Regulation of Facilities Selling and Distributing Marijuana

“State law permitting medicinal marijuana use and distribution does not preempt ‘the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by nuisance actions.’” (Urgent Care Medical Services v. City of Pasadena (2018) 21 Cal.App.5th 1086, 1092 citing City of Vallejo v. NCORP4, Inc. (2017) 15 Cal.App.5th 1078, 1081-1082.)

Marijuana or cannabis are the same and are both controlled substances. Health and Safety Code § §11007, 11032 and 11054(d)(13). Where a city's municipal code does not list marijuana dispensaries as permitted use and the city states that nonpermitted uses are nuisances, the operation of marijuana dispensaries in that city is a nuisance per se. (See, Urgent Care Medical Services v. City of Pasadena (2018) 21 Cal.App.5th 1086.)

Whether to prohibit or to license marijuana sales and operations in a particular city is up to that city. Business and Professions Code §26200(a)(l). A city is constitutionally authorized to “make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” Cal. Const., art. XI, § 7. It may by legislative declaration state what activities or conditions may constitute a nuisance. Gov. Code, § 38771. Thus, a city council may, by ordinance, declare what it deems to constitute a public nuisance. (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1086.) An act or condition legislatively declared to be a public nuisance is a nuisance per se against which an injunction may issue without any proof of irreparable injury. (Id at 1086-1087.)

Regulation Related to the CUA and MMPA

“We have consistently maintained that the CUA and the MMP are but incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed.” (City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal. 4th 729, 738.) ”They merely declare that the conduct they describe cannot lead to arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the Health and Safety Code.” (Id.) ”Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders.” (Id.) We must therefore reject defendants' preemption argument, and must affirm the judgment of the Court of Appeal.” (City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal. 4th 729, 738.)