Posted by: Patricia Salkin | October 1, 2017

CA Appeals Court Reverses Denial of City’s Request for a Preliminary Injunction to Enjoin the Operation of a Medical Marijuana Dispensary within the City

The City of Vallejo’s zoning code does not recognize medical marijuana dispensaries as a permitted land use within city limits. Vallejo recently adopted Ordinance No. 1715 granting limited immunity to medical marijuana dispensaries that met various requirements, including the past payment of local business taxes. Defendant NCORP4, Inc., doing business as Nature’s Love Collective, was a nonprofit corporation operating a medical marijuana dispensary in Vallejo, managed by defendants Marc Hewitt and Gerome Tango. The city denied NCORP4’s application for limited immunity for failure to pay taxes, but the dispensary continued to operate. The city brought this action to enjoin the dispensary as a public nuisance. The trial court denied the city’s request for a preliminary injunction, concluding that the ordinance improperly conditioned immunity upon past payment of business taxes.

On appeal, the city argued that Ordinance No. 1715 did not impermissibly amend Measure C’s tax provisions to increase the penalty for nonpayment of taxes, but instead limited the sellers of medical marijuana in the city to a manageable number by preferring those who had demonstrated “a willingness and ability to comply with local law by paying the Measure C tax when the city enforced it … and to continue paying taxes as a condition of immunized operation.” The court noted that the constitutional prohibition on ex post facto laws was inapplicable to local ordinances regulating the operation of medical marijuana dispensaries. Furthermore, the court found that Ordinance No. 1715 did not amend Measure C’s tax provisions by retrospectively increasing the measure’s penalty provisions; instead, Ordinance No. 1715 was a separate ordinance that used past compliance with Measure C as one of several standards for granting dispensaries immunity from prosecution as a public nuisance. Moreover, Ordinance No. 1715 did not preclude late payment of taxes, but rather limited immunity to those medical marijuana dispensaries that “paid quarterly taxes from the date of opening until the city ceased accepting tax in February 2015.” Accordingly, the order denying the city’s motion for a preliminary injunction was reversed.

City of Vallejo v NCORP4, Inc., 2017 WL 4324890 (CA App. 1 Dist. 9/29/2017)

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