Maral v. City of Live Oak

Filed 11/26/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter) ----

JAMES MARAL et al., C071822

Plaintiffs and Appellants, (Super. Ct. No. CVCS120144)

v.

CITY OF LIVE OAK,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Sutter County, Perry Parker, Judge. Affirmed. John J. Fuery for Plaintiffs and Appellants. Rich, Fuidge, Morris & Lane, Inc., Brant J. Bordsen and Landon T. Little, for Defendant and Respondent.

In December 2011, the City of Live Oak (the City) passed an ordinance prohibiting the cultivation of marijuana for any purpose within the City. Plaintiffs sued, contending the ordinance violated the Compassionate Use Act (CUA) (Health & Saf. Code,1 § 11362.5), the Medical Marijuana Program (MMP) (§ 11362.7 et seq.), equal

1 Further undesignated statutory references are to the Health and Safety Code.

1

protection, and due process. The trial court sustained the City’s demurrer and dismissed the complaint. Plaintiffs appeal. Plaintiffs argue that the CUA and the MMP grant them the right to cultivate medical marijuana. As our Supreme Court recently held in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729 at page 753 (Inland Empire), the objectives of the CUA and MMP were “modest,” and those acts did not create a “broad right” to access medical marijuana. Inland Empire held that the CUA and the MMP do not preempt the authority of cities and counties to regulate, even prohibit, facilities that distribute medical marijuana. (Id. at p. 762.) The reasoning of Inland Empire applies to the cultivation of medical marijuana as well as its distribution, as both are addressed in the CUA and MMP. Accordingly, we conclude the CUA and MMP do not preempt a city’s police power to prohibit the cultivation of all marijuana within that city. We shall affirm. BACKGROUND The Ordinance On December 21, 2011, by a vote of 5-0, the City Council of the City adopted Ordinance 538 (Ordinance) regarding the cultivation and sale of medical marijuana within the city limits. The Ordinance added a new Chapter 17.17 to the Live Oak Municipal Code (LOMC). In adopting the ordinance, the City made several factual findings. It found that the cultivation of medical marijuana had significant impacts or the potential for significant impacts on the City. These impacts included damage to buildings, dangerous electrical alterations and use, inadequate ventilation, increased robberies and other crime, and the nuisance of strong and noxious odors. (LOMC, § 17.17.010, ¶ A.) The City also noted the limited scope of the CUA, which the City said was to provide a criminal defense, and of the MMP, which the City said was to establish a statewide identification program. (Id., ¶ B.) The City found that the CUA and MMP had not “facilitated” their stated goals