Posted by: Patricia Salkin | September 6, 2014

CA Appeals Court Upholds Nuisance Claim Against Medical Marijuana Dispensary and Holds Member Lacked Standing to Challenge City Ban

The city of Dana Point, California (“City”) filed a nuisance complaint against Beach Cities Collective (“Beach Cities or BCC”) and its operator David Lambert (“Lambert”) alleging four causes of action: (1) an abatement based on Beach Cities’ alleged failure to comply with state medical marijuana law; (2) a public nuisance based on lack of compliance with state medical marijuana law; and (3) a violation of the City’s zoning code, which did not provide for medical marijuana dispensaries and barred as a public nuisance uses not in the zoning code and (4) unfair business practices based on the state and local violations alleged in the first three causes of action.

Lambert refused to answer most questions concerning Beach Cities’ activities involving marijuana, invoking his Fifth Amendment right. The trial court granted the City summary judgment, but on appeal it was reversed and remanded. On remand, the court dismissed Lambert’s cross-complaint challenging the City’s ban on dispensaries because Lambert lacked standing. The trial court granted the City’s motion to exclude new evidence Lambert sought to introduce, and denied Lambert’s motion to exclude the City’s expert witness. The court sustained the City’s nuisance petition and Lambert appealed.

On appeal, Lambert contended the trial court erred by drawing adverse inferences from his invocation of the Fifth Amendment. The court stated that the California medical marijuana law afforded only an affirmative defense and Lambert and BCC bore a burden under the rule of “convenience and necessity” to produce and prove facts supporting the lawfulness of their admitted possession and distribution of marijuana.

Lambert argued the trial court could not infer BCC’s marijuana activities were unlawful based on BCC’s admitted shredding of documents or from Lambert’s silence at his deposition. The trial court had found no merit in their affirmative defense because his decision not to answer virtually all questions concerning marijuana did not evidence that BCC’s activities were lawful. Lambert also attempted to challenge admission of police testimony, and the City’s ban on dispensaries.

The trial court concluded Lambert lacked standing to contend state law preempted the City’s ban. The trial court relied on Traudt v. City of Dana Point , where an individual medical marijuana patient was not the proper party to challenge generally applicable zoning provisions because the Legislature invested the right to challenge in cooperative and collective groups and entities, not in individuals. Lambert argued that because he was not merely a member, but also the founder and an owner of the dispensary, he had standing. The court stated the point was moot in light of the Supreme Court’s decision in Inland Empire upholding local bans.

City of Dana Point v Beach Cities Collective, 2014 WL 1925778 (CA unrep. 5/14/2014)

The opinion can be accessed at:

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