Lawsuit Challenging Fresno County Medical Marijuana Ordinance Allowed to Proceed

Like many counties and cities in California, Fresno County exercised its land use power in 2014 to ban the dispensing, cultivation, and storage of medical marijuana in all its zoning districts and to classify any violation of this ban as a public nuisance. This part of Fresno’s land use ordinance was specifically in line with supreme court precedent, which had concluded the year before that state medical marijuana laws do not preempt local ordinances declaring that all dispensaries of medical marijuana are public nuisances per se. See City of Riverside v Inland Empire Patients Health & Wellness Ctr. (2013) 56 Cal. 4th 729, 738. But Fresno County went further; in the same ordinance, it also attempted to re-criminalize the dispensing, cultivation, and storage of medical marijuana, despite California state law clearly allowing persons using medical marijuana an affirmative defense against criminal prosecution in state court. See Health & S C §11362.5

Naturally, this bold move by the County raised eyebrows, and a medical marijuana patient challenged the entire ordinance. In Kirby v County of Fresno (2015) ___ CA4th ___, 2015 Cal App Lexis 1073, a court of appeal in the Fifth Appellate District issued a Solomon-type decision on the challenge, which had been dismissed by the trial court on a demurrer. The court of appeal in Kirby, following supreme court precedent, concluded that the ban on dispensing and cultivation adopted under the County’s authority to regulate land use did not conflict with California’s Compassionate Use Act (CUA) or its Medical Marijuana Program (MMP). But it concluded that the ordinance provision classifying the cultivation of medical marijuana as a misdemeanor was preempted by California's extensive statutory scheme addressing crimes, defenses and immunities relating to marijuana, and so it allowed the challenge to proceed on that narrow ground.

The court of appeal reasoned that the MMP’s prohibition of arrests manifest the Legislature’s intent to fully occupy (i.e., preempt) the area of criminalization and decriminalization of activity directly related to marijuana. As a result, the criminalization provision in the ordinance might be void because it was not consistent with the MMP. Consequently, plaintiff Kirby had stated a cause of action for the preemption of that part of the ordinance that provides a person violating the ordinance is guilty of a misdemeanor and subject to criminal penalties.

None of this was particularly surprising to attorneys who keep track of medical marijuana cases in California. One question is whether the much-heralded amendments to medical marijuana laws at the state level, passed last summer by the California legislature and signed by the governor, will change the land use powers of local governments regarding their ability to ban medical marijuana activity. The answer is clearly “No,” because part of the new law, the Medical Marijuana Regulation and Safety Act (MMRSA) (Bus & P C §19315(a)) effectively codified the decision in City of Riverside by expressly stating that the MMRSA does not “supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements.”


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