Kirby v. County of FresnoAnnotate this Case
Plaintiff filed suit to invalidate the County's ordinance banning marijuana dispensaries, cultivation and storage of medical marijuana in all its zoning districts. Plaintiff argued that the ordinance created an unconstitutional conflict with the right to cultivate, possess and use medical marijuana provided by the Compassionate Use Act (CUA), Health & Saf. Code, 11362.5, and the Medical Marijuana Program (MMP), Health & Saf. Code, 11362.7 et seq. The trial court sustained the County's demurrer without leave to amend. The court concluded that the ban on cultivation adopted under the County’s authority to regulate land use does not conflict with the CUA or the MMP, which do not expressly restrict local government’s authority over land use; in regard to implicit restrictions, the court recognized the statutory provisions contain some ambiguities, but applicable legal principles require a clear indication of the Legislature’s intent to restrict local government’s inherent power to regulate land use; the ambiguous provisions fail to provide such clear indication and therefore the court upheld the County's ban on marijuana dispensaries, cultivation and storage of medical marijuana; and the provision in the ordinance that classifies the cultivation of medical marijuana as a misdemeanor is preempted by California’s extensive statutory scheme addressing crimes, defenses and immunities relating to marijuana. Because plaintiff has stated a narrow cause of action challenging the validity of the criminalization provision, the court reversed the judgment of dismissal.