Browne v. County of Tehama
213 Cal. App. 4th 704
| Cal. Ct. App. | 2013Background
- Tehama County enacted Ordinance No. 1936 to regulate marijuana cultivation to protect public health and welfare; petitioners are qualified patients seeking to challenge the Ordinance; trial court sustained a demurrer and dismissed the petition; petitioners argued the Ordinance conflicts with the Compassionate Use Act (CUA) and Medical Marijuana Program (MMP) and violates privacy; the court addresses facial challenges, preemption, and local regulation authority under 11362.83; the Ordinance imposes plant limits (12–99 per parcel) and setbacks (1,000 feet near certain sites) and requires registration and owner consent; it is not a total ban on cultivation.
- Petitioners sought writ of mandate/prohibition to set aside the Ordinance, arguing it limits cultivation below CUA/MMP allowances and imposes extra restrictions; County argues local regulations are permissible absent conflict; the court reviews de novo preemption and facial constitutionality; AB 1300 amendments were considered supportive of local regulation of medical marijuana facilities but not cultivation; the opinion emphasizes the CUA provides limited immunities, not a broad right to cultivate without restrictions.
- The CUA provides limited immunity from possession/cultivation prosecutions for patients with physician approval; it does not create a broad right to cultivate without restraint; the MMP creates a registry and allows local regulation consistent with the article; the court distinguishes nuisance abatement and the “drug den” abatement law from immunities; the opinion ultimately holds the Ordinance does not create a total ban and is not preempted as to cultivation regulation.
- The MMP’s 2011 AB 1300 amendments expressly permit local regulation of the location/establishment of collectives, but do not mandate identical local controls for cultivation; the court relies on Hill and Kruse to uphold local regulation of cultivation sites within constitutional boundaries; the petitioners’ facial challenge fails because the Ordinance regulates location and scale rather than banning cultivation entirely.
- The disposition affirms the trial court’s judgment, with costs awarded to the County.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Ordinance conflict with the CUA or MMP? | Petitioners contend preemption and that limits conflict with CUA/MMP. | County argues local regulation allowed unless explicit conflict; MMP allows local regulation of dispensaries, not cultivation, but not preempted. | No preemption; Ordinance not in total conflict with CUA or MMP. |
| Is the Ordinance facially unconstitutional as an impermissible amendment or total ban on cultivation? | Petitioners claim it amends Prop. 215 and bans cultivation for some patients. | County asserts state law does not create unfettered rights; Ordinance regulates, not bans; not an unconstitutional amendment. | Ordinance is not a total ban and not an improper amendment; facial challenge fails. |
| Does the MMP preempt nuisance-based abatement of cultivation? | Immunity provisions preclude nuisance actions like abatement under 11570. | Immunity is limited to criminal liability; nuisance regulation remains permissible. | Immunity does not bar nuisance abatement when cultivation is not in compliance with Ordinance. |
| Is the Ordinance consistent with the MMP’s allowance for local regulation (11362.83)? | Ordinance exceeds MMP limits and burdens cultivation. | Local regulation of location and operation is permitted; Hill supports allowing more stringent local rules. | Ordinance held not inconsistent with MMP; local regulation permissible. |
Key Cases Cited
- People v. Mower, 28 Cal.4th 457 (Cal. 2002) (limited immunity under CUA; not a broad right to use marijuana)
- Urziceanu v. People, 132 Cal.App.4th 747 (Cal. App. 2005) (CUA creates limited defense, not a broad right to obtain marijuana)
- Ross v. RagingWire Telecommunications, Inc., 42 Cal.4th 920 (Cal. 2008) (CUA does not create broad right to unobstructed use; only immunities)
- Kruse, City of Claremont v. Kruse, 177 Cal.App.4th 1153 (Cal. App. 2009) (upholds local regulation of medical marijuana collectives; non-broad bans)
- Hill v. County of Los Angeles, 192 Cal.App.4th 861 (Cal. App. 2011) (local regulation of dispensaries; consistent with state law)
- Coffman Specialties, Inc. v. Department of Transportation, 176 Cal.App.4th 1135 (Cal. App. 2009) (facial challenges to regulations; heavy burden limiting preemption)
- Big Creek Lumber Co. v. County of Santa Cruz, 38 Cal.4th 1139 (Cal. 2006) (presumption against preemption; local regulation favored)
- Qualified Patients Assn. v. City of Anaheim, 187 Cal.App.4th 734 (Cal. App. 2010) (preemption discussion; nuisance abatement context)