Tuesday, October 31, 2017
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C.A. Affirms Fine Imposed on Property Owners Whose Tenant Unlawfully Sold Marijuana
Says Lack of Knowledge of or Consent to Operations Doesn’t Bar Imposition Of Penalties Where Ordinance Creates Strict Liability
By a MetNews Staff Writer
The Fourth District Court of Appeal yesterday affirmed a $200,000 fine imposed on the owner and on the manager of property leased to a marijuana dispensary is an area not zoned for such a business, rejecting the defendants’ contention that they could not control activities, to which they had not consented, of the tenant.
They did have that power, Justice Gilbert Nares of Div. One wrote in an unpublished opinion, but at any rate, the City of San Diego in question created strict liability.
“As owners of a leased property, defendants have the legal authority to require a tenant to discontinue unlawful land use,” Nares said, “Code of Civil Procedure section 1161, subdivision 4, provides that a tenant’s use of a property for an unlawful purpose terminates the lease, and the landlord is entitled to repossess the property following service of three days’ notice to quit using unlawful detainer procedures.”
An effort was made to evict the tenant, but the manager testified that he had toured the premises with police and no marijuana was found, and that he was suing because city told him to do so. The tenant disclaimed engaging in marijuana sales, and the judge dismissed the action without prejudice.
Nuisance, Negligence Cases
Nares went on to say:
“Defendants further contend it was improper for the trial court to interpret the [municipal code] prohibitions as applying to them because they did not have possession and control of the land when the violation occurred and therefore did not ‘contribute’ to the violation. However, the cases defendants rely on to support their contention address a property owner’s liability under common law nuisance or negligence theories….The analysis of the scope of a property owner’s duty under those theories of liability depends on the extent of the property owner’s (1) knowledge of the circumstances and (2) control over the property, but such standards do not apply to the determination of a property owner’s liability for violation of strict liability zoning laws.”
L.A. County Ordinance
Nares pointed to the 2015 case of People v. Superior Court of Los Angeles County which interpreted an ordinance similar to that of the City of San Diego. There, Acting Justice Acting Justice Allan Goodman, a retired Los Angeles Superior Court judge sitting on assignment, declared that a lessor’s “claim that he lacked knowledge that there was a marijuana facility on the property lacks merit” because violation of the ordinance “is a strict liability offense.”
San Diego Superior Court Gregory W. Pollack, aside from imposing civil penalties of $200,000 on the defendants, granted the city a permanent injunction against use of the property for marijuana sales. A $700,000 fine of the tenant was mentioned in the opinion but was not in issue in the appeal.
The case is City of San Diego v. 1735 Garnet, D071332.
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