Agenda - Planning Commission - 07/18/2013 - Special

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May 25, 2013 I Volume 7 1 Issue 10 Zoning Bulletin tive relief. The City sought a permanent injunction to abate Conejo's continued operation as a public nuisance based on Conejo's: failure to obtain proper permits; failure to obtain a valid business license; viola- tion of Ordinance No. 08-355; and violation of Ordinance No. 10-379. The trial court entered judgment against Conejo on both Conejo's complaint and on the City's cross -complaint. The court permanently enjoined Conejo from "selling, providing, or otherwise making avail- able marijuana at or from" its location or any other location within the City. Conejo appealed. DECISION: Affirmed. Among other things, the Court of Appeal, Second District, Division 8, California, held that the City's ordinance banning medical marijuana dispensaries was not preempted by the CUA or the MMPA. In so holding, the court explained the law of preemption. The court explained that local legislation is preempted by state law and is therefore void when the local law: (1) duplicates state law; (2) contradicts state law; or (3) enters an area or field fully occupied by state law. The court further explained: "Local legislation is duplicative when it is coextensive with state law. . . . It is contradictory when it is `inimical to or cannot be reconciled with state law.' . . . [It] enters an area or field that is `fully occupied' by state law when the Legislature has either (1) expressly manifested its intent to fully occupy the area or (2) impliedly has done so." Here Conejo had argued: (1) the CUA and MMPA created a state right to cultivate, distribute, or otherwise obtain marijuana collectively, and thereafter to possess and use it, for medical purposes; and (2) the AHMC, through various provisions, conflicted with that right by prohibiting and/or punishing its exercise. The court rejected Conejo's argument. The court held that although both Ordinance No. 08-355 (AHMC § 9660) and Ordinance No. 10- 359 (AHMC § 6800) either directly or indirectly prohibited Conejo's operation as a medical marijuana dispensary, neither the CUA nor the MMPA created the right to distribute marijuana, and therefore the Or- dinances were not preempted by the CUA or MMPA. The court explained that the CUA immunized qualified patients and caregivers from criminal prosecution; it did not create a constitutional right to obtain marijuana or allow the sale or nonprofit distribution of marijuana by medical marijuana cooperatives. The CUA, then, "does not create a `right' to cultivate, distribute, or otherwise obtain medical marijuana collectively," said the court. "Rather, it simply provides two specifically identified groups of persons with a limited defense to two specific state criminal statutes. It does not mention, let alone authorize, 4 © 2013 Thomson Reuters