On August 30, 2016, the Court of Appeal for the Second Appellate District affirmed a preliminary injunction in a nuisance abatement action brought on behalf of the People of the State of California against a Los Angeles-based medical marijuana collective doing business as “Weedland” and its principal. The People ex rel. v. FXS Management, Inc, __ Cal.App.4th __ (2016) (Case No. B263965).

Relying on a long and growing line of case law recognizing the substantial authority cities and counties have to regulate land use so as to prohibit the distribution of medical marijuana within their jurisdictions, the case turned on the plain terms of Los Angeles’ voter-approved Proposition D, the “Medical Marijuana Regulation and Taxation Ordinance.” Proposition D provides that within the City of Los Angeles, it is “unlawful to own, establish, operate, use, or permit the establishment or operation of a medical marijuana business . . . .” Proposition D broadly defines a “medical marijuana business” as “[a]ny location where marijuana is cultivated, processed, distributed, delivered, or given away to a qualified patient, a person with an identification card, or a primary caregiver.”

The People filed a complaint against defendants alleging violations of Proposition D and requesting a temporary restraining order or an order to show cause regarding a permanent injunction. Raising the ire of the Court of Appeal, the defendants failed to cite Proposition D’s definition of “medical marijuana business” in their opening brief (and they did not file a reply brief). Instead, they generally argued that a medical marijuana “business” is open to the public, while a medical marijuana “collective” only distributes marijuana to members. As a result, according to the defendants, Weedland is not regulated by Proposition D because the measure does not define or even mention collectives. In other words, according to the strained logic, “It depends on what the meaning of ‘is’ is.”

The Court of Appeal summarily rejected the defendants’ argument as meritless and held that Weedland falls squarely under the definition of a medical marijuana business as defined in Proposition D, because it is a location where marijuana is distributed or delivered to persons with identification cards. The Court agreed with the trial court that the People demonstrated a likelihood of prevailing on the merits, satisfying the first prong of the preliminary injunction test. When the plaintiff is a government entity, the courts presume the existence of public harm because “[w]here a legislative body has enacted a statutory provision proscribing a certain activity, it has already determined that such activity is contrary to the public interest.” The Court also agreed with the trial court that the defendants presented no evidence to indicate that medical marijuana patients who formerly received marijuana from Weedland are unable to receive marijuana from medical marijuana businesses in the City of Los Angeles that fall within certain exceptions to Proposition D or even from medical marijuana businesses outside the City’s jurisdiction. In addition, the Court noted that there is no statutory right to the purchase or sale of medical marijuana, and therefore local regulation of medical marijuana businesses cannot infringe upon any such right.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use.  Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  For more information, visit www.msrlegal.com.