3 of Stats. 2003, c. 875 (S.B. 420)). Nevertheless, nothing in the CUA

or MMP suggests that cities are required to accommodate the use of medical marijuana

and MMD, by allowing MMDs within every city. Nothing stated in the CUA and MMP

precludes cities from enacting zoning ordinances banning MMDs within their


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jurisdictions. Furthermore, those who wish to use medical marijuana are not precluded

from obtaining it by means other than at an MMD in Riverside.

As concluded in Kruse, supra, 177 Cal.App.4that page 1176 and Sherwin-

Williams, supra,4 Cal.4th at page 898, neither the CUA nor the MMP provides partial

coverage of a subject that is of such a nature that the adverse effect of a local ordinance

on the transient citizens of the state outweighs the possible benefit to the City.

[Citations.] [A] local ordinance is not impliedly preempted by conflict with state law

unless it mandate[s] what state law expressly forbids, [or] forbid[s] what state law

expressly mandates. [Citation.] That is because, when a local ordinance does not

prohibit what the statute commands or command what it prohibits, the ordinance is not

inimical to the statute. [Citation.] [Citation.] Neither the CUA nor the MMP compels

the establishment of local regulations to accommodate medical marijuana dispensaries.

The Citys enforcement of its licensing and zoning laws and its temporary moratorium on

medical marijuana dispensaries do not conflict with the CUA or the MMP. (Kruse, at p.

1176.)

Inland Empire Center urges this court to disregard Kruse, supra, 177 Cal.App.4th

1153and City of Corona v. Naulls (2008) 166 Cal.App.4th 418, because these cases are

not dispositive for reasons noted in Qualified, supra, 187 Cal.App.4th 734. We agree

Kruse andNaulls are factually distinguishable from the instant case because Kruse and

Naulls involve temporary MMD moratoriums, whereas the instant case involves a

permanent ban. Nevertheless, the analysis in Kruse, addressing the issue of preemption,

is applicable in the instant case.


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4. Complete Ban

Inland Empire Center argues that, although local governments can regulate

MMDs under subdivisions (f) and (g) of section 11362.768, this statute only concerns

restricting MMDs located near schools. But it is clear from subdivisions (f) and (g), in

conjunction with the MMP as a whole, that the Legislature intended to allow local

governments to regulate MMDs beyond the limited provisions included in the CUA and

MMP, as long as the local provisions are consistent with the CUA and MMP. Zoning

ordinances banning MMDs are not inconsistent with the CUA and MMP, as discussed

above.

Inland Empire Center also argues that subdivisions (f) and (g) of section

11362.768 do not authorize local governments to enact ordinances totally banning

MMDs. Local government canonly restrict or regulate the location or

establishment of MMDs. ( 11362.768, subds. (f), (g).) Inland Empire Center asserts

that restricting and regulating MMDs is more limited than completely banning MMDs

and therefore Riverside did not have authority under section 11362.768 to ban all

MMDs. We disagree.

We construe the words in section 11362.768 in their context and harmonize them

according to their ordinary, common meaning. [Citation.] . . . We consider the

consequences which would flow from each interpretation and avoid constructions which

defy common sense or which might lead to mischief or absurdity. [Citations.] By doing

so, we give effect to the legislative intent even though it may be inconsistent with a strict,


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literal reading of the statute. (Friedman v. City of Beverly Hills (1996) 47 Cal.App.4th

436, 441-442.)

In determining whether section 11362.768 authorizes local government to ban

MMDs, we look to the ordinary, common meaning of the terms ban, restrict,

restriction, regulate, and regulation. The term regulate is defined in the

dictionary as: [T]o govern or direct according to rule . . . [or] laws . . . . (Websters 3d

New Internat. Dict. (1993) p. 1913.) The term regulation is defined in Blacks Law

Dictionary as: 1. The act or process of controlling by rule or restriction . . . . 3. A rule

or order, having legal force, usu. issued by an administrative agency . . . . (Blacks Law

Dict. (8th ed. 2004) p. 1311.) Restriction is defined as: 1. A limitation or

qualification. 2. A limitation (esp. in a deed) placed on the use or enjoyment of

property. (Blacks Law Dict., supra, p. 1341.)

Applying these definitions, we conclude Riversides prohibition of MMDs in

Riverside through enacting a zoning ordinance banning MMDs, is a lawful method of

limiting the use of property by regulating and restricting the location and establishment of

MMDs in the city. (Leyva v. Superior Court(1985) 164 Cal.App.3d 462, 473 [Fourth

Dist., Div. Two].) A ban or prohibition is simply a type or means of restriction or

regulation. Riversides ban of MMDs is not preempted by the CUA or MMP.

5. Nuisance Per Se

Inland Empire Centers MMD constitutes a violation of Riversides valid and

enforceable zoning ordinance banning MMDs in Riverside. In turn, the code violation

constitutes a nuisance per se subject to abatement. Since Riverside is likely to prevail on


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the merits at trial, the trial court did not abuse its discretion issuing a preliminary

injunction enjoining Inland Empire Center from operating its MMD in Riverside.

(Alliant, supra, 159 Cal.App.4th at p. 1300.)

A nuisance per se exists when a legislative body with appropriate jurisdiction, in

the exercise of the police power, expressly declares a particular object or substance,

activity, or circumstance, to be a nuisance. . . . [T]o rephrase the rule, to be considered a

nuisance per se the object, substance, activity or circumstance at issue must be expressly

declared to be a nuisance by its very existence by some applicable law. [Citation.]

[W]here the law expressly declares something to be a nuisance, then no inquiry beyond

its existence need be made. . . . [Citation.] Nuisancesper se are so regarded because

no proof is required, beyond the actual fact of their existence, to establish the nuisance.

[Citations.] [Citation.] (Kruse, supra, 177 Cal.App.4th at pp. 1163-1164.)

InNaulls, the court affirmed a trial court order granting a preliminary injunction

closing down an MMD on the ground the MMD constituted a nuisance per se subject to

abatement because there was no express code provision permitting MMDs and no

request for a variance. It was presumed inNaulls that the MMD was impermissible and

was a nuisance per se subject to abatement. (City of Corona v. Naulls, supra, 166

Cal.App.4that pp. 428, 432-433.) TheNaulls court held: [T]he court was presented

with substantial evidence that Naulls, by failing to comply with the Citys various

procedural requirements, created a nuisance per se, subject to abatement in accordance

with the Citys municipal code. Issuance of a preliminary injunction was therefore a

proper exercise of the courts discretion. (Id. at p. 433.)


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CitingNaulls, the court in Kruse, supra, 177 Cal.App.4th 1153also upheld

injunctive relief enjoining operation of an MMD anywhere in the city. (Id. at p. 1158.)

The Kruse court stated, [w]e findNaullspersuasive here. Kruses operation of a

medical marijuana dispensary without the Citys approval constituted a nuisance per se

under section 1.12.010 of the Citys municipal code and could properly be enjoined.

(Kruse, supra, 177 Cal.App.4th at p. 1166.) No showing the MMD caused any actual

harm was required to establish a nuisance per se. (Ibid.)

Likewise, here, Inland Empire Centers MMD constitutes a municipal code

violation and nuisance per se. (RMC, 6.15.020(Q), 1.01.110(E).) The trial court

therefore did not abuse its discretion in granting Riverside injunctive relief based upon

Inland Empire Centers MMD constituting a nuisance per se subject to abatement.

VIII

DISPOSITION

The judgment is affirmed. Plaintiff is awarded its costs o

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