Agenda - Planning Commission - 10/04/2012

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September 10, 2012 I Volume 6 I Issue 17 Zoning Bulletin visions of the CUA and MMPA as "limited criminal defenses from prosecution" for cultivation, sale, and purchase of marijuana. Noting that the County's ban was "not a criminal ordinance," but "merely a zoning restriction and ha[d] no impact on the criminal defenses provided by the CUA and MMP[A]," the court rejected the Dispensa- ries' preemption argument. The court also found that the County had " `authority to regulate the particular manner and location in which a business may operate' under the Constitution." The Dispensaries appealed. DECISION: Reversed, and matter remanded with directions. The Court of .Appeal, Second District, Division 1, agreed with the Dispensaries. It held that the County's complete ban on all "medical marijuana dispensaries," including collectives and cooperatives autho- rized under the Health and Safety Code § 11362.775, conflicted with, and was thus preempted by, California's medical marijuana laws. Ac- cordingly, the court reversed the order granting a preliminary injunc- tion to the County against the Dispensaries' operation. In so holding, the court explained that "[i]f otherwise valid local legislation conflicts with state law, it is preempted by such law and is void." A conflict exists, said the court, if the local legislation "dupli- cates, contradicts, or enters an area fully occupied by general law, ei- ther expressly or by legislative implication;" "Local legislation is `duplicative' of general law when it is coextensive therewith." "Similarly, local legislation is `contradictory' to general law when it is inimical thereto." Also, "local legislation enters an area that is `fully occupied' by general law when the Legislature has expressly mani- fested its intent to `fully occupy' the area, or when it has impliedly done [so] . . .." Here, the court found California's medical marijuana laws preempted the County's ban on medical marijuana dispensaries because: "the MMPA authorizes marijuana cooperatives, collectives, and dispensa- ries and "shields them from nuisance abatement actions." The court found that "the repeated use of the teiui `dispensary' throughout the statute and the reference in subdivision (e) of [§ 11362.768] to a `storefront or mobile retail outlet' " made it "abundantly clear that the medical marijuana cooperatives or collectives authorized by [§ ] 11362.775 are permitted by state law to perform a dispensary function." The court also found that the MMPA expressly afforded immunity to nuisance abatement actions under § 11570. Section 11570 provides for exclusively civil remedies to curb the use of property for illegal drug activity, such as injunctions, damages, closing a building, and selling fixtures and personal property therein. Moreover, the court pointed to Civil Code § 3482, which specifies "[n]othing which is done or maintained under the express authority of a statute can be deemed a 6 © 2012 Thomson Reuters