Local Government Can Retain Control Over Medical Marijuana Activities

In Kirby v. County of Fresno (December 1, 2015, Case No. F070056) __ Cal.App.4th __, the Fifth District Court of Appeal followed the lead of several other courts in affirming the ability of local jurisdictions to regulate, and even ban, medical marijuana dispensaries and cultivation. In Kirby, the Court upheld a Fresno County ordinance banning dispensaries and prohibiting personal cultivation and storage of medical marijuana. Specifically as to cultivation, the Court summarized that the right of any person to cultivate medical marijuana under state law “is subject to the authority of local government to hinder, inconvenience or ban the cultivation of medical marijuana through zoning and land use ordinances.” The Court did find, however, that State law preempted the County’s attempt to criminalize cultivation of medical marijuana, and the trial court erred in upholding the criminalization provisions of the County’s Ordinance. Given the trial court’s error as to this limited issue, the Court reversed the trial court’s dismissal of the action. Nonetheless, this case provides strong support for a local agency’s ability to regulate medical marijuana cultivation and dispensaries under its land use regulatory authority.

Case Background

In 2014, the County adopted an ordinance “to prohibit cultivation of medical marijuana in order to preserve the public peace, health, safety and general welfare of the citizens of Fresno County.” To accomplish this purpose, the Ordinance banned medical marijuana dispensaries, cultivation and storage of medical marijuana in all of its zoning districts. The County also classified violations of the Ordinance as both a public nuisance and a misdemeanor. The Ordinance limited use of medical marijuana to qualified medical marijuana patients at their personal residences only.

Diana Kirby, who is allegedly a "qualified patient," filed a lawsuit challenging the County's Ordinance. Kirby alleged the County's Ordinance created an unconstitutional conflict with her right to cultivate, possess and use medical marijuana as provided by California's Compassionate Use Act ("CUA") and the Medical Marijuana Program ("MMP"). She also alleged that the Ordinance's criminalization of cultivation and storage conflicted with the MMP.

The County challenged Kirby's complaint, and the trial court dismissed Kirby’s lawsuit without leave to amend. On appeal, the Court found the only portion of the Ordinance in conflict with state law was the Ordinance’s criminal prosecution component. The Court determined that Kirby stated a cause of action by alleging that the criminal provisions were preempted.  On this ground, and this ground only, the Court reversed the trial court’s decision dismissing the case, and sent it back to the trial court since Kirby had stated a cause of action on some theory.  The Court made clear that this was the only portion of the Ordinance that was problematic, and that it could be severed from the rest of the Ordinance.

Court’s Decision

In addressing the County's ban on cultivation, the Court concluded that neither the CUA nor the MMP expressly restrict a local government's authority over land use. Neither the CUA nor the MMP contain a clear indication of the Legislature's intent to restrict local government's inherent power to regulate land use. The Court accepted the County’s argument that there is no constitutional right to cultivate marijuana, and the limited immunity to prosecution under the CUA and MMP as to certain specified criminal laws does not immunize marijuana cultivation from the application of local land use regulation.

In its holding, the Court relied upon the California Supreme Court's decision in City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc., in which the Supreme Court concluded that the CUA and MMP did not preempt the city's ban on marijuana dispensaries, which was a valid exercise of a local jurisdiction's inherent authority to regulate land use. The Court also relied upon Maral v. City of Live Oak, in which the Third District Court of Appeal held a city's land use authority allowed it to ban the cultivation of medical marijuana, and state law did not provide any right to cultivate marijuana.

The Court also rejected Kirby’s argument that the ban on personal cultivation infringed her right to obtain and use medical marijuana under the CUA and the MMP. The Court reiterated that land use regulations are not preempted by the CUA or the MMP. Thus, the County can ban cultivation based upon its land use authority even if such ban impacts Kirby’s ability to obtain and use medical marijuana.

In contrast to the local government’s broad regulatory authority over land use, the State has an extensive statutory scheme addressing crimes, defenses and immunities relating to marijuana. Given this extensive state regulation, the Court found the Ordinance’s attempts to criminalize marijuana possession and cultivation conflicted with provisions of the MMP imposing an obligation on local officials not to arrest certain persons possessing or cultivating marijuana. The Court also determined that the MMP prohibits not only arrests but also prosecutions of specified persons under local ordinances or state law. Through the MMP, the State intended to fully occupy the area of criminalization and decriminalization of activity directly related to marijuana. Thus, State law pre-empted the criminal provisions of the County Ordinance. However, the Court noted the possibility that the failure to abate a public nuisance involving the cultivation of marijuana might still be prosecuted as a misdemeanor since such a failure to abate is recognized as a separate crime by the Legislature.

What This Means To You

This case is yet another in the string of cases demonstrating how narrowly the courts are construing the CUA and MMPA, and the deference they are affording local agencies in regulating land use.  All in all, it is a victory for local government in that they retain local control and the ability to choose for their communities whether they want to ban, regulate, allow, or even outright promote medical marijuana activities in their jurisdiction.

The Court did not address the recently enacted Medical Marijuana Regulation and Safety Act. Under the Act, local agencies retain the ability to regulate or prohibit medical marijuana activities, but only if they have a land use ordinance regulating such activities in place by March 1, 2016. Absent such an ordinance, the State Department of Food and Agriculture will be the sole licensing authority for medical marijuana cultivation applicants. It is therefore very important to review your land use ordinances well in advance of the March 1, 2016, deadline.


If you have any questions concerning this Legal Alert, please contact Jonathan Hobbs or William Chisum, or the attorney with whom you normally consult.