Metropolitan News-Enterprise


Thursday, December 1, 2011


Page 3


C.A. Revives Marijuana Sellers’ Challenge to Closings in San Jose




The Sixth District Court of Appeal yesterday revived a challenge by the operators of two San Jose medical marijuana dispensaries to city orders declaring them public nuisances and requiring that they close up.

The court did not reach the question of whether the city can ban San Jose Cannabis Buyer’s Collective, LLC and Pharmer’s Health Center Cooperative as incompatible with applicable zoning. It ruled instead that a Santa Clara Superior Court judge erred in denying their petition for writ of mandate on the ground they failed to exhaust administrative remedies.

The exhaustion-of-remedies doctrine does not apply, Presiding Justice Conrad Rushing wrote, because the operators were evicted by their landlords and thus had no opportunity to challenge the city’s actions administratively.

The San Jose Department of Planning and Code Enforcement issued the orders in January of last year, serving them on the operators and the landlords. The orders explained that the dispensaries were a nuisance because they were engaged in the sale or cultivation of marijuana for profit, in violation of state and federal law, and because the premises were located in a “Commercial Pedestrian Zoning District” in which medical marijuana distribution was not a permitted use.

After the landlords moved to force them from their premises, the operators filed their writ petition. Judge Kevin Murphy denied them a stay, and in August of last year denied the petition on exhaustion-of-remedies grounds.

Rushing, however, noted that under San Jose’s code, an administrative hearing is not automatically held in nuisance abatement cases, nor may the subject of an enforcement action simply request one. Instead, the subject must refuse to comply with the city’s order, thus forcing the department to set a hearing before the administrative appeals board.

In this case, the presiding justice explained, the department had no reason to set a hearing, since the landlords had effectively complied with the orders.

“Simply put, therefore, administrative review before the board was not a remedy that petitioners could have pursued for relief,” Rushing wrote. “In our view, the administrative review procedure under the Code constituted an illusory remedy for petitioners.”

The jurist cited Eye Dog Foundation v. State Bd. of Guide Dogs for Blind (1967) 67 Cal.2d 536, in which the operator of a school that trained guide dogs challenged the constitutionality of a statute allowing the state to revoke a school’s license if it lacked a licensed trainer. The court held that the foundation’s action for declaratory relief was not barred by the exhaustion doctrine, because it could not challenge the statute administratively in the absence of a formal administrative accusation by the state attorney general.

The case is SJCBC, LLC v. Horwedel, H036369.


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