The opinion
Filed 4/29/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
COUNTY OF TULARE,
F063555
Plaintiff and Respondent,
(Super. Ct. No. 10-239660)
v.
JEFFREY LEE NUNES, JR. et al.,
OPINION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Tulare County. Paul A.
Vortmann, Judge.
William A. Romaine for Defendants and Appellants.
Kathleen Bales-Lange, County Counsel, Teresa M. Saucedo, Chief Deputy County
Counsel, Julia C. Langley, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
By local zoning ordinance, the County of Tulare (the County) restricted the
location of medical marijuana collectives and cooperatives (MMC‟s) to commercial and
manufacturing zones. In violation of that ordinance, Jeffrey Nunes, Jr., and Foothill
Growers Association, Inc. (Defendants), operated an MMC in an agricultural zone. The
County brought an action for injunctive relief seeking to require Defendants to
discontinue the nonconforming use of the property. The trial court granted the County‟s
motion for summary judgment and issued an injunction prohibiting Defendants from
operating an MMC at that location in violation of the zoning ordinance. Defendants
appeal. They argue the zoning ordinance is invalid because it conflicts with the state‟s
general law and that it is unconstitutional. Defendants are mistaken. The zoning
ordinance is a reasonable exercise of the County‟s power to enact local legislation (Cal.
Const., art. XI, § 7), and Defendants have failed to show any conflict with state law or
constitutional principle. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
We begin with the County‟s zoning ordinance in question. Section 15.31 of
Ordinance No. 352 (the County‟s main ordinance relating to zoning) limits the
permissible locations of MMC‟s to certain zones in the County. Section 15.3 provides
that MMC‟s “shall not be established or located in any zone in the County of Tulare, nor
shall any building or land be used for such collectives or cooperatives, other than those
located in a C-2 (General Commercial), C-3 (Service Commercial), M-1 (Light
Manufacturing), or M-2 (Heavy Manufacturing) zone district.” It also prohibits MMC‟s
from being located within 1,000 feet of certain incompatible uses, such as schools,
daycare facilities, places of religious worship, public parks, or other MMC‟s. In adopting
Section 15.3, the County stated its findings and concerns regarding the potential adverse
effects of MMC‟s on public health, safety and general welfare, including risks of
increased crime, decreased property values, and deterioration of neighborhoods. The
provision was clearly an effort by the County to mitigate these adverse effects.
1The current version of section 15.3 was adopted in 2009. (We refer to this
provision as Section 15.3 or Section 15.3 of the zoning ordinance.) It further provides
that “[f]acilities or uses that distribute medical marijuana to two or more patients within
the unincorporated areas of the County of Tulare shall be unlawful unless they are
[MMC‟s].” A prior version of Section 15.3 addressed only the zoning of medical
marijuana dispensaries.
2.
The County learned that Defendants were operating an MMC and/or a medical
marijuana dispensary on land in an unincorporated area of the County that was zoned
AE-20 (Agricultural 20-Acre Minimum). Defendants were asked to refrain from this
prohibited use of the property, but they did not do so.
On October 14, 2010, the County filed a complaint against Defendants (and others
who are not part of this appeal) seeking a preliminary and permanent injunction for
“(1) Violation of Tulare County Zoning Ordinance; and (2) Maintaining a Public
Nuisance.” (Capitalization omitted.) The complaint alleged:
“At all times relevant to … this complaint, the subject property has been
and currently is zoned AE-20 (Agricultural 20-Acre Minimum). [¶] …
Section 15.3 of the Zoning Ordinance requires [MMC‟s] to be established
and located in C-2 (General Commercial), C-3 (Service Commercial), M-1
(Light Manufacturing), or M-2 (Heavy Manufacturing) zone districts.
[¶] … Defendants have not applied for a variance or a change of zone for
the non-conforming use of the subject property. [¶] … The current use of
the subject property by defendants as set forth herein is unlawful and a
violation of [S]ection 15.3 of the Zoning Ordinance. [¶] … [¶] …
Defendants‟ use of the subject property … causes irreparable harm to
property owners and residents of Tulare County in that such use of the
property endangers the public health, safety and welfare, is contrary to the
Zoning Ordinance, is destructive to the proper use of the land; and
depreciates the value of real property in the County, particularly the real
property of the defendants‟ neighbors.”
Based on these facts, the complaint included a first cause of action for injunctive
relief to prohibit the continued violation of the zoning ordinance, and a second cause of
action to abate a public nuisance.2 The complaint sought, in its prayer for relief, a
declaration that Defendants were in violation of Section 15.3 of the zoning ordinance and
an injunction ordering Defendants to “a. Close any and all business and other activities
occurring at the subject property that are in violation of the Tulare County Zoning
Ordinance; [¶] b. Cease and desist from using, conducting, allowing, permitting or
2Under section 19 of the zoning ordinance, a use that is contrary to provisions of
the County‟s zoning ordinance is a public nuisance.
3.
granting permission to use the subject property for the purpose of possessing, selling,
serving, storing, keeping, cultivating, giving away, and/or distributing cannabis or
marijuana at the subject property unless and until defendants obtain a zoning variance
permitting the use of the subject property in the [AE-20] zone.”
In May of 2011, the County moved for summary judgment on its complaint. The
motion for summary judgment was made on the ground that, as a matter of law,
Defendants‟ use of the property was a violation of Section 15.3 of the zoning ordinance
and also, based on this violation, a public nuisance. The County asked the trial court to
grant its motion and to issue the requested injunctive relief against Defendants. The
County‟s separate statement of undisputed facts in support of its motion included as
“undisputed material facts” the timeline of the County‟s adoption of Section 15.3 of the
zoning ordinance, Defendants‟ nonconforming usage of the property in violation of
Section 15.3, and their failure to apply for a variance or change of zone regarding this
nonconforming use of the property.
In their opposition to the motion for summary judgment, Defendants submitted a
separate statement that conceded the County‟s asserted undisputed facts. Defendants,
however, submitted three additional “facts.” They asserted that the property was not used
for the commercial sale of marijuana, nor for a medical marijuana “dispensary,” but
merely for the “collective cultivation of medical marijuana by members of the Foothill
Growers Association, Inc.” In opposing the motion, Defendants primarily argued (as
they do on appeal) that the ordinance was unenforceable since it was allegedly contrary to
the general law of the state or was unconstitutional.
On August 9, 2011, following the hearing on the motion for summary judgment,
the trial court adopted its tentative ruling as the order of the court. That ruling was to
grant the County‟s motion. The trial court explained that the “[a]uthorities submitted by
[the County] … show that [the County‟s] ordinances are constitutionally valid, and that
there is no triable issue of fact or law .…” As a result, “[the County] [was] entitled to
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recover judgment against all Defendants” in “this injunctive relief action .…” The same
day, the trial court issued its order granting the permanent injunction as requested in the
County‟s complaint.
Defendants‟ timely notice of appeal followed.
DISCUSSION
I. Standard of review
On appeal following a trial court‟s grant of a summary judgment motion, we
determine de novo whether an issue of material fact exists and whether the moving party
is entitled to summary judgment as a matter of law. (Brantley v. Pisaro (1996) 42
Cal.App.4th 1591, 1601.) In this appeal, Defendants do not contend that any material
facts are in dispute; they raise only legal issues. In particular, Defendants challenge the
validity of Section 15.3 of the zoning ordinance. Whether a local ordinance is
unconstitutional or preempted by state statute is a question of law subject to our de novo
review. (County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 867.) Similarly, the
interpretation and application of a statute is reviewed de novo. (Upland Police Officers
Assn. v. City of Upland (2003) 111 Cal.App.4th 1294, 1301; County of Sonoma v.
Superior Court (2010) 190 Cal.App.4th 1312, 1322-1323.)
II. Zoning ordinance does not conflict with general law
Defendants contend that Section 15.3 of the zoning ordinance is in conflict with
the general statutory law of this state. To evaluate Defendants‟ argument, we begin with
a brief overview of the relevant statutory provisions that address the subject of medical
marijuana.
A. Statutory background
Compassionate Use Act
In 1996, California voters adopted Proposition 215, known as the Compassionate
Use Act of 1996 (CUA) (Health & Saf. Code, § 11362.5).3 The CUA stated that its
3All future statutory references are to the Health and Safety Code.
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intent was to “ensure that seriously ill Californians have the right to obtain and use
marijuana for medical purposes where that medical use is deemed appropriate and has
been recommended by a physician who has determined that the person‟s health would
benefit from the use of marijuana”; “ensure that patients and their primary caregivers
who obtain and use marijuana for medical purposes upon the recommendation of a
physician are not subject to criminal prosecution or sanction”; and “encourage the federal
and state governments to implement a plan to provide for the safe and affordable
distribution of marijuana to all patients in medical need of marijuana.” (§ 11362.5,
subd. (b)(1)(A)-(C).)
Despite this broadly worded statement of intent, the CUA‟s approach to the issue
of medical marijuana was a relatively modest one: It provided immunity from
prosecution for certain conduct that would otherwise be criminal. (People v. Mower
(2002) 28 Cal.4th 457, 470; People v. Urziceanu (2005) 132 Cal.App.4th 747, 774.)
Section 11362.5, subdivision (d), states: “Section 11357, relating to the possession of
marijuana, and 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.” (See also subd. (c) [protecting physicians who recommend
use].) As recognized by our Supreme Court, the CUA did not create “a broad right to use
marijuana without hindrance or inconvenience.” (Ross v. RagingWire
Telecommunications, Inc. (2008) 42 Cal.4th 920, 928, 929 [CUA was “narrow exception
to the criminal law”] (Ross).) “To the contrary, the only „right‟ to obtain and use
marijuana created by the [CUA] is the right of „a patient, or … a patient‟s primary
caregiver, [to] possess[] or cultivate[] marijuana for the personal medical purposes of the
patient upon the written or oral recommendation or approval of a physician‟ without
thereby becoming subject to punishment under sections 11357 and 11358 of the Health
and Safety Code.” (Id. at p. 929; see also, People v. Urziceanu, supra, at p. 774 [“the
6.
[CUA] created a limited defense to crimes, not a constitutional right to obtain
marijuana”].)
The CUA further stated: “Nothing 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 nonmedical purposes.” (§ 11362.5, subd. (b)(2).)
Medical Marijuana Program Act
In 2003, the Legislature added the Medical Marijuana Program Act (MMPA)
(§ 11362.7 et seq.) as article 2.5, division 10, chapter 6, of the Health and Safety Code.
The Legislature passed the MMPA with several purposes in view, including facilitating
prompt identification of qualified patients and caregivers in order to avoid unnecessary
arrest and prosecution, promoting uniform and consistent application among the counties,
and enhancing access of patients and caregivers to medical marijuana through collective,
cooperative cultivation projects. (Stats. 2003, ch. 875, § 1.) To accomplish these goals,
the MMPA created a voluntary program for the issuance of identification cards to
qualified patients and primary caregivers. The program would be implemented by each
county. (§ 11362.71.)
In addition, “[a]s part of its effort to clarify and smooth implementation of the
[CUA], the [MMPA] immunizes from prosecution a range of conduct ancillary to the
provision of medical marijuana to qualified patients.” (People v. Mentch (2008) 45
Cal.4th 274, 290.) For example, section 11362.7654 “accords qualified patients, primary
caregivers, and holders of valid identification cards, an affirmative defense to certain
enumerated penal sanctions that would otherwise apply to transporting, processing,
administering, or giving away marijuana to qualified persons for medical use.” (City of
4Section 11362.765, subdivision (a), states in part: “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 Section 11357, 11358, 11359, 11360, 11366, 11366.5, or
11570.”
7.
Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1171.) Similarly, section 11362.775
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.” The MMPA also quantifies an amount of marijuana a qualified patient may
ordinarily possess (§ 11362.77) and identifies places where patients may not engage in
smoking of medical marijuana (§ 11362.79).
Section 11362.83 of the MMPA, prior to its recent amendment stated, “Nothing 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.) This provision has been
construed to mean that the Legislature “expected and intended that local governments
[would] adopt additional ordinances” to regulate medical marijuana operations through
zoning, licensing, and other reasonable requirements. (County of Los Angeles v. Hill,
supra, 192 Cal.App.4th at p. 868.) If there were any doubts that this was the case, recent
legislative clarifications have removed them.
In 2010, the Legislature added section 11362.768 to the MMPA (Stats. 2010,
ch. 603, § 1 [A.B. 2650]), which restricted the location of medical marijuana
cooperatives, collectives, or dispensaries having a storefront or mobile retail outlet to
locations more than 600 feet from schools. (§ 11362.768, subds. (b) & (e).) The same
section also stated: “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” (§ 11362.768,
subd. (f), italics added); and “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 .…” (Id., subd. (g).) The wording of
8.
subdivisions (f) and (g) of section 11362.768 makes explicit that the restriction
established by the statute (i.e., no medical marijuana dispensaries or MMC‟s within 600
feet of a school) was not intended to preempt local regulation or prohibit local
governments from adopting more stringent restrictions. Thus, section 11362.768 reflects
the Legislature‟s understanding that local governments already had, and would continue
to have, the right to regulate or restrict the location and establishment of medical
marijuana dispensaries and MMC‟s, absent a conflict with state law.
Moreover, in 2011, the Legislature amended section 11362.83 and, pursuant to
that amendment, this section now states: “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; see Stats. 2011, ch. 196, § 1 [A.B. 1300],
eff. Jan. 1, 2012.) Not only does section 11362.83, as amended, allow for local
ordinances that regulate the location and establishment of medical marijuana dispensaries
and MMC‟s, but it also applies broadly to the entire MMPA (i.e., “Nothing in this article
[the MMPA] shall prevent”). (Ibid., italics added.)
Although the amendment of section 11362.83 postdates the County‟s enactment of
Section 15.3 and the trial court‟s order, it is relevant to whether Section 15.3 was in
conflict with the MMPA because the new wording of the statute merely clarified existing
law. Before the Legislature enacted the amendment to section 11362.83, two appellate
courts had found—based in part on the former version of section 11362.83—that local
zoning regulation of such land uses was permitted under the MMPA. (See County of Los
Angeles v. Hill, supra, 192 Cal.App.4th at p. 867 [“[S]ection 11362.83 allows a county to
regulate the establishment of [medical marijuana dispensaries] and their locations so long
as those regulations are consistent with the provisions of [the MMPA]”]; and City of
9.
Claremont v. Kruse, supra, 177 Cal.App.4th at p. 1175 [“Nothing in the text or history of
the [MMPA] precludes the City‟s adoption of a temporary moratorium on issuing permits
and licenses to medical marijuana dispensaries, or the City‟s enforcement of licensing
and zoning requirements applicable to such dispensaries”].) Of course, the Legislature is
presumed to be aware of relevant appellate court decisions when it amends statutes.
(Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155.) The legislative
history of the amendment confirms the Legislature was mindful of these prior decisions.5
For these reasons, and because the 2011 amendment to section 11362.83 is consistent
with the above-mentioned appellate decisions construing that section, we conclude that
the amendment was a legislative endorsement of those appellate decisions. As a result,
the amendment amounted to a clarification of what the statute had allowed all along.
(See Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 735 [addition of statutory
language consistent with earlier case law construing statute amounts to legislative
endorsement of that construction].)
Our conclusion that the amendment was a clarification of existing law is consistent
with the fact that the Legislature retained the original language of section 11362.83,
which became subdivision (c). As a result, the new wording in subdivisions (a) and (b)
was not a change in the law, but a clarification or elaboration of it. This is further
confirmed by the fact the Legislature had recently passed section 11362.768, which
reflected the lawmakers‟ understanding that local governments could regulate medical
marijuana dispensaries and MMC‟s.
B. Legal framework for analysis of Defendants’ contentions
Before we look at Defendants‟ contention that Section 15.3 of the zoning
ordinance conflicted with the general statutory law, we first summarize the legal
principles that apply when a local ordinance is challenged on this ground.
5See,
regarding A.B. 1300, Assembly Committee on Public Safety, analysis of
A.B. No. 1300 (2011-2012 Reg. Sess.) Apr. 26, 2011.)
10.
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.” Any conflicting ordinance “is preempted
by state law and thus void.” (O’Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1065
(O’Connell).)
“A conflict between state law and an ordinance exists if the ordinance duplicates
or is coextensive therewith, is contradictory or inimical thereto, or enters an area either
expressly or impliedly fully occupied by general law.” (American Financial Services
Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1251.) “A local ordinance duplicates
state law when it is „coextensive‟ with state law.” (O’Connell, supra, 41 Cal.4th at
p. 1067.) “A local ordinance contradicts state law when it is inimical to or cannot be
reconciled with state law.” (Id. at p. 1068.) “A local ordinance enters a field fully
occupied by state law in either of two situations—when the Legislature „expressly
manifest[s]‟ its intent to occupy the legal area or when the Legislature „impliedly‟
occupies the field. [Citations.]” (Ibid.; see also 8 Witkin, Summary of Cal. Law (10th
ed. 2005) Constitutional Law, § 986, p. 551 [“[W]here the Legislature has manifested an
intention, expressly or by implication, wholly to occupy the field … municipal power [to
regulate in that area] is lost”].)
“The party claiming that general state law preempts a local ordinance has the
burden of demonstrating preemption. [Citation].” (Big Creek Lumber Co. v. County of
Santa Cruz (2006) 38 Cal.4th 1139, 1149.) Moreover, “when local government regulates
in an area over which it traditionally has exercised control, such as the location of
particular land uses, California courts will presume, absent a clear indication of
preemptive intent from the Legislature, that such regulation is not preempted by state
statute. [Citation.] The presumption against preemption accords with our more general
understanding that „it is not to be presumed that the [L]egislature in the enactment of
statutes intends to overthrow long-established principles of law unless such intention is
11.
made clearly to appear either by express declaration or by necessary implication.‟
[Citations.]” (Id. at pp. 1149-1150.) The presumption against preemption applies to this
appeal because land use and zoning regulation in California have “historically … been a
function of local government under the grant of police power contained in article XI,
section 7 of the California Constitution.” (Id. at p. 1151.) “Thus, „[t]he power of cities
and counties to zone land use in accordance with local conditions is well entrenched.‟
[Citation.] „In enacting zoning ordinances, the municipality performs a legislative
function, and every intendment is in favor of the validity of such ordinances.‟
[Citation.]” (Id. at p. 1152.)
C. Defendants’ particular claims of statutory conflict
Defendants do not claim that the Legislature intended to occupy the field
concerning all regulation of MMC‟s or dispensaries. As our discussion of the CUA and
MMPA demonstrated, this argument would fail because the Legislature clearly intended
that cities and counties would enact local land use and zoning ordinances regarding
MMC‟s and dispensaries. Nor are Defendants claiming that the zoning ordinance was
coextensive with or duplicated state law. Rather, it appears that Defendants‟ position is
that Section 15.3 of the zoning ordinance and related provisions were contradictory to
provisions of the CUA or MMPA.
As we have mentioned, “[a] local ordinance contradicts state law when it is
inimical to or cannot be reconciled with state law.” (O’Connell, supra, 41 Cal.4th at
p. 1068.) In this regard, Defendants‟ first argument is that, since Section 15.3 provides
an actual definition of what constitutes a “Medical marijuana collective” and “Medical
marijuana cooperative,” it is contrary to the MMPA.6 Defendants claim this is so
6Section 15.3 refers to the definitions provided in “Chapter 21, Part VI of the
Ordinance Code.” At section 6-21-1010 (“Definitions”), the term “Medical marijuana
collective” is defined as “an entity, facility or location, at a fixed, immobile location, at
which two (2) or more qualified patients, persons with an identification card, and the
designated primary care givers of qualified patients and persons with an identification
12.
because section 11362.775 of the MMPA does not give a specific definition of what it
means to “associate … collectively or cooperatively to cultivate marijuana for medical
purposes .…” Defendants‟ argument is unpersuasive. The County‟s zoning ordinance
was not inimical to section 11362.775, but gave the “collective” and “cooperative”
concepts mentioned in that section reasonable specification and parameters. No
contradiction or conflict with the MMPA is shown.
Contrary to Defendants‟ assumption, section 11362.775 does not establish a
statutory “right” to collectively or cooperatively engage in the cultivation of medical
marijuana at any location without hindrance or regulation, but merely sets forth certain
immunities from criminal prosecution. As stated in County of Los Angeles v. Hill,
supra,192 Cal.App.4th at pages 868-869: “The limited statutory immunity from
prosecution … does not prevent the County from applying its nuisance laws to MMD‟s
that do not comply with its valid ordinances.… The statute does not confer on qualified
patients and their caregivers the unfettered right to cultivate or dispense marijuana
anywhere they choose. The County‟s constitutional authority to regulate the particular
manner and location in which a business may operate (Cal. Const., art. XI, § 7) is
unaffected by section 11362.775.”
Next, Defendants contend that a related provision in the Tulare County Ordinance
Code (ch. 21, part VI, § 6-21-1040) would restrict the total number of marijuana plants in
card, combined, associate within the unincorporated area of the County of Tulare in order
to jointly own and operate the business, facility or location and to collectively cultivate
marijuana for medical purposes, as provided in … Section 11362.775 .…” A “Medical
marijuana cooperative,” as defined in the same provision, is “an entity at a fixed,
immobile location, properly organized, registered and operated as such a corporation
pursuant to Corporations Code Section 12200 et seq. or Food and Agricultural Code
Section 54001 et seq., as amended, so that qualified patients, persons with an
identification card, and the designated primary caregivers of qualified patients and
persons with an identification card may cultivate marijuana for medical purposes
pursuant to … Section 11362.775 .…”
13.
any collective or cooperative cultivation to 99.7 It does not appear that the validity of
that numerical limitation would make any difference to our disposition, since this case
was (and is) based solely on the fact that, under Section 15.3 of the zoning ordinance, the
AE-20 zoning of the land where Defendants‟ MMC was located did not permit operation
of an MMC. This case was not a challenge to all of the County‟s ordinances that may
relate in any way to medical-marijuana-related land uses. Rather, Defendants raised the
issue of the purported conflict with state law as a defense to the County‟s lawsuit
enforcing Section 15.3, a zoning restriction on the location of MMC‟s.
In any event, Defendants have failed to meet their burden of showing that a
quantity limit of 99 plants per collective or cooperative would be inimical to the purposes
of the CUA or the MMPA. Since the CUA is narrow in scope, merely provides a defense
to certain crimes (Ross, supra, 42 Cal.4th at pp. 928-929), and does not provide for
collectives or cooperatives, Section 15.3‟s quantity limitation applicable to MMC‟s does
not conflict with the CUA. Defendants refer to section 11362.77 of the MMPA;
however, that provision is not a guarantee but merely an outer limit on how much
medical marijuana a qualified patient or caregiver may ordinarily possess without
prosecution. It provides a “safe harbor” amount for purposes of protecting against
criminal prosecution. (People v. Kelly (2010) 47 Cal.4th 1008, 1015, fn. 5 (Kelly).)8
Moreover, the ordinance provision is not an outright prohibition, but simply a limitation
on quantity. Defendants have failed to establish that the ordinance provision contradicts
or is inimical to the CUA or MMPA.
7Although not part of the text of Section 15.3 of the zoning ordinance, there is a
requirement in Section 15.3 that all MMC‟s comply with the regulations in chapter 21,
part VI.
8As we will discuss, Kelly, supra, 47 Cal.4th at pages 1048-1049, held that the
quantity limitations of section 11362.77 were invalid only insofar as they burdened
criminal defenses provided under the CUA.
14.
Finally, Defendants argue that, since one of the objectives of the MMPA was
greater uniformity in applying the CUA in each county, the Legislature could not have
intended that medical marijuana collectives, cooperatives, or dispensaries would be
regulated or restricted by local zoning laws such as Section 15.3 of the zoning ordinance.
We disagree. The Legislature has rejected that proposition in the recent amendments to
the MMPA, which clarified that a city or other local governing body may “[a]dopt[] local
ordinances that regulate the location, operation, or establishment of a medical marijuana
cooperative or collective.” (§ 11362.83, subd. (a); see also, § 11362.768, subds. (f), (g).)
At oral argument, Defendants‟ counsel contended that these recent amendments to
the MMPA were impermissible legislative revisions to the CUA, an initiative statute, and
therefore invalid under Kelly, supra, 47 Cal.4th 1008. This contention lacks merit. In
Kelly, the Supreme Court held that, to the extent section 11362.77‟s quantity limitation
for marijuana possession and cultivation burdened a criminal defense available under the
CUA (to possess or cultivate any amount of medical marijuana reasonably necessary for
a patient‟s current medical condition based on the express recommendation of a
physician), the section impermissibly amended the CUA in violation of the state
Constitution. (Kelly, supra, at pp. 1043-1049.) In all other respects, however,
section 11362.77 continued to “have legal significance” (Kelly, supra, at p. 1048), such
as a “safe harbor” against prosecution (id. at p. 1015, fn. 5; see also, Browne v. County of
Tehama (2013) 213 Cal.App.4th 704, 713, fn. 3). The principles applied in Kelly relating
to impermissible amendments of initiative measures have no bearing on this case because
no substantive provision of the CUA was amended or altered by the recent amendments
to the MMPA clarifying the role of local governments. (Kelly, supra, at pp. 1026-1027.)
As we have stated, the CUA did not provide a broad right to possess or cultivate medical
marijuana free from hindrance or local regulation, but merely furnished defenses to
specified crimes. (Ross, supra, 42 Cal.4th at pp. 928-929.)
15.
Further, we are in full agreement with the analyses and conclusions of other
Courts of Appeal that have held that local governing bodies may, under their traditional
police powers, regulate medical marijuana land uses by means of local zoning ordinances
and other regulations. (Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214
Cal.App.4th 1534; Browne v. County of Tehama, supra, 213 Cal.App.4th at pp. 718-725;
County of Los Angeles v. Hill, supra, 192 Cal.App.4th at pp. 867-871; City of Claremont
v. Kruse, supra, 177 Cal.App.4th at pp. 1163-1176; City of Corona v. Naulls (2008) 166
Cal.App.4th 418, 425-433.)9
III. Zoning ordinance does not violate the equal protection clause
Defendants argue that Section 15.3 of the zoning ordinance violates the equal
protection clause of the California Constitution (see Cal. Const., art. I, § 7). This
argument is unpersuasive.
“„“The concept of the equal protection of the laws compels recognition of the
proposition that persons similarly situated with respect to the legitimate purpose of the
law receive like treatment.”‟ [Citation.] “The first prerequisite to a meritorious claim
under the equal protection clause is a showing that the state has adopted a classification
that affects two or more similarly situated groups in an unequal manner.” [Citations.]‟”
(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) When a statutory classification is
challenged on equal protection grounds, most legislation is reviewed only to determine
whether the classification bears a rational relationship to a legitimate state interest.
(People v. Hofsheier (2006) 37 Cal.4th 1185, 1200.) In areas of social or economic
policy not involving suspect classifications or fundamental rights, the rational-basis test
applies—that is, the statute must be upheld so long as “there is any reasonably
conceivable state of facts that could provide a rational basis for the classification.
9In light of our conclusion, it is unnecessary to reach the County‟s alternative
argument that Defendants‟ challenge to the validity of the zoning ordinance was barred
by the statute of limitations.
16.
[Citations.] Where there are „plausible reasons‟ for [the classification] „our inquiry is at
an end.‟” (Kasler v. Lockyer (2000) 23 Cal.4th 472, 482.) “On rational-basis review, a
classification in a statute ... comes to us bearing a strong presumption of validity,
[citation], and those attacking the rationality of the legislative classification have the
burden „to negative every conceivable basis which might support it,‟ [citation].” (FCC v.
Beach Communications, Inc. (1993) 508 U.S. 307, 314-315; accord, Los Lomas Land
Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 858-859.)
Defendants claim that Section 15.3 of the zoning ordinance treats MMC‟s
unequally from individuals who grow medical marijuana. While it is true that
Section 15.3 singles out MMC‟s for special zoning restrictions (as to location), it does not
appear that MMC‟s are similarly situated to individuals for purposes of the ordinance.
Where a cooperative or collective enterprise is involved, it would necessarily involve a
number of individuals associating, cooperating, or operating together. As a result, there
would be an increased likelihood of a higher concentration of plants in cultivation and/or
a greater quantity of medical marijuana present in one place. It would therefore be
reasonable for the County to assume that MMC‟s would tend to increase the risk factors
of such a land use above that of individual cultivation.
As mentioned earlier, Section 15.3 of the zoning ordinance included findings of
potential adverse effects associated with MMC‟s, as did section 6-21-1000 (ch. 21,
part VI). The concerns expressed in the ordinance are not unreasonable. We conclude
that Defendants‟ equal protection challenge falls short because (1) the two classifications
(MMC‟s and individuals) are not similarly situated, and (2) the different treatment of
MMC‟s bears a rational relationship to legitimate government interests.
IV. Defendants’ remaining arguments fail
Defendants suggest that the trial court erred because it did not find that operation
of an MMC on the land was an “agricultural” use and therefore permissible in the AE-20
zone. As the trial court stated, however, and as the County‟s brief reiterates, marijuana is
17.
a controlled substance and is not treated as a mere crop or horticultural product under the
law. (§ 11054, subd. (d)(13); § 11358.) Although the CUA and MMPA provide defenses
to criminal prosecution under limited circumstances, that does not require the County to
define growing marijuana as an acceptable agricultural use of land for purposes of its
zoning laws.
Finally, Defendants apparently argue that the County could not regulate
Defendants‟ use of the land under its zoning laws because Defendants‟ MMC was
noncommercial, for qualified members only, and consequently not a “storefront” or
“retail” outlet within the meaning of section 11362.768, subdivision (e). We disagree.
Nothing in section 11362.768 indicates that zoning ordinances may only be applied to
MMC‟s that have storefronts or retail outlets, and other language in the statute expressly
refutes that notion. (§ 11362.768, subds. (f) & (g).) As they have throughout their
appeal, Defendants assume that, because section 11362.775 protects from criminal
prosecution certain persons “who … collectively or cooperatively … cultivate marijuana
for medical purposes” (§ 11362.775), it means they have an absolute right to engage in
these activities wherever they wish without being subject to local regulation or
restriction. That is not the law (see § 11362.768, subds. (f) & (g); § 11362.83, subds. (a)-
(c)).
We close by reiterating what was stated in County of Los Angeles v. Hill, supra,
192 Cal.App.4th at page 869: “The statute [§ 11362.775] does not confer on qualified
patients and their caregivers the unfettered right to cultivate or dispense marijuana
anywhere they choose. The County‟s constitutional authority to regulate the particular
manner and location in which a business may operate (Cal. Const., art. XI, § 7) is
unaffected by section 11362.775.” That same principle applies where, as here, the
particular land use involved is an MMC.
18.
DISPOSITION
The judgment is affirmed. The County is awarded its costs on appeal.
_____________________
Wiseman, Acting P.J.
WE CONCUR:
_____________________
Kane, J.
_____________________
Peña, J.
19.