CA Appeals Court Holds Municipal Ordinance Prohibiting Renting Location to Unlicensed Cannabis Business was a Strict Liability Offense

This post was authored by Matthew Loescher, Esq.

Defendant Aaron Wheeler was prosecuted for committing the misdemeanors of renting a location to an unlicensed cannabis business (L.A. Mun. Code (LAMC), § 104.15, subd. (b)(4)) and maintaining a building for uses other than those for which the land was zoned based on the unlicensed store on the property (LAMC, § 12.21.A.1, subd. (a)). Despite concluding the crimes were strict liability offenses, and the People were therefore not required to prove the defendant knew the cannabis store was unlicensed to secure a conviction, the trial court ruled it would admit into evidence the defendant’s statements to police that he thought the business had a license. The court also denied the prosecutor’s request to preclude the jury from being given a mistake of fact instruction based on the defendant believing the store was properly licensed. The prosecutor announced she was unable to proceed and, following the dismissal of the case, filed a notice of appeal.

The relevant cannabis ordinance makes it a misdemeanor to, “lease, rent to, or otherwise allow an unlawful establishment to occupy any portion of a parcel of land” in order to engage in commercial cannabis activity without a city-issued temporary approval or license. (LAMC, § 104.15, subd. (b)(4).) The court noted that the enactment of provisions “lacking any reference to scienter which govern the same general subject matter, and use similar language, as an ordinance which was judicially interpreted to be a strict liability offense indicates the retail sales of cannabis provisions were intended to be strict liability crimes.” Thus, mistake of fact is not a defense to renting a location to an unlicensed cannabis business.

Here, because the defense was aimed at negating the intent or mental state required to commit a crime, it should not apply to strict liability crimes. Although in In re Jennings (2004) 34 Cal.4th 254, 17 Cal.Rptr.3d 645, 95 P.3d 906 held a mistake of fact defense could be viable even though the crime at issue was a strict liability offense, the opinion was determined to not stand for the proposition that the defense applied to all strict liability crimes. Jennings’ holding was construed as setting forth that a legislative body could intend to both make a crime a strict liability offense and allow a person to defend against a charge based on mistake of fact. Specifically, Jennings found a violation of Business and Professions Code section 25658, subdivision (c), qualified as such an offense. Nevertheless, the court found that given the differences between the alcohol offense and the LAMC ordinance, a misdemeanor of renting a location to an unlicensed cannabis business did not fall under Jennings purview.

People v Wheeler, 2023 WL 5622596 (CA App. 8/4/2023)