By Cori Badgley

The Compassionate Use Act (Health and Safety Code § 11362.5) and the Medical Marijuana Program (Health and Safety Code § 11362.5) legalized the use and distribution of medical marijuana subject to specific restrictions outlined in the statutes. Many cities, such as the City of Claremont, do not have areas zoned to permit medical marijuana dispensaries. In City of Claremont v. Kruse (2009) (Case No. B210084), the Court of Appeal, Second Appellate District addressed whether the state statutes preempted the City from refusing to permit a medical marijuana dispensary and declaring it a nuisance. The court held that the City’s actions were not preempted and that the defendants continued operation of the medical marijuana dispensary constituted a nuisance.

Darrell Kruse, the defendant, went to the City to find out where he could open a medical marijuana dispensary. The City informed Kruse that he would have to seek an amendment to the City Code because the use was not enumerated as a permitted use anywhere within the City. Instead of pursuing amendment to the City Code, Kruse applied for a business license to operate the dispensary, which was denied by the City. Kruse appealed but the appeal was declared moot when the City imposed a moratorium preventing the approval of any permit or other entitlement establishing a medical marijuana dispensary. The moratorium allowed the City time to consider how to address medical marijuana dispensaries within the City’s boundaries. Despite the moratorium and the denial of the business license, Kruse opened his medical marijuana dispensary at a site within the City’s jurisdiction. The City cited Kruse numerous times for violations of the City Code, but Kruse would not stop operations. Finally, the City took Kruse to court and requested a temporary restraining order and a preliminary and permanent injunction to abate a public nuisance. The trial court agreed with the City and issued a permanent injunction. Kruse appealed.

The appellate court upheld the trial court’s holding. The court found that neither the Compassionate Use Act nor the Medical Marijuana Program preempted the City’s actions. Neither of the statutes expressly or impliedly preempted local regulations and the statutes were meant to be narrow. Each municipality has broad discretion to regulate actions or uses which affect public health, safety and welfare. The intent behind the state statutes was not to limit this power in any way. Therefore, the City’s actions were lawful.

The court also found that Kruse’s actions constituted a nuisance per se because the City Code did not permit such use and Kruse was operating without a valid business license. The court did note that Kruse could not challenge the lawfulness of the City’s rejection of his appeal of the denial of his business license because the statute of limitation had passed. Instead of pursuing legal recourse through the court system, Kruse opened his medical marijuana dispensary. Kruse could not come back now and assert these causes of action.

This case reminds us that the City’s police power is broad, and without an express or implied intent by the legislature to narrow this power, the City retains the power to declare what best protects the health and safety of its residents.

Cori M. Badgley is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.