Fresno cannabis lawsuit - Memo of PAs
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SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO CENTRAL DIVISION – UNLIMITED CIVIL CASE
MICHAEL S. GREEN, and DOES 1 through 20, inclusive, Plaintiffs, 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 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX-PARTE APPLICATION BY PLAINTIFF FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PELIMINARY INJUNCTION SHOULD NOT ISSUE [C.C.P. Sec. 52.1(b), 526, 527; C.R.C. Rules 3.1201, 3.1202, 3.1203, 3.1204, and 3.1206]
HEARING 1130 O Street, Fresno, California 93721 DATE: May 1, 2012 TIME: 3:30 p.m. DEPT.: 403
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX-PARTE APPLICATION BY PLAINTIFF FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT BE ISSSUED I. INTRODUCTION On November 5, 1996, California voters passed Proposition 215, the Compassionate Use Act (referred to hereinafter as “CUA”), which decriminalized the possession, cultivation and use of marijuana by qualified patients where medical use has been recommended by a physician. In 2003, the California Legislature passed the Medical Marijuana Program Act (referred to hereinafter as “MMPA”) under the terms of Senate Bill 420. The express intent of the Legislature 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 order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. (2) Promote uniform and consistent application of the act among the counties within the state. (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (Stats. 2003, ch. 875, section 1, subd. (b)(1)-(3).) The MMPA added Health and Safety Code Sec. 11362.765, which provides that qualified patients, persons with valid identification cards, and the primary caregivers of qualified patients, shall not solely on the basis of that fact be subject to criminal sanctions for marijuana possession, cultivation, transportation or related acts prohibited under Health and Safety Code Secs. 11357, 11358, 11360, 11366, 11366.5 and 11570. The MMPA specifically addresses nuisance laws by proscribing in Health and Safety Code Secs. 11362.765 and 11362.775 the application of Secs. 11570, 11360, and 11366.5 to uses of property involving the individual and collective cultivation of medical marijuana. On or about December 15, 2011, the Fresno City Council enacted interim urgency Ordinance 2011-41, which banned the outdoor cultivation of medical cannabis in the City by qualified patients and primary caregivers. The ban was extended for 10 months, 15 days, through the Council's passage of Ordinance 2012-3 on or about January 26, 2012. The ordinance declares the outdoor cultivation of medical marijuana by Plaintiff and others similarly situated to be a nuisance per se, and each violation “also shall be deemed a misdemeanor.”
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II. A. ORDINANCE 2012-3 IS UNCONSTITUTIONAL BECAUSE, ON ITS FACE AND AS APPLIED, IT CONSTITUTES AN EX POST FACTO LAW RESULTING IN THE TAKING OF A VESTED PROPERTY INTEREST OF PLAINTIFF AND OTHER QUALIFIED PATIENTS SIMILARLY SITUATED WITHOUT DUE PROCESS A preliminary injunction may be granted to restrain the execution of an unconstitutional or invalid statute or ordinance (Conover v. Hall (1974) 11 Cal.3d 842, 849-850; Hillman v. Britton (1980) 111 Cal.App.3d 810, 826.). In Hillman, a Fresno municipal ordinance prohibited charitable or religious solicitations without a license. When plaintiffs engaged in charitable solicitations to support their church without first obtaining a license, they were threatened with criminal prosecution. Plaintiffs sought a preliminary injunction, which was denied by the court. On appeal, respondents contended plaintiffs lacked standing because they never applied for or been denied the license and they had not been arrested for violating the ordinance. The court concluded that plaintiffs had standing because the threat of imminent prosecution if they continued to solicit the charitable donations was an adequate showing of irreparable injury. (Ibid.). Just as in Hillman, Plaintiff herein may not have suffered arrest, fines or confiscation, yet, but should not have to continue to live under the threat of such actions by Defendants. Plaintiff and others similarly situated already have medical marijuana plants growing outdoors. Ordinance 2012-3 requires Plaintiff not to refrain from an activity, but requires Plaintiff and others similarly situated to remove or destroy their property and medicine, or to risk being in violation of the ordinance and to risk intrusion into their property by City officials and/or summary abatement. Plaintiff is at additional risk of enforcement by agents and officers of the Fresno Police Department and potential arrest and prosecution for a criminal misdemeanor. Plaintiff has incurred substantial financial cost to purchase, plant, fertilize, and cultivate a reasonable amount of medical cannabis outdoors at his residence. (Complaint, 4:12-15) Because Plaintiff has a statutory right to cultivate and possess medical cannabis, and because Plaintiff holds a vested property interest in his existing medical cannabis plants grown outdoors (Ibid.), Defendants should be enjoined from enforcing Ordinance 2012-3 and taking or destroying Plaintiff's property without proper due process. //
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B.
ENFORCEMENT OF ORDINANCE 2012-3 WOULD CAUSE IRREPARABLE HARM TO PLAINTIFF AND OTHER MEDICAL CANNABIS PATIENTS AND CAREGIVERS BY IMPOSING CRIMINAL AND CIVIL PENALTIES FOR THEIR STATE-AUTHORIZED CULTIVATION OF MEDICAL CANNABIS. An injunction may be granted when it appears by the complaint or affidavits (or
declarations) that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury to a party to the action (Code Civ. Proc. Secs. 526(a)(2), 2015.5; Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal. App. 3d 242; Smith v. Smith (1942) 49 Cal. App. 2d 716, 718-719.). The term "irreparable injury" means that species of damages, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other (Wind v. Herbert (1960) 186 Cal. App. 2d 276, 285.). This definition warrants the use of the injunctive power of the court against a wrong that a trial judge deems insufferable because it constitutes an overbearing assumption by one person of superiority and domination over the rights and property of others (Fretz v. Burke (1967) 247 Cal. App. 2d 741, 746.). Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction: (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449). “[T]he greater the ... showing on one, the less must be shown on the other to support an injunction.” (Butt v. State of California (1992) 4 Cal.4th 668, 678). Injunctive relief is particularly appropriate where constitutional rights are at issue, or a failure to grant an injunction will result in a multiplicity of suits. (Civil Code Sec. 52.1; Code of Civil Procedure Sec. 526, subd.(a)(6); Brock v. Superior Court (1939) 12 Cal.2d 605, 610; Novar Corp. v. Bureau of Collection & Investigative Serv. (1984) 160 Cal.App.3d 1, 5). Plaintiff is likely to prevail on the merits. The state Legislature has exempted qualified patients, primary caregivers and medical cannabis collectives from sanctions including nuisance actions. Accordingly, an ordinance declaring medical cannabis cultivation by collectives and dispensaries to be a nuisance per se in the City of Lake Forest was voided on appeal. “Here, the City's per se ban on medical marijuana dispensaries prohibits what the Legislature authorized in section 11362.775, namely a place for the lawful distribution of medical marijuana and, more
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generally, using property to grow, store, and distribute medical marijuana.” (City of Lake Forest v. Evergreen Holistic Collective (2012) 203 Cal.App. 4th 1413, 1445-46) “The contradiction is direct, patent, obvious, and palpable.” (Ibid.) In identical fashion, Health and Safety Code Sec. 11362.765 provides that individual patients and caregivers shall not be subject to criminal sanctions or nuisance actions for using property to grow or store medical cannabis. “...Sections 11362.765 and 11362.775 expressly negate section 11570 as a nuisance remedy against the medical marijuana activities identified in those sections.” (City of Lake Forest, supra, 203 Cal.App. 4th 1413, 1430) By imposing sanctions upon Plaintiff and other individuals similarly situated on the sole basis of their cultivation of medical cannabis, Ordinance 2012-3 directly conflicts with state law and is therefore void. A balancing of interests further supports the issuance of an injunction. Ordinance 2012-3 makes each violation a misdemeanor offense, punishable by a jail term of up to one year and/or fine not to exceed $1,000, and authorizes further remedies pursuant to Fresno Municipal Code Sec. 10-605(l). The injury that will be suffered by Plaintiff should the court not grant Plaintiff’s request includes, but is not limited to, the financial hardship already incurred in the planting, watering, fertilizing and outdoor cultivation of medical cannabis plants. If forced to destroy his plants, Plaintiff will suffer the ongoing loss of his lawful medicine for months to come. Plaintiff also faces potential fines, legal costs and jail time for each violation of Ordinance 2012-3. On balance, the City cannot claim any legitimate harm will result from the issuance of an injunction. For these reasons, and the law and reasoning set forth below, this court should grant Plaintiff’s request for a temporary restraining order and order to show cause why a preliminary injunction should not be granted during the pendency of this action. C. A PRELIMINARY INJUNCTION SHOULD ISSUE TO PRESERVE THE STATUS QUO, NAMELY PLAINTIFF’S RIGHT TO CULTIVATE MEDICAL CANNABIS OUTDOORS, OR ELSE PLAINTIFF WILL BE SUBJECTED TO POSSIBLE CRIMINAL AND/OR CIVIL SANCTION TO HIS GREAT DETRIMENT A preliminary injunction may be granted to preserve the status quo until a final determination of the merits of the action (Continental Baking Co. v. Katz (1968) 68 Cal. 2d 512, 528; People v. Black's Food Store (1940) 16 Cal. 2d 59, 62 ; O'Connell v. Superior Court (2006) 141 Cal. App. 4th 1452, 1471.).
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Preserving the status quo may encompass a court order that continues regular and usual procedures as well as an order that compels inaction (Fretz v. Burke (1967) 247 Cal. App. 2d 741, 746.). The City's enactment of Ordinances 2011-41 and 2012-3, coupled with the City's stated intent to permanently ban any and all outdoor cultivation of medical cannabis by Plaintiff and others similarly situated, is not a reasonable or lawful use of stopgap land-use regulation. Nor is it consistent with the MMPA, which authorized medical cannabis cultivation by individual patients and collectives in the City starting in 2004. “[T]his new law represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers.” (People v. Urziceanu (2005) 132 Cal.App.4th 747, 785.) Here, the court should grant Plaintiff’s application for a temporary restraining order and order to show cause why preliminary injunction should not issue because allowing Plaintiff to continue to cultivate and harvest medical marijuana outdoors, as authorized by state law, will maintain the status quo and will allow Plaintiff to retain his vested rights to grow and harvest valuable property, namely, his personal supply of medical cannabis. The imminent threat by City of arrest and prosecution, or other sanctions authorized by Ordinance 2012-3, for engaging in the lawful cultivation of medical marijuana constitutes an irreparable harm to Plaintiff, therefore satisfying the circumstances under which Plaintiff may file a complaint seeking injunctive relief, as provided by Code of Civil Procedure 527(c)(1). D. ORDINANCE 2012-3 IS VOID BECAUSE IT DECLARES OUTDOOR MEDICAL CANNABIS CULTIVATION TO BE A NUISANCE WHEN THE LEGISLATURE HAS DETERMINED THE ACTIVITIES IT AUTHORIZED FOR QUALIFIED PATIENTS AND PRIMARY CAREGIVERS, INCLUDING THE OUTDOOR CULTIVATION OF MEDICAL CANNABIS, DO NOT CONSTITUTE A NUISANCE California's Uniform Controlled Substances Act, incorporating the MMPA in its entirety, pre-empts defendant City from declaring the mere existence of medical marijuana cultivation to be a nuisance per se. "Our state Constitution allows cities and counties to enact and enforce local ordinances so long as they are 'not in conflict' with the state's 'general laws.' (Cal. Const., art. XI, sec. 7.) Any conflicting ordinance is preempted by state law and thus void." (O'Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1065).
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Health and Safety Code Sec. 11362.775 exempts qualified patients and primary caregivers who participate in collective or cooperative cultivation projects from criminal sanctions and nuisance actions. Thus, when the City of Lake Forest banned medical marijuana dispensaries by passing an ordinance declaring them to be nuisances per se, the ban was struck down on appeal. “... The City's purported per se nuisance bar against medical marijuana dispensaries directly contradicts the Legislature's intent to shield collective or cooperative activity from nuisance abatement 'solely on the basis' that it involves distribution of medical marijuana authorized by section 11362.775, and because the Legislature has determined the issue is a matter of statewide concern, the City's ban is preempted.” (Lake Forest, supra, 203 Cal.App. 4th 1413, 1444). In the same manner, Health and Safety Code Sec. 11362.765 exempts patients and caregivers who cultivate medical cannabis on an individual basis from criminal sanctions and nuisance actions. “Section 11362.765, part of the MMPA, similarly immunizes specified individual, rather than collective or group, activities including the administration of medical marijuana to a qualified patient, instructing qualified patients and their primary caregivers in 'the skills necessary to cultivate or administer marijuana for medical purposes,' and transporting or delivering a qualified patient's medical marijuana. (§ 11362.765, subd. (b)(1)-(3); see id., subd. (a) ['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.' (italics added)].) Thus, sections 11362.765 and 11362.775 expressly negate section 11570 as a nuisance remedy against the medical marijuana activities identified in those sections.” (Lake Forest, supra, 203 Cal.App. 4th 1413, 1430) Furthermore, because Health and Safety Code Sec. 11362.765 protects qualified patients and primary caregivers from the penal provisions of Health and Safety Code Sec. 11570, it also must supplant any civil remedies. The same principle applies to collective cultivation sites, as the court ruled in Lake Forest, “To give effect to the Legislature's inclusion of section 11570 among the penal provisions that section 11362.775 renders inoperative for collective or cooperative medical marijuana cultivation projects, we must conclude section 11362.775 also supplants the purely civil remedies afforded by section 11570. Any other construction renders section 11362.775's express reference to section 11570 mere surplusage, a result we must avoid.” (Lake Forest, supra, 203 Cal.App. 4th 1413, 1436, citing PacifiCare of California v. Bright Medical Associates, Inc. (2011) 198 Cal.App.4th 1451, 1468)
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Ordinance 2012-3 is further inconsistent with Health and Safety Code Sec. 11362.77, which exempts qualified patients and caregivers from criminal sanctions and nuisance actions for their authorized personal cultivation of up to six mature medical cannabis plants. Here, the express language of the invalid ordinance states that all outdoor cultivation of medical marijuana is prohibited in the City. Violations “shall be deemed a public nuisance pursuant to Fresno Municipal Code section 10-605(l), and also shall be deemed a misdemeanor...” (Ordinances 2011-41 and 2012-3, Secs. 3 (B) and (C).). The express language of the invalid ordinance indicates the Fresno City Council's intention to declare all outdoor cultivation of medical cannabis to be a nuisance per se and to impose criminal and/or civil sanctions for violations solely on the basis that Plaintiff and others similarly situated cultivate medical cannabis outdoors as authorized under state law. Yet, “It appears incongruous at first glance to conclude a city may criminalize as a misdemeanor a particular use of property the state expressly has exempted from 'criminal liability' in sections 11362.765 and 11362.775.” (Qualified Patients v. City of Anaheim (2010) 187 Cal. App. 4th 734, 754) Defendants are not authorized to impose cultivation restrictions upon Plaintiff more stringent than those imposed by the CUA and MMPA. In a case involving Fresno County ordinances imposing new operating conditions upon local scrap-metal dealers, the appellate court held, “Because the ordinances regulate in a more restrictive manner the very conduct regulated in state law, the ordinances impermissibly conflict with state law.” (Tosi v. County of Fresno (2008) 161 Cal.App.4th 799, 806, citing O'Connell, supra, 41 Cal.4th at p. 1075.) Civil Code Sec. 3482 provides, “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” Ordinance 2012-3 prohibits Plaintiff's outdoor cultivation of medical cannabis by declaring it to be a nuisance per se, even though it is expressly authorized by the CUA and Health and Safety Code Sec. 11362.765. Because the Legislature has authorized the cultivation of reasonable amounts of medical cannabis by qualified patients and primary caregivers, and because the Legislature has further declared that medical cannabis regulations are a matter of statewide concern, Ordinance 2012-3 is pre-empted. // // // //
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E.
ORDINANCE 2012-3 IS VOID BECAUSE IT WAS ENACTED AS AN INTERIM URGENCY ORDINANCE PURSUANT TO GOVERNMENT CODE SEC. 65858, BUT WITHOUT REASONABLE OR FACTUAL EVIDENCE TO SUPPORT THE COUNCIL'S FINDINGS THAT ZONING APPROVALS OR PERMITS POSED A CURRENT AND IMMEDIATE THREAT TO PUBLIC HEALTH AND SAFETY Pursuant to Government Code Sec. 65084, text amendments to the City's zoning ordinances
generally must follow the noticing and hearing provisions of Government Code Sec. 65854.1 Limited exemptions to noticing and hearing requirements are authorized by state law. Government Code Sec. 65858(c) provides, “The legislative body shall not adopt or extend any interim ordinance pursuant to this section unless the ordinance contains legislative findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat to public health, safety, or welfare.” (Emphasis added.) The express language of Ordinance 2011-41 states that “This Interim Urgency Ordinance No. [2011-41] is hereby adopted to protect the public health, safety and welfare and is adopted as an urgency measure pursuant to the provision of Government Code section 65858 ...” (Ordinance 2011-41, Sec. 5). Ordinance 2012-3 also was adopted pursuant to section 65858. Section 65858 expressly provides that a legislative body shall not adopt an interim ordinance unless it makes a finding that the approval of additional subdivisions, building permits, or other entitlements would result in a current and immediate threat to the public safety, health, or welfare. Although the Legislature could have tied adoption of an interim urgency ordinance to simple inquiries about development or zoning regulations, or the submission or processing of a development application, it chose to set the bar higher, restricting its application to situations where an approval of an entitlement of use was imminent. “Limiting the reach of an interim ordinance to those situations where actual approval of an entitlement for use is imminent is
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Government Code Sec. 65854: “The planning commission shall hold a public hearing on the proposed zoning ordinance or amendment to a zoning ordinance. Notice of the hearing shall be given pursuant to Section 65090 and, if the proposed ordinance or amendment to a zoning ordinance affects the permitted uses of real property, notice shall also be given pursuant to Section 65091.” Hearings before the Airports Land Use Commission also are required for amendments to any City zoning ordinance affecting properties within the ALUC planning boundary, pursuant to Sec. 21670(b) of the Public Utilities Code. - 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION
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consistent with the purpose of interim controls.” (Bldg. Indus. Legal Def. Found. v. Superior Court (1999) 72 Cal. App. 4th 1410, 1417-1418) Cases that have upheld the validity of urgency zoning ordinances adopted pursuant to section 65858 have involved situations where local agencies were faced with immediate threats of development. Here, Plaintiff did not request from the City nor apply for a business license, zoning variance, building permit or other entitlement for the cultivation of medical cannabis, nor does any administrative procedure exist by which Plaintiff could seek such approvals from City. Thus, the Fresno City Council cannot make factual, credible or reasonable findings that medical cannabis cultivation by Plaintiff poses a threat of development approvals that would permit the City to enact an interim urgency ordinance pursuant to section 65858. “We conclude Government Code section 65858 is clear. It authorizes a city to prohibit any uses which may be in conflict with a general plan being studied so long as the city makes a finding the approval of additional subdivisions and other entitlements of use would result in a current and immediate threat to the public health, safety, or welfare.” (Ibid.)(Italics added.) Article 11, Section 7 of the California Constitution and Government Code Sec. 37100 prohibit the enactment and enforcement of municipal laws that conflict with the general laws of the state. Ordinance 2012-3 is unconstitutional because the Fresno City Council did not follow the procedure required by Government Code Sec. 65858 for enactment of interim urgency zoning ordinances. Enforcement of the ordinance by the City would thus be contrary to state law. For all of these reasons, Plaintiff’s request should be granted.
Dated:
Respectfully submitted, MICHAEL S. GREEN IN PRO PER By: _________________________________ Michael S. Green, In Pro Per
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SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO CENTRAL DIVISION – UNLIMITED CIVIL CASE
MICHAEL S. GREEN, and DOES 1 through 20, inclusive, Plaintiffs, 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 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX-PARTE APPLICATION BY PLAINTIFF FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PELIMINARY INJUNCTION SHOULD NOT ISSUE [C.C.P. Sec. 52.1(b), 526, 527; C.R.C. Rules 3.1201, 3.1202, 3.1203, 3.1204, and 3.1206]
HEARING 1130 O Street, Fresno, California 93721 DATE: May 1, 2012 TIME: 3:30 p.m. DEPT.: 403
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX-PARTE APPLICATION BY PLAINTIFF FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT BE ISSSUED I. INTRODUCTION On November 5, 1996, California voters passed Proposition 215, the Compassionate Use Act (referred to hereinafter as “CUA”), which decriminalized the possession, cultivation and use of marijuana by qualified patients where medical use has been recommended by a physician. In 2003, the California Legislature passed the Medical Marijuana Program Act (referred to hereinafter as “MMPA”) under the terms of Senate Bill 420. The express intent of the Legislature 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 order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. (2) Promote uniform and consistent application of the act among the counties within the state. (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (Stats. 2003, ch. 875, section 1, subd. (b)(1)-(3).) The MMPA added Health and Safety Code Sec. 11362.765, which provides that qualified patients, persons with valid identification cards, and the primary caregivers of qualified patients, shall not solely on the basis of that fact be subject to criminal sanctions for marijuana possession, cultivation, transportation or related acts prohibited under Health and Safety Code Secs. 11357, 11358, 11360, 11366, 11366.5 and 11570. The MMPA specifically addresses nuisance laws by proscribing in Health and Safety Code Secs. 11362.765 and 11362.775 the application of Secs. 11570, 11360, and 11366.5 to uses of property involving the individual and collective cultivation of medical marijuana. On or about December 15, 2011, the Fresno City Council enacted interim urgency Ordinance 2011-41, which banned the outdoor cultivation of medical cannabis in the City by qualified patients and primary caregivers. The ban was extended for 10 months, 15 days, through the Council's passage of Ordinance 2012-3 on or about January 26, 2012. The ordinance declares the outdoor cultivation of medical marijuana by Plaintiff and others similarly situated to be a nuisance per se, and each violation “also shall be deemed a misdemeanor.”
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II. A. ORDINANCE 2012-3 IS UNCONSTITUTIONAL BECAUSE, ON ITS FACE AND AS APPLIED, IT CONSTITUTES AN EX POST FACTO LAW RESULTING IN THE TAKING OF A VESTED PROPERTY INTEREST OF PLAINTIFF AND OTHER QUALIFIED PATIENTS SIMILARLY SITUATED WITHOUT DUE PROCESS A preliminary injunction may be granted to restrain the execution of an unconstitutional or invalid statute or ordinance (Conover v. Hall (1974) 11 Cal.3d 842, 849-850; Hillman v. Britton (1980) 111 Cal.App.3d 810, 826.). In Hillman, a Fresno municipal ordinance prohibited charitable or religious solicitations without a license. When plaintiffs engaged in charitable solicitations to support their church without first obtaining a license, they were threatened with criminal prosecution. Plaintiffs sought a preliminary injunction, which was denied by the court. On appeal, respondents contended plaintiffs lacked standing because they never applied for or been denied the license and they had not been arrested for violating the ordinance. The court concluded that plaintiffs had standing because the threat of imminent prosecution if they continued to solicit the charitable donations was an adequate showing of irreparable injury. (Ibid.). Just as in Hillman, Plaintiff herein may not have suffered arrest, fines or confiscation, yet, but should not have to continue to live under the threat of such actions by Defendants. Plaintiff and others similarly situated already have medical marijuana plants growing outdoors. Ordinance 2012-3 requires Plaintiff not to refrain from an activity, but requires Plaintiff and others similarly situated to remove or destroy their property and medicine, or to risk being in violation of the ordinance and to risk intrusion into their property by City officials and/or summary abatement. Plaintiff is at additional risk of enforcement by agents and officers of the Fresno Police Department and potential arrest and prosecution for a criminal misdemeanor. Plaintiff has incurred substantial financial cost to purchase, plant, fertilize, and cultivate a reasonable amount of medical cannabis outdoors at his residence. (Complaint, 4:12-15) Because Plaintiff has a statutory right to cultivate and possess medical cannabis, and because Plaintiff holds a vested property interest in his existing medical cannabis plants grown outdoors (Ibid.), Defendants should be enjoined from enforcing Ordinance 2012-3 and taking or destroying Plaintiff's property without proper due process. //
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B.
ENFORCEMENT OF ORDINANCE 2012-3 WOULD CAUSE IRREPARABLE HARM TO PLAINTIFF AND OTHER MEDICAL CANNABIS PATIENTS AND CAREGIVERS BY IMPOSING CRIMINAL AND CIVIL PENALTIES FOR THEIR STATE-AUTHORIZED CULTIVATION OF MEDICAL CANNABIS. An injunction may be granted when it appears by the complaint or affidavits (or
declarations) that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury to a party to the action (Code Civ. Proc. Secs. 526(a)(2), 2015.5; Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal. App. 3d 242; Smith v. Smith (1942) 49 Cal. App. 2d 716, 718-719.). The term "irreparable injury" means that species of damages, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other (Wind v. Herbert (1960) 186 Cal. App. 2d 276, 285.). This definition warrants the use of the injunctive power of the court against a wrong that a trial judge deems insufferable because it constitutes an overbearing assumption by one person of superiority and domination over the rights and property of others (Fretz v. Burke (1967) 247 Cal. App. 2d 741, 746.). Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction: (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449). “[T]he greater the ... showing on one, the less must be shown on the other to support an injunction.” (Butt v. State of California (1992) 4 Cal.4th 668, 678). Injunctive relief is particularly appropriate where constitutional rights are at issue, or a failure to grant an injunction will result in a multiplicity of suits. (Civil Code Sec. 52.1; Code of Civil Procedure Sec. 526, subd.(a)(6); Brock v. Superior Court (1939) 12 Cal.2d 605, 610; Novar Corp. v. Bureau of Collection & Investigative Serv. (1984) 160 Cal.App.3d 1, 5). Plaintiff is likely to prevail on the merits. The state Legislature has exempted qualified patients, primary caregivers and medical cannabis collectives from sanctions including nuisance actions. Accordingly, an ordinance declaring medical cannabis cultivation by collectives and dispensaries to be a nuisance per se in the City of Lake Forest was voided on appeal. “Here, the City's per se ban on medical marijuana dispensaries prohibits what the Legislature authorized in section 11362.775, namely a place for the lawful distribution of medical marijuana and, more
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generally, using property to grow, store, and distribute medical marijuana.” (City of Lake Forest v. Evergreen Holistic Collective (2012) 203 Cal.App. 4th 1413, 1445-46) “The contradiction is direct, patent, obvious, and palpable.” (Ibid.) In identical fashion, Health and Safety Code Sec. 11362.765 provides that individual patients and caregivers shall not be subject to criminal sanctions or nuisance actions for using property to grow or store medical cannabis. “...Sections 11362.765 and 11362.775 expressly negate section 11570 as a nuisance remedy against the medical marijuana activities identified in those sections.” (City of Lake Forest, supra, 203 Cal.App. 4th 1413, 1430) By imposing sanctions upon Plaintiff and other individuals similarly situated on the sole basis of their cultivation of medical cannabis, Ordinance 2012-3 directly conflicts with state law and is therefore void. A balancing of interests further supports the issuance of an injunction. Ordinance 2012-3 makes each violation a misdemeanor offense, punishable by a jail term of up to one year and/or fine not to exceed $1,000, and authorizes further remedies pursuant to Fresno Municipal Code Sec. 10-605(l). The injury that will be suffered by Plaintiff should the court not grant Plaintiff’s request includes, but is not limited to, the financial hardship already incurred in the planting, watering, fertilizing and outdoor cultivation of medical cannabis plants. If forced to destroy his plants, Plaintiff will suffer the ongoing loss of his lawful medicine for months to come. Plaintiff also faces potential fines, legal costs and jail time for each violation of Ordinance 2012-3. On balance, the City cannot claim any legitimate harm will result from the issuance of an injunction. For these reasons, and the law and reasoning set forth below, this court should grant Plaintiff’s request for a temporary restraining order and order to show cause why a preliminary injunction should not be granted during the pendency of this action. C. A PRELIMINARY INJUNCTION SHOULD ISSUE TO PRESERVE THE STATUS QUO, NAMELY PLAINTIFF’S RIGHT TO CULTIVATE MEDICAL CANNABIS OUTDOORS, OR ELSE PLAINTIFF WILL BE SUBJECTED TO POSSIBLE CRIMINAL AND/OR CIVIL SANCTION TO HIS GREAT DETRIMENT A preliminary injunction may be granted to preserve the status quo until a final determination of the merits of the action (Continental Baking Co. v. Katz (1968) 68 Cal. 2d 512, 528; People v. Black's Food Store (1940) 16 Cal. 2d 59, 62 ; O'Connell v. Superior Court (2006) 141 Cal. App. 4th 1452, 1471.).
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Preserving the status quo may encompass a court order that continues regular and usual procedures as well as an order that compels inaction (Fretz v. Burke (1967) 247 Cal. App. 2d 741, 746.). The City's enactment of Ordinances 2011-41 and 2012-3, coupled with the City's stated intent to permanently ban any and all outdoor cultivation of medical cannabis by Plaintiff and others similarly situated, is not a reasonable or lawful use of stopgap land-use regulation. Nor is it consistent with the MMPA, which authorized medical cannabis cultivation by individual patients and collectives in the City starting in 2004. “[T]his new law represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers.” (People v. Urziceanu (2005) 132 Cal.App.4th 747, 785.) Here, the court should grant Plaintiff’s application for a temporary restraining order and order to show cause why preliminary injunction should not issue because allowing Plaintiff to continue to cultivate and harvest medical marijuana outdoors, as authorized by state law, will maintain the status quo and will allow Plaintiff to retain his vested rights to grow and harvest valuable property, namely, his personal supply of medical cannabis. The imminent threat by City of arrest and prosecution, or other sanctions authorized by Ordinance 2012-3, for engaging in the lawful cultivation of medical marijuana constitutes an irreparable harm to Plaintiff, therefore satisfying the circumstances under which Plaintiff may file a complaint seeking injunctive relief, as provided by Code of Civil Procedure 527(c)(1). D. ORDINANCE 2012-3 IS VOID BECAUSE IT DECLARES OUTDOOR MEDICAL CANNABIS CULTIVATION TO BE A NUISANCE WHEN THE LEGISLATURE HAS DETERMINED THE ACTIVITIES IT AUTHORIZED FOR QUALIFIED PATIENTS AND PRIMARY CAREGIVERS, INCLUDING THE OUTDOOR CULTIVATION OF MEDICAL CANNABIS, DO NOT CONSTITUTE A NUISANCE California's Uniform Controlled Substances Act, incorporating the MMPA in its entirety, pre-empts defendant City from declaring the mere existence of medical marijuana cultivation to be a nuisance per se. "Our state Constitution allows cities and counties to enact and enforce local ordinances so long as they are 'not in conflict' with the state's 'general laws.' (Cal. Const., art. XI, sec. 7.) Any conflicting ordinance is preempted by state law and thus void." (O'Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1065).
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Health and Safety Code Sec. 11362.775 exempts qualified patients and primary caregivers who participate in collective or cooperative cultivation projects from criminal sanctions and nuisance actions. Thus, when the City of Lake Forest banned medical marijuana dispensaries by passing an ordinance declaring them to be nuisances per se, the ban was struck down on appeal. “... The City's purported per se nuisance bar against medical marijuana dispensaries directly contradicts the Legislature's intent to shield collective or cooperative activity from nuisance abatement 'solely on the basis' that it involves distribution of medical marijuana authorized by section 11362.775, and because the Legislature has determined the issue is a matter of statewide concern, the City's ban is preempted.” (Lake Forest, supra, 203 Cal.App. 4th 1413, 1444). In the same manner, Health and Safety Code Sec. 11362.765 exempts patients and caregivers who cultivate medical cannabis on an individual basis from criminal sanctions and nuisance actions. “Section 11362.765, part of the MMPA, similarly immunizes specified individual, rather than collective or group, activities including the administration of medical marijuana to a qualified patient, instructing qualified patients and their primary caregivers in 'the skills necessary to cultivate or administer marijuana for medical purposes,' and transporting or delivering a qualified patient's medical marijuana. (§ 11362.765, subd. (b)(1)-(3); see id., subd. (a) ['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.' (italics added)].) Thus, sections 11362.765 and 11362.775 expressly negate section 11570 as a nuisance remedy against the medical marijuana activities identified in those sections.” (Lake Forest, supra, 203 Cal.App. 4th 1413, 1430) Furthermore, because Health and Safety Code Sec. 11362.765 protects qualified patients and primary caregivers from the penal provisions of Health and Safety Code Sec. 11570, it also must supplant any civil remedies. The same principle applies to collective cultivation sites, as the court ruled in Lake Forest, “To give effect to the Legislature's inclusion of section 11570 among the penal provisions that section 11362.775 renders inoperative for collective or cooperative medical marijuana cultivation projects, we must conclude section 11362.775 also supplants the purely civil remedies afforded by section 11570. Any other construction renders section 11362.775's express reference to section 11570 mere surplusage, a result we must avoid.” (Lake Forest, supra, 203 Cal.App. 4th 1413, 1436, citing PacifiCare of California v. Bright Medical Associates, Inc. (2011) 198 Cal.App.4th 1451, 1468)
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Ordinance 2012-3 is further inconsistent with Health and Safety Code Sec. 11362.77, which exempts qualified patients and caregivers from criminal sanctions and nuisance actions for their authorized personal cultivation of up to six mature medical cannabis plants. Here, the express language of the invalid ordinance states that all outdoor cultivation of medical marijuana is prohibited in the City. Violations “shall be deemed a public nuisance pursuant to Fresno Municipal Code section 10-605(l), and also shall be deemed a misdemeanor...” (Ordinances 2011-41 and 2012-3, Secs. 3 (B) and (C).). The express language of the invalid ordinance indicates the Fresno City Council's intention to declare all outdoor cultivation of medical cannabis to be a nuisance per se and to impose criminal and/or civil sanctions for violations solely on the basis that Plaintiff and others similarly situated cultivate medical cannabis outdoors as authorized under state law. Yet, “It appears incongruous at first glance to conclude a city may criminalize as a misdemeanor a particular use of property the state expressly has exempted from 'criminal liability' in sections 11362.765 and 11362.775.” (Qualified Patients v. City of Anaheim (2010) 187 Cal. App. 4th 734, 754) Defendants are not authorized to impose cultivation restrictions upon Plaintiff more stringent than those imposed by the CUA and MMPA. In a case involving Fresno County ordinances imposing new operating conditions upon local scrap-metal dealers, the appellate court held, “Because the ordinances regulate in a more restrictive manner the very conduct regulated in state law, the ordinances impermissibly conflict with state law.” (Tosi v. County of Fresno (2008) 161 Cal.App.4th 799, 806, citing O'Connell, supra, 41 Cal.4th at p. 1075.) Civil Code Sec. 3482 provides, “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” Ordinance 2012-3 prohibits Plaintiff's outdoor cultivation of medical cannabis by declaring it to be a nuisance per se, even though it is expressly authorized by the CUA and Health and Safety Code Sec. 11362.765. Because the Legislature has authorized the cultivation of reasonable amounts of medical cannabis by qualified patients and primary caregivers, and because the Legislature has further declared that medical cannabis regulations are a matter of statewide concern, Ordinance 2012-3 is pre-empted. // // // //
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E.
ORDINANCE 2012-3 IS VOID BECAUSE IT WAS ENACTED AS AN INTERIM URGENCY ORDINANCE PURSUANT TO GOVERNMENT CODE SEC. 65858, BUT WITHOUT REASONABLE OR FACTUAL EVIDENCE TO SUPPORT THE COUNCIL'S FINDINGS THAT ZONING APPROVALS OR PERMITS POSED A CURRENT AND IMMEDIATE THREAT TO PUBLIC HEALTH AND SAFETY Pursuant to Government Code Sec. 65084, text amendments to the City's zoning ordinances
generally must follow the noticing and hearing provisions of Government Code Sec. 65854.1 Limited exemptions to noticing and hearing requirements are authorized by state law. Government Code Sec. 65858(c) provides, “The legislative body shall not adopt or extend any interim ordinance pursuant to this section unless the ordinance contains legislative findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat to public health, safety, or welfare.” (Emphasis added.) The express language of Ordinance 2011-41 states that “This Interim Urgency Ordinance No. [2011-41] is hereby adopted to protect the public health, safety and welfare and is adopted as an urgency measure pursuant to the provision of Government Code section 65858 ...” (Ordinance 2011-41, Sec. 5). Ordinance 2012-3 also was adopted pursuant to section 65858. Section 65858 expressly provides that a legislative body shall not adopt an interim ordinance unless it makes a finding that the approval of additional subdivisions, building permits, or other entitlements would result in a current and immediate threat to the public safety, health, or welfare. Although the Legislature could have tied adoption of an interim urgency ordinance to simple inquiries about development or zoning regulations, or the submission or processing of a development application, it chose to set the bar higher, restricting its application to situations where an approval of an entitlement of use was imminent. “Limiting the reach of an interim ordinance to those situations where actual approval of an entitlement for use is imminent is
1
Government Code Sec. 65854: “The planning commission shall hold a public hearing on the proposed zoning ordinance or amendment to a zoning ordinance. Notice of the hearing shall be given pursuant to Section 65090 and, if the proposed ordinance or amendment to a zoning ordinance affects the permitted uses of real property, notice shall also be given pursuant to Section 65091.” Hearings before the Airports Land Use Commission also are required for amendments to any City zoning ordinance affecting properties within the ALUC planning boundary, pursuant to Sec. 21670(b) of the Public Utilities Code. - 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION
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consistent with the purpose of interim controls.” (Bldg. Indus. Legal Def. Found. v. Superior Court (1999) 72 Cal. App. 4th 1410, 1417-1418) Cases that have upheld the validity of urgency zoning ordinances adopted pursuant to section 65858 have involved situations where local agencies were faced with immediate threats of development. Here, Plaintiff did not request from the City nor apply for a business license, zoning variance, building permit or other entitlement for the cultivation of medical cannabis, nor does any administrative procedure exist by which Plaintiff could seek such approvals from City. Thus, the Fresno City Council cannot make factual, credible or reasonable findings that medical cannabis cultivation by Plaintiff poses a threat of development approvals that would permit the City to enact an interim urgency ordinance pursuant to section 65858. “We conclude Government Code section 65858 is clear. It authorizes a city to prohibit any uses which may be in conflict with a general plan being studied so long as the city makes a finding the approval of additional subdivisions and other entitlements of use would result in a current and immediate threat to the public health, safety, or welfare.” (Ibid.)(Italics added.) Article 11, Section 7 of the California Constitution and Government Code Sec. 37100 prohibit the enactment and enforcement of municipal laws that conflict with the general laws of the state. Ordinance 2012-3 is unconstitutional because the Fresno City Council did not follow the procedure required by Government Code Sec. 65858 for enactment of interim urgency zoning ordinances. Enforcement of the ordinance by the City would thus be contrary to state law. For all of these reasons, Plaintiff’s request should be granted.
Dated:
Respectfully submitted, MICHAEL S. GREEN IN PRO PER By: _________________________________ Michael S. Green, In Pro Per
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