Thursday, September 24, 2009
No Marijuana Dispensary in Claremont, Court Rules
By Kenneth Ofgang, Staff Writer
California’s medical marijuana law does not require cities to approve zoning for dispensaries, the Court of Appeal for this district has ruled.
Div. Two, in an Aug. 27 decision certified Tuesday for publication, affirmed Los Angeles Superior Court Judge Dan T. Oki’s injunction barring Darrell Kruse and Claremont All Natural Nutrition Aids Buyers Information Service, or CANNABIS, from operating a dispensary anywhere in the city of Claremont.
Kruse approached the city in July 2006 and told planners he wanted to open the dispensary. He was told there was no provision for any such business in the city’s land use rules, so he would have to apply for a code amendment.
Two months later, he returned to City Hall and applied for a business permit and business license for a “medical cannabis caregivers collective.” City officials concluded that the proposed business was not allowed, and the city manager sent Kruse a letter saying his application was denied and his fees would be refunded, although he had the right to either appeal to the City Council or ask for a code amendment.
On Sept. 15, 2006, Kruse opened his dispensary. Six days later, he filed an administrative appeal from the denial of his application.
On Sept. 26, the council adopted a 45-day moratorium on the issuance of any permit or variance for the operation of a medical marijuana dispensary in Claremont. As grounds for its enactment, the ordinance recited the lack of any local rules governing where such dispensaries could locate, the likelihood that having such a dispensary would increase crime, the uncertain legal status of such businesses given that they appear to violate federal law, and the need for careful study as to how such businesses should be regulated.
The city manager then notified Kruse that his appeal was moot in light of the moratorium, which was subsequently twice extended, through September 2008. When Kruse refused to close the business, he was cited for violation of the city’s permit ordinance, convicted, and fined.
When he continued to operate, the city issued several more citations, and filed suit for an injunction to close CANNABIS as a public nuisance. Following trial, Oki ruled that Proposition 215, the Compassionate Use Act that allows individuals to possess marijuana for medical purposes on a doctor’s recommendation, does not “mandate that municipalities allow medical marijuana dispensaries to operate within their city limits, or to alter the fact that land use has historically been a function of local government under their grant of police power.”
Because the business was operating without a license or permit, and in violation of federal law, it was a nuisance per se that could be abated by injunction, Oki added.
Justice Victoria Chavez, writing for the Court of Appeal, agreed.
The justice rejected the defendants’ claim that the city could have granted them a permit under any of a number of categories, including “cigar/cigarette/smoke shops” or “health, herbal, botanical stores.” She noted that the case before the court was not a permit appeal, because Kruse chose to operate without a permit.
Because the dispensary is a nuisance per se, she added, there was no requirement that the city demonstrate any actual harm.
The justice also swept aside the argument that Proposition 215 and the Medical Marijuana Program Act preempt the moratorium. Nothing in either enactment expressly or impliedly preempts local land use regulations with respect to medical marijuana dispensaries, Chavez concluded.
Nor did the trial judge exceed his authority by granting a citywide injunction, rather than one limited to the specific location, Chavez said.
“Given defendants’ disregard of the City’s licensing and zoning laws, and Kruse’s stated intent to operate and actual operation of CANNABIS in violation of those laws, the injunction issued was not an abuse of the trial court’s discretion,” she wrote.
Attorneys on appeal were Burton Mark Senkfor and Allison B. Margolin for Kruse, and Jeffrey V. Dunn, Sonia R. Carvalho and Marc S. Erlich for the city.
The case is City of Claremont v. Kruse, 09 S.O.S. 5759.
Copyright 2009, Metropolitan News Company