In City of Corona v. Naulls, (— Cal.Rptr.3d —, 2008 WL 2916627, Cal.App. 4 Dist., July 30, 2008), a California Court of Appeal considered whether a trial court properly granted a preliminary injunction that ordered a medical marijuana dispensary to cease and desist its operations. The Court of Appeal held that the injunction was properly issued because the operation of the dispensary was a nuisance.
Ronald Naulls applied for a business license in the City of Corona (“City”) for his business enterprise, Healing Nations Collective (“HNC”), which is a medical marijuana dispensary. The preprinted business license application form used by City states that the municipal code requires all businesses to pay a business tax, but that the payment of the tax does not authorize the applicant to do business within the City. The form states, “All Businesses must comply with all city codes and must have the Department of Planning approval.” On the application, Naulls listed the proposed business activity as “Misc. Retail.” City’s customer service representative, who issued Naulls a receipt that served as a temporary business license, stated that she would not have issued a business license if she had known that the true nature of the business was “to cultivate, store, sell, and distribute marijuana.”
Naulls eventually told City’s planning director that he wanted to operate a marijuana dispensary. Two days later, the planning director notified Naulls that operating a marijuana dispensary is not a permitted land use under City’s zoning laws. The director also informed Naulls that City had held a special meeting the day before and enacted a moratorium on medical marijuana dispensaries. City’s legal counsel later notified Naulls that, because HNC had been unlawfully established, it was not exempt even though his business license application was filed before the moratorium. City directed Naulls to cease distributing marijuana.
City filed a lawsuit “alleging that the use of the premises at which HNC was operating was a nuisance per se” under City’s municipal code because Naulls operated the business in contravention of code sections relating to business licenses and zoning regulations. City asked for a preliminary injunction. The trial court granted City’s motion for preliminary injunction finding that, “because any nonenumerated use is presumptively prohibited under City’s municipal code, the operation of HNC constituted a nuisance per se.” The court ordered Naulls to cease and desist operating HNC.
The sole issue before the Court of Appeal was the validity of the preliminary injunction. The Court of Appeal found that preliminary injunction was valid.
When Naulls applied for the business license, he failed to indicate that he intended to operate a medical marijuana dispensary. He described the business as miscellaneous retail. If he had provided City with the correct information on his application, City would have denied the application. Naulls failed to comply with City’s requirements because he failed to take any steps to obtain approval to sell medical marijuana before he opened HNC. Because he violated City’s municipal code, HNC constituted a nuisance per se.
HNC is located within City’s Specific Plan, which “lists all of the uses within each zoning district, including permitted and nonpermitted uses.” City must select the appropriate zoning category for a business. Selling and distributing medical marijuana is not listed among the classified uses. There is a miscellaneous category, which provides for similar uses that are not listed, but which may be permitted by determination of the Planning Commission. Now, the municipal code expressly prohibits medical marijuana dispensaries. However, before the express prohibition, a business owner would have been required to seek a determination from the Planning Commission as to whether a medical marijuana dispensary was an acceptable use.
Naulls, however, did not give correct information on his application. If he had given correct information, a business license would not have been issued, and he would have been forced to either request an amendment to the Specific Plan or get a similar use determination.
When Naulls began operating HNC, it was in violation of various sections of the municipal code. Municipal Code section 1.08.020 provides, in part, “any condition caused or permitted to exist in violation of any of the provisions of this code is a public nuisance and may be, by this city, abated as such.” Naulls and HNC created a nuisance per se under this section and City, therefore, had the right to abate that nuisance.
The court concluded, “where a particular use of land is not expressly enumerated in a city’s municipal code as constituting a permissible use, it follows that such use is impermissible.” Because the medical marijuana dispensary was not a permitted use, operating HNC was impermissible. HNC was a nuisance per se, and was subject to abatement under the municipal code.