Posted by: Patricia Salkin | July 8, 2015

CA Appeals Court Upholds City’s Preliminary Injunction Enjoining the Operation of a Marijuana Dispensary

Defendant and appellant Collecticare Premier Inc. appealed from an order of the trial court granting the request of plaintiff and respondent City of Fontana for a preliminary injunction enjoining Collecticare from operating a medical marijuana collective dispensary. The City of Fontana Municipal Code (Municipal Code) section 30–7 expressly prohibits medical marijuana dispensaries from operating in the City: “ Notwithstanding any other provision of this Code, medical marijuana dispensaries shall be a prohibited use in all zones of the City.” Collecticare contended that the injunction was overly broad and infringed on its right as a collective to free speech and association.

In City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. 56 Cal.4th 729, the California Supreme Court held that the right of local governmental entities to exercise their police power by means of zoning ordinances to regulate or ban facilities that distribute medical marijuana is not preempted by any state law, including the Compassionate Use Act of 1996 (Health & Saf.Code, § 11362.5) and the Medical Marijuana Program (Health & Saf.Code § 11362.7 et seq.). Collecticare claimed that the City could not ban activities of a medical marijuana collective, such as educational activities or promoting the lawful use and medical benefits of marijuana to members of the collective. However, it was not cited for such promotional or educational activities, and the preliminary injunction enjoining it from using the property as a medical marijuana dispensary did not purport to prohibit such activities. Accordingly, the court found that the overbroad argument was unfounded.

City of Fontana v Collecticare Premier Inc., 2015 WL 3958715 (CA. App. unpub. 6/29/2015)

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