No Medical Marijuana in Claremont

No Marijuana Dispensary in Claremont, Court Rules

By Kenneth Ofgang, Staff Writer
Thursday, September 24, 2009

California's medical marijuana law does not require cities to
approve zoning for dispensaries, the Court of Appeal for this district
has ruled.

Div. Two, in an Aug. 27 decision certified Tuesday for publication,
affirmed Los Angeles Superior Court Judge Dan T. Oki's injunction
barring Darrell Kruse and Claremont All Natural Nutrition Aids Buyers
Information Service, or CANNABIS, from operating a dispensary anywhere
in the city of Claremont.

Kruse approached the city in July 2006 and told planners he wanted to
open the dispensary. He was told there was no provision for any such
business in the city's land use rules, so he would have to apply for
a code amendment.

Two months later, he returned to City Hall and applied for a business
permit and business license for a "medical cannabis caregivers
collective." City officials concluded that the proposed business was
not allowed, and the city manager sent Kruse a letter saying his
application was denied and his fees would be refunded, although he had
the right to either appeal to the City Council or ask for a code
amendment.

On Sept. 15, 2006, Kruse opened his dispensary. Six days later, he filed
an administrative appeal from the denial of his application.

On Sept. 26, the council adopted a 45-day moratorium on the issuance of
any permit or variance for the operation of a medical marijuana
dispensary in Claremont. As grounds for its enactment, the ordinance
recited the lack of any local rules governing where such dispensaries
could locate, the likelihood that having such a dispensary would
increase crime, the uncertain legal status of such businesses given that
they appear to violate federal law, and the need for careful study as to
how such businesses should be regulated.

The city manager then notified Kruse that his appeal was moot in light
of the moratorium, which was subsequently twice extended, through
September 2008. When Kruse refused to close the business, he was cited
for violation of the city's permit ordinance, convicted, and fined.

When he continued to operate, the city issued several more citations,
and filed suit for an injunction to close CANNABIS as a public nuisance.
Following trial, Oki ruled that Proposition 215, the Compassionate Use
Act that allows individuals to possess marijuana for medical purposes on
a doctor's recommendation, does not "mandate that municipalities
allow medical marijuana dispensaries to operate within their city
limits, or to alter the fact that land use has historically been a
function of local government under their grant of police power."

Because the business was operating without a license or permit, and in
violation of federal law, it was a nuisance per se that could be abated
by injunction, Oki added.

Justice Victoria Chavez, writing for the Court of Appeal, agreed.

The justice rejected the defendants' claim that the city could have
granted them a permit under any of a number of categories, including
"cigar/cigarette/ smoke shops" or "health, herbal, botanical
stores." She noted that the case before the court was not a permit
appeal, because Kruse chose to operate without a permit.

Because the dispensary is a nuisance per se, she added, there was no
requirement that the city demonstrate any actual harm.

The justice also swept aside the argument that Proposition 215 and the
Medical Marijuana Program Act preempt the moratorium. Nothing in either
enactment expressly or impliedly preempts local land use regulations
with respect to medical marijuana dispensaries, Chavez concluded.

Nor did the trial judge exceed his authority by granting a citywide
injunction, rather than one limited to the specific location, Chavez
said.

"Given defendants' disregard of the City's licensing and
zoning laws, and Kruse's stated intent to operate and actual
operation of CANNABIS in violation of those laws, the injunction issued
was not an abuse of the trial court's discretion," she wrote.

Attorneys on appeal were Burton Mark Senkfor and Allison B. Margolin for
Kruse, and Jeffrey V. Dunn, Sonia R. Carvalho and Marc S. Erlich for the
city.

The case is City of Claremont v. Kruse, 09 S.O.S. 5759.

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