Cannabis lawsuit - City of Fresno

 

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SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO 9

CENTRAL DIVISION – UNLIMITED CIVIL CASE

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MICHAEL S. GREEN, an individual, and DOES 1 through 20, inclusive, Plaintiffs,

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v. CITY OF FRESNO, a political subdivision of the State of California; JERRY P. DYER, in his official capacity as Chief of Police for the City of Fresno; MARK SCOTT, in his official capacity as Director of Development and Resource Management for the City of Fresno; and DOES 1 through 20, inclusive, Defendants

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Case No.: 12CECG01334 MWS VERIFIED COMPLAINT FOR DECLARATORY RELIEF, TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION

[C.C.P. Secs. 526, 527, 1060, 1084, 1085(a), 1086, 1103(a)]

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1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -

 

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Plaintiff Michael S. Green (hereinafter referred to as “Plaintiff”) alleges as follows:

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I.

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PARTIES

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Plaint Plaintif ifff is, and and at all times times herei herein n menti mentioned oned was, was, a reside resident nt of the City City of Fresn Fresno. o.

2. Plaint Plaintif ifff is igno ignoran rantt of the the true true names names and and capaci capacitie tiess of Plai Plainti ntiffs ffs named named herei herein n as Does Does 1 through 20, inclusive, and therefore brings action with by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained.

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Defend Defendant ant City City of of Fresno Fresno is is a politic political al subdi subdivis vision ion of the State State of Calif Californ ornia ia and is is sued as as a

municipal corporation organized and existing under a municipal charter. 4.

Defend Defendant ant Jerr Jerry y P. Dyer Dyer is sued sued in his his offic official ial capa capacit city y as the the Chief Chief of Polic Policee of the the City City of

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Fresno. Plaintiff is informed and believes Defendant Dyer has authority au thority over the enforcement of

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all state laws within the City at all times mentioned herein.

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and Resource Management for Defendant City of Fresno. Plaintiff is informed and believes

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Defend Defendant ant Mark Mark Scot Scottt is sued sued in in his his offici official al capaci capacity ty as interi interim m Direct Director or of Develop Developmen mentt

Defendant Scott has authority over the development and enforcement of land-use and zoning regulations within the City at all times mentioned herein.

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6.

Does 1 through through 20, incl inclusi usive, ve, are are sued sued herei herein n under under ficti fictiti tious ous name names. s. Their Their ttrue rue name namess and

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capacities are unknown to Plaintiff at this time. When their true names and capacities are 17

ascertained, Plaintiff will amend this complaint by inserting their true names and capacities herein.

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Plaintiff is informed and believes and thereon alleges that each of the fictitiously named

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defendants is responsible in some manner for the occurrences herein alleged, and that Plaintiff’s

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damages as alleged herein were proximately caused by such Defendants. 7. At all all times times h here erein in menti mentioned oned,, Defenda Defendants nts,, includ including ing Doe Doe Defen Defendan dants, ts, and and each each of them, them,

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were the agents, servants, and employees of each of the other Defendants and in doing the things

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alleged herein, were acting within the course and scope of said agency, servitude or employment, and with the permission and consent of each of the other Defendants.

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II.

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INTRODUCTION

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“CUA”), which decriminalized the cultivation and use of marijuana by seriously ill individuals

In 1996, 1996, Calif Californ ornia ia voters voters pass passed ed the the Compass Compassion ionate ate Use Use Act Act (refer (referred red to to herein hereinaft after er as

2 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -

 

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with a doctor’s recommendation. The Act's stated purpose was to ensure that seriously ill

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Californians have the right to obtain and use marijuana for medical purposes and to ““ensure ensure that

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 patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not no t subject to criminal prosecution or sanction.” (Health and Safety Code Secs. 11362.5(b)(1)(A)-(B).) 9. In 2003, 2003, the the Calif Californ ornia ia Legis Legislat lature ure enact enacted ed the Medi Medical cal Mari Marijua juana na Progr Program am Act Act (refer (referred red to to hereinafter as “MMPA”). The express intent was to “(1) Clarify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their primary caregivers in

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order to avoid unnecessary arrest and prosecution of these individuals and provide needed

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guidance to law enforcement officers. (2) Promote uniform and consistent application of the act

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among the counties within the state. (3) Enhance the access of patients and caregivers to medical

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marijuana through collective, cooperative cultivation projects.” (Stats. 2003, ch. 875, section 1,

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subd. (b)(1)-(3).) 10.

Interim Interim urgency urgency Ordinance Ordinance 2011-41, 2011-41, which placed an immedi immediate ate ban on on the the outdoor outdoor

cultivation of medical cannabis in the City, was heard and duly enacted by the Fresno City Council 14

on or about December 15, 2011. (A true and correct copy of the text of Ordinance 2011-41 and 15

City staff report is attached hereto as Exhibit “A.”)

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enacted by the Council on or about January 26, 2012. (A true and correct copy of the Fresno City

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Council minutes of December 15, 2011, and January 26, 2012, is attached hereto as Exhibit “B.”)

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The ban ban was extended extended for 10 months, months, 15 days, days, through through Ordina Ordinance nce 2012-3, 2012-3, which was duly duly

Pursuant Pursuant to to Health Health and and Safety Safety Code Code Secs. Secs. 11362.5( 11362.5(d) d) and and 11362.7(f) 11362.7(f),, Plainti Plaintiff ff holds holds a

statutory right to possess, use and cultivate medical cannabis in the matters set forth herein. 13. Plaintiff Plaintiff curren currently tly reside residess in the the City City and is is currently currently growing growing and cultivating cultivating outdoors outdoors at least one marijuana plant for his personal and recommended medical needs. If this ordinance is

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enforced, Plaintiff will lose money invested in the planting and a nd cultivation process, as well as any 23

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and all medicine which may have been harvested from the plants if grown to maturity outdoors. 14.

Pursuant Pursuant to to Ordinance Ordinance 2012-3, 2012-3, Plainti Plaintiff ff is subject subject to to nuisance nuisance abateme abatement, nt, fine fine and/or and/or

 prosecution of a misdemeanor by Defendants for outdoor cultivation of medical cannabis.

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Implementation of this ordinance has had, and will continue to have, a severe impact on Plaintiff's

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statutory rights and vested property rights, which causes Plaintiff immediate and irreparable harm.

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// 3 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -

 

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III.

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JURISDICTION AND VENUE

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This court court has jurisdict jurisdiction ion over this action action pursuan pursuantt to the the Californi Californiaa Constitut Constitution, ion, Articl Articlee VI,

Section 10, because this case is a cause not given by statute to other trial courts. 16.

Venue is is proper proper in this court because because Defendants Defendants reside reside in or or are situated situated in Fresno County. County.

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IV.

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FACTS APPLICABLE TO ALL CAUSES OF ACTION

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11362.5(d).

Plaintiff Plaintiff is a q qualif ualified ied patient patient as defined defined in Health Health and Safety Safety Code Code Sec. 11362.7(f) 11362.7(f) and and

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11362.7(d) and has permitted the outdoor cultivation of medical cannabis by Plaintiff at her home

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Plaintiff Plaintiff's 's m mother other is a primary primary caregive caregiverr as defined defined in Health Health and Safety Code Sec. Sec.

in a City residential zoning district at all times mentioned herein. 19.

Plaintiff Plaintiff holds holds a persona personall property property right right in the the matters matters set set forth forth herein herein in that that all all times times herein herein

he possessed at least one medical cannabis plant growing outdoors in the City and has expended 14

substantial time and money obtaining equipment and supplies for outdoor cultivation. 15

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At all all times times mentioned mentioned herein, herein, Plaintif Plaintifff did not not possess possess nor cultiva cultivate te medical medical cannabis cannabis in an

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amount greater than was reasonably related to his medical needs.

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financial resources required to install and operate an indoor growing system safely and affordably.

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Plaintiff further lacks access to state-authorized medical cannabis collective cultivation sites, with

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Plaintiff Plaintiff lacks suitable suitable buildi building ng space, space, high-inte high-intensity nsity lighting lighting equipment equipment,, knowledge knowledge and and

dispensaries and cooperatives prohibited in the City pursuant to Ordinance 2007-42. 22. Fresno Municipal Municipal Code Code Sec. Sec. 12-317-C12-317-C-1 1 authorize authorizess the continuatio continuation n of non-conform non-conforming ing land uses for five years after passage of a zoning ordinance restricting such uses, where such use

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is maintained in connection with a conforming co nforming building. 23

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No admini administr strati ative ve proced procedure uress are allo allowed wed in in Ordina Ordinance nce No. No. 2012-3. 2012-3.

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Government Government Code Sec. Sec. 65009, 65009, subdivi subdivision sion (c)(1)(B) (c)(1)(B),, requires requires Plaintiff Plaintiff to commenc commencee an

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action to review, set aside and void a decision to adopt or amend a zoning ordinance within 90

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days after the legislative body's decision. This action is timely filed.

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// - 4 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 

FIRST CAUSE OF ACTION

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For Declaratory Relief; Ord. No. 2012-3 deprives Plaintiff of statutory and vested property rights 2

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Plaintiff Plaintiff incorp incorporate oratess by referen reference ce the allegation allegationss set forth in the the previous previous paragraphs paragraphs..

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Article Article 1, Section Section 7 of the Califor California nia Constit Constitution ution and Civil Civil Code Code Sec. 52.1 prohibi prohibitt the

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enactment and enforcement of municipal laws that deprive an individual of their vested property

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rights and rights afforded under state statutes.

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situated of their rights under the CUA and the MMPA, namely, their rights as qualified patients

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under existing state statutes to a safe and affordable method by which they can cultivate, possess

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Ordinance Ordinance 2012-3 2012-3 violate violatess due proces processs by effecti effectively vely divesti divesting ng Plaintif Plaintifff and others others simil similarly arly

and use medical marijuana for their doctor-recommended medical needs. 28.

An actual actual controv controversy ersy has arisen arisen and now now exists exists between between Plaintif Plaintifff and Defendants Defendants

concerning their respective rights and duties in that Plaintiff contends he is authorized by the 11

Compassionate Use Act and the Medical Marijuana Program Act to possess and grow medical 12

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cannabis; and that the City may not interfere nor attempt to interfere by threats, intimidation, or coercion with the exercise and enjoyment of Plaintiff's rights, and that Plaintiff is authorized to

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seek injunctive relief pursuant to Civil Code Sec. 52.1 to protect the peaceable exercise of his

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rights under California law and the state Constitution; whereas Defendants dispute these

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contentions and contend that Ordinance 2012-3 is consistent with all state laws and does no nott

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interfere with the exercise of Plaintiff's statutory and vested property rights.

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Plaintiff Plaintiff desir desires es a judici judicial al determina determination tion of of his rights rights and duties duties,, and a declar declaration ation as as to

whether Ordinance 2012-3 is consistent with the CUA/MMPA and all applicable state laws, and, if 19

so, the enforcement methods that City shall use to effect compliance with the ordinance. 20 21

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A judicial judicial declara declaration tion is is necessary necessary and appropri appropriate ate at this time time under under the the circumst circumstances ances so so

that Plaintiff may ascertain his rights and duties under Ordinance 2012-3, rather than expose himself to possible criminal and/or civil sanctions, including property seizure, for non-compliance.

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SECOND CAUSE OF ACTION

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For Declaratory Relief; Ord. No. 2012-3 is pre-empted by state law and therefore void

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Plaintiff Plaintiff incorp incorporate oratess by referen reference ce the allegation allegationss set forth in the the previous previous paragraphs paragraphs..

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On or about December December 15, 2011, interim interim urgency urgency Ordinance Ordinance 2011-41 2011-41 was enacted enacted by the the

Fresno City Council. The ordinance declared the outdoor cultivation of medical marijuana to be a - 5 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 

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nuisance per nuisance  per se, se, pursuant to Fresno Municipal Code Sec. 10-605(l), and each violation “also shall  be deemed a misdemeanor.” On or about January 26, 2012, Ordinance 2012-3 was enacted, extending the City's outdoor cultivation ban for 10 months, 15 days. 33.

The MMPA MMPA added added Health Health and Safety Safety Code Sec. 11362.77 11362.775, 5, which which provides provides that qualified qualified

 patients, persons with valid identification cards, and the designated primary caregivers caregivers of qualified  patients, who associate within the State of California California in order to collectively or cooperatively cultivate  marijuana for medical purposes, shall not solely on the basis of that fact be subject to cultivate criminal sanctions  sanctions for the possession of marijuana [11357], cultivation of marijuana [11358],  possession for sale [11360], transportation transportation [11360], maintaining a place for sale, giving away or use of marijuana [11366], making premises available for the manufacture, storage or distribution

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of controlled substances [11366.5]  ,, or  the  the abatement of a nuisance created by premises  premises used for

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manufacture, storage or distribution of controlled substance [11570].

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Health Health and Safety Safety Code Sec. 11362.775 11362.775 exempts exempts qualified qualified patients patients and and their their primar primary y

caregivers not only from criminal prosecution for authorized collective or cooperative activities,  but also from nuisance abatement proceedings. Thus, the Legislature has determined the activities

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it authorized at collective or cooperative cultivation cu ltivation sites do not constitute a nuisance. 15

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In equal equal manner, manner, Health Health and Safety Safety Code Sec. 11362.76 11362.765 5 exempts exempts indivi individual dual qualif qualified ied

 patients and their primary caregivers not only from criminal criminal prosecution for authorized possession

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and cultivation of medical cannabis, but also from nuisance abatement proceedings. Thus, the

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Legislature has determined the activities it authorized for qualified patients and their primary

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caregivers, including the cultivation of medical cannabis, do not constitute a nuisance.

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36. Under Ordinance Ordinance 2012-3, 2012-3, the outdoor outdoor cultivation cultivation of medical medical cannabis cannabis always always constitut constitutes es a nuisance, even though the Legislature has concluded otherwise in the MMPA. Because the City's  ban directly contradicts state law, it is pre-empted. pre-empted. Article 11, Section 7 of the California

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Constitution and Government Code Sec. 37100 prohibit the enactment and enforcement of 23

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municipal laws that conflict with the general laws of the State. 37.

An actual actual controv controversy ersy has arisen arisen and now now exists exists between between Plaintif Plaintifff and Defendants Defendants

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concerning their respective rights and duties in that Plaintiff contends he is authorized by the

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Compassionate Use Act and the Medical Marijuana Program Act to possess and grow medical

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cannabis without being subject to criminal or civil sanctions pursuant to Ordinance 2012-3;

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whereas Defendants dispute these contentions and contend that Ordinance 2012-3 is consistent 6 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -

 

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with all state laws and imposes sanctions for outdoor cultivation of medical cannabis by Plaintiff

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and others similarly situated in a manner that is not prohibited p rohibited by the CUA and/or MMPA.

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Plaintiff Plaintiff desir desires es a judici judicial al determina determination tion of of his rights rights and duties duties,, and a declar declaration ation as as to

whether Ordinance 2012-3 is consistent with the CUA/MMPA and all applicable state laws, and, if so, the enforcement methods that City shall use to effect compliance. 39. A judicial judicial declara declaration tion is is necessary necessary and appropri appropriate ate at this time time under under the the circumst circumstances ances in in order that Plaintiff may ascertain his rights and duties under Ordinance 2012-3, rather than expose himself to possible criminal and/or civil sanctions for non-compliance.

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THIRD CAUSE OF ACTION

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For Declaratory Relief; Ord. 2012-3 is void because it was enacted contrary to state law

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Plaintiff Plaintiff incorp incorporate oratess by referen reference ce the allegation allegationss set forth in the the previous previous paragraphs paragraphs..

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On or about about Decemb December er 15, 2011, 2011, Ordin Ordinanc ancee 2011-41 2011-41 was enact enacted ed by the Fresn Fresno o City

Council purportedly pursuant to Government Code Sec. 65858 (hereinafter referred to as “section 65858”).

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The ordinanc ordinancee was extended extended for 10 months, months, 15 days, days, through through the Council Council's 's passage passage of

Ordinance 2012-3 on or about January 26, 2012, also purportedly pursuant to section 65858.

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requirements of Government Code Secs. 65090 and 65091, and first hearing before the Fresno

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Planning Commission, as would otherwise be required for a text amendment to City zoning laws.

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By invoking invoking section section 65858, 65858, the the Fresno Fresno City City Council Council bypassed bypassed the the hearing hearing and notice notice

The general general purpose purpose of section section 65858 65858 is is to allow allow a local legislati legislative ve body to to adopt interim interim

urgency zoning ordinances prohibiting land uses that may conflict with a contemplated general  plan amendment or another land use measure proposal which the legislative body is studying or intends to study within a reasonable period of time.

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Section Section 65858 expressly expressly provides provides that a city shall shall not not adopt adopt an interi interim m ordinance ordinance unless unless it

makes a finding that the approval   of of additional subdivisions, building permits or entitlements would result in a current and immediate threat to the public safety, health, or welfare.

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the processing or approval of business licenses, building permits, zoning variances or use permits

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for cultivation sites or other facilities operated by medical cannabis dispensaries or cooperatives.

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Pursuant Pursuant to Ordinance Ordinance 2007-42, 2007-42, at all all times times mentioned mentioned herein, herein, the City has not authorized authorized

7 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -

 

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47.

At all all times times mentioned mentioned herein, herein, Plaintif Plaintifff did not not request request from from the the City City nor apply for a use

 permit, variance, license or building permit for the cultivation cultivation of medical cannabis. 48.

In enacting enacting Ordinan Ordinances ces 2011-41 2011-41 and and 2012-3, 2012-3, the Fresno City Council Council failed failed to to make finding findingss

that the City's approval   of of building permits or other entitlements pertaining to the outdoor cultivation of medical cannabis by Plaintiff and other qualified patients and primary caregivers similarly situated would result in a current and immediate threat to the public safety, health, or welfare, such findings being expressly required by section 65858. 49.

An actual actual controv controversy ersy has arisen arisen and now now exists exists between between Plaintif Plaintifff and Defendants Defendants

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concerning their respective rights and duties in that Plaintiff contends the Fresno City Council

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made purported findings in Ordinances 2011-41 and 2012-3 that do not meet the statutory

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requirements for enacting an interim urgency zoning ordinance pursuant to section 65858; whereas

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Defendants dispute these contentions and contend that the interim urgency zoning ordinances were

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enacted in a manner consistent with section 65858 and with correct City Council findings. 50.

Plaintiff Plaintiff desir desires es a judici judicial al determina determination tion of of his rights rights and duties duties,, and a declar declaration ation as as to

whether Ordinances 2011-41 and 2012-3 were enacted consistent with section 65858 and all 14

applicable state laws, and, if so, the enforcement methods that City shall use to effect compliance. 15

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A judicial judicial declara declaration tion is is necessary necessary and appropri appropriate ate at this time time under under the the circumst circumstances ances in in

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order that Plaintiff may ascertain his rights and duties under Ordinance 2012-3, rather than expose

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himself to possible criminal and/or civil sanctions for non-compliance.

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RELIEF REQUESTED

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52. Wherefore, Wherefore, Plaintiff, Plaintiff, on on behalf behalf of himself himself and others others similar similarly ly situated, situated, prays judgment judgment as follows: 53.

For a declaration declaration that Ordina Ordinance nce 2012-3 2012-3 is unlawful, unlawful, void void and of of no force force and and effect; effect; and and

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In the the alternati alternative, ve, for a declarati declaration on that Ordinance Ordinance 2012-3 2012-3 shall shall not not be enforc enforced ed by the the

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Fresno Police Department, but by the Director of Development and Resource Management  pursuant to Article 6 of Chapter 10 of the Fresno Municipal Code; and

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injunction restraining and enjoining Defendants from enforcing, or threatening to enforce,

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Ordinance 2012-3 by any means, whether criminal, civil or administrative; and

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For issuan issuance ce of a temporary temporary restrainin restraining g order, order, prelim preliminary inary injunction, injunction, and permanen permanentt

8 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -

 

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In the the alternati alternative, ve, for issuance issuance of a temporary temporary restraini restraining ng order, order, prelim preliminary inary injunct injunction, ion, and and

 permanent injunction restraining and enjoining Defendants from enforcing, or threatening to enforce, any provision of Ordinance 2012-3 201 2-3 with agents or officers of the Fresno Police Department; and 57. 58.

For costs costs of of suit suit and att attorn orney ey fees fees here herein in incur incurred red;; and and For such such othe otherr and furt further her relief relief as as the the court court may may deem deem proper proper..

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Dated:

MICHAEL S. GREEN IN PRO PER

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By: _________________________________  Michael S. Green, In Pro Per

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VERIFICATION

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I, Michael Steven Green, am an individual plaintiff in the above-entitled action. I have read the

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foregoing complaint and know the contents thereof. The same is true of my own knowledge,

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except as to those matters that are therein alleged on information and belief, and as to those

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matters, I believe it to be true. I declare de clare under penalty of perjury under the laws of the State of

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California that the foregoing is true and correct. Executed in Fresno County, California, on this

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date.

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 ____________________ [date]

________________________________ ___________________________ _____ [signature]

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9 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF -