Posted by: Patricia Salkin | December 21, 2015

CA Appeals Court Finds Provision in County Ordinance Classifying the Cultivation of Medical Marijuana as a Misdemeanor was Preempted by California’s Extensive Statutory Scheme

The County of Fresno adopted an ordinance that banned marijuana dispensaries, cultivation and storage of medical marijuana in all its zoning districts, and classified violations of the ordinance as both public nuisances and misdemeanors. Prior to the adoption of County’s ordinance, plaintiff Diana Kirby relied on the provisions of section 11362.77 to cultivate within her personal residence six or fewer marijuana plants for personal medicinal use. Kirby sued to invalidate the ordinance, alleging the ordinance created an unconstitutional conflict with the right to cultivate, possess and use medical marijuana provided by the Compassionate Use Act (CUA) ( Health & Saf.Code, § 11362.5) and the Medical Marijuana Program (MMP) (§ 11362.7 et seq.). The County demurred, arguing Kirby had failed to state a cause of action because its ordinance did not conflict with the narrowly drawn statutes. The trial court sustained the demurrer without leave to amend.

The court first noted that under the California preemption doctrine, a “conflict” exists if the local ordinance: duplicates the state statute, contradicts the statute, or enters an area fully occupied by general law. As to the duplication prong, state laws relating to crime and ordinances regulating land use address separate matters and, as a result, do not duplicate one another. Moreover, absent a clear indication of preemptive intent from the Legislature, the court found that local land use regulations are not preempted by state statute. Thus, it concluded that the ban on cultivation adopted under the County’s authority to regulate land use did not conflict with the CUA or the MMP. The County’s ban on marijuana dispensaries, cultivation and storage of medical marijuana was therefore upheld.

Kirby next contended that the criminalization provision in the ordinance conflicted with California law because it subjects people to arrest and criminal prosecution for cultivating and storing medical marijuana even if they have a valid patient identification card. The Legislature’s reference to “arrest and prosecution” in its declaration of intent supported this interpretation that the obligation of local law enforcement agencies and officers to not arrest individuals with valid identification cards also precludes them from prosecuting these protected persons under a local ordinance. Accordingly, the provision in the ordinance classifying the cultivation of medical marijuana as a misdemeanor was preempted by California’s extensive statutory scheme addressing crimes, defenses, and immunities relating to marijuana. Furthermore, the County could not rely on federal preemption to save the criminalization provision in FCC section 10.60.080(A) from being invalidated under state law since neither conflict nor obstacle preemption existed.

Kirby lastly argued that she and “all medical marijuana patients have an express right to cultivate at least six marijuana plants for personal use.” The court noted that the California Supreme Court addressed the wording of this provision by stating that the statute did not create a broad right to use marijuana without hindrance or inconvenience. Thus, the CUA did not create a right to cultivate medical marijuana beyond the reach of local land use regulations. Despite Kirby’s contention that the phrase “may possess” contained in subdivisions (a) and (f) of MMP section 11362.77 created a right to possess medical marijuana and the phrase “may also maintain” created a right to cultivate marijuana plants, any such “right” was found to be subject to “the authority of local governments to hinder, inconvenience or ban the cultivation of medical marijuana through zoning and land use ordinances”.

Accordingly, while the court concluded the ban on cultivation adopted under the County’s authority to regulate land use did not conflict with the CUA or the MMP, it held that Kirby stated a narrow cause of action challenging the validity of the criminalization provision. The dismissal relating to Kirby’s complaint was reversed and the superior court was directed to vacate its order sustaining the demurrer.

Kirby v County of Fresno, 2015 WL 7765893 (CA App. 12/1/2015)


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