Court Decision Further Complicates California Medical Marijuana Policy
The trial court granted the City of Lake Forest?s (the City?s) request in this nuisance abatement proceeding for a preliminary injunction shutting down Evergreen Holistic Collective?s (Evergreen?s) medical marijuana dispensary based on a citywide ban against dispensaries. The trial court determined the City?s decision not to recognize dispensaries as a permitted property use, and to prohibit unpermitted uses, established a complete ban against the activity. Evergreen contends dispensaries are authorized by Health and Safety Code section 11362.775?s endorsement of “collective” and “cooperative” medical marijuana activities, and, therefore, what the Legislature has authorized, the City may not ban.
We conclude local governments may not prohibit medical marijuana dispensaries altogether, with the caveat that the Legislature authorized dispensaries only at sites where medical marijuana is “collectively or cooperatively . . . cultivate[d].” (Â§ 11362.775.) Section 11362.775 exempts qualified medical marijuana patients and their primary 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 it authorized at collective or cooperative cultivation sites, including a dispensary function, do not constitute a nuisance. Under the City?s municipal code, in contrast, violation of its zoning ordinances constitutes a per se, categorical nuisance. Under the City?s ban, a medical marijuana dispensary always constitutes a nuisance, though the Legislature has concluded otherwise. Because the City?s ban directly contradicts state law, it is preempted and furnishes no valid basis for a preliminary injunction in the City?s favor. Rather, the City must show Evergreen did not grow its marijuana on-site or otherwise failed to comply with applicable state medical marijuana law or permissible local regulations. Because the trial court granted the City?s injunction request solely on the basis of the City?s total ban, we must reverse the preliminary injunction and remand the matter for further proceedings.