Opinion
E054506 Super.Ct.No. CIVDS1105426
08-22-2012
INLAND EMPIRE COLLECTIVE ASSOCIATION, Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO, Defendant and Respondent.
Law Offices of Angelina Venegas and Angelina Venegas for Plaintiff and Appellant. Jean-Rene Basle, County Counsel, and Kristina M. Robb and Adam E. Ebright, Deputy County Counsel, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed.
Law Offices of Angelina Venegas and Angelina Venegas for Plaintiff and Appellant.
Jean-Rene Basle, County Counsel, and Kristina M. Robb and Adam E. Ebright, Deputy County Counsel, for Defendant and Respondent.
I. INTRODUCTION
Plaintiff Inland Empire Collective Association (IECA) appeals from the dismissal of its complaint against the County of San Bernardino (the County) following the trial court's sustaining the County's demurrer without leave to amend. In its complaint, IECA sought damages, declaratory relief, and injunctive relief, alleging that County ordinances that banned medical marijuana dispensaries unlawfully abrogated the rights of patients under the Compassionate Use Act (CUA), approved as Proposition 215 and codified in Health and Safety Code section 11362.5 and the Medical Marijuana Program Act (MMPA) (§§ 11362.7-11362.83). IECA contends the trial court erred in ruling that the CUA and the MMPA did not preempt the County's ordinance banning medical marijuana dispensaries.
In this opinion, we use the term "medical marijuana dispensaries" broadly to include cooperatives, collectives, and dispensaries, despite any technical differences that may exist between them.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
IECA is a California nonprofit mutual benefit corporation, organized by its member patients as a nonprofit collective to facilitate collaborative efforts of its members, including patients and caregivers, in connection with dispensing medicinal marijuana.
In June 2009, the San Bernardino County Board of Supervisors (the Board) adopted Urgency Interim Ordinance No. 4083, which established a temporary moratorium on the issuance of permits for the establishment of medical marijuana dispensaries. The temporary moratorium was extended in August 2009 and June 2010 with the adoption of Urgency Interim Ordinance Nos. 4086 and 4110. On April 5, 2011, the Board adopted Ordinance No. 4140 amending Title 8 of the San Bernardino County Code of Ordinances (County Code) to include section 82.02.070 entitled, "82.02.070 Medical Marijuana Dispensaries, Registration, Outdoor Cultivation." (Boldface omitted.) That section provides:
"(a) Notwithstanding Section 82.02.030(a)(3), titled "Similar and Compatible Use May be Allowed," in no event shall a medical marijuana dispensary as defined in Section 810.01.150 be considered a permitted or conditionally permitted use in any land use zoning district. A medical marijuana dispensary is prohibited in all land use zoning districts, as those may be amended from time to time, and no permits of any type shall be issued therefor. This section shall not affect the right to possess, use or cultivate marijuana for medicinal purposes as is presently authorized or prohibited by the laws of the State of California as set forth in the Health and Safety Code, Penal Code, or other state law, or by any federal law.
"(b) Before commencing the cultivation and/or distribution of medical marijuana, operators of those facilities listed under Section 810.01.150(q)(2) shall register with Environmental Health-Land Use Services and renew said registration on an annual basis. Upon said registration and each renewal thereof, the operator shall provide proof of a valid license as provided by Chapters 2, 3.01, 3.2, 8 and/or 8.5 of Division 2 of the Health and Safety Code.
"(c) No outdoor cultivation or growing of medical marijuana shall be permitted within the unincorporated areas of San Bernardino County. Any cultivation not inconsistent with California state law, or this Code, as such laws may be amended from time to time, shall at all times occur indoors, in a secure, locked, and fully enclosed structure that includes solid walls, and a ceiling, roof or top."
County Code section 810.01.150(q), entitled "Medical Marijuana Dispensary," (boldface omitted) provides: "(1) A medical marijuana dispensary is any facility or location, whether fixed or mobile, where marijuana is cultivated, made available, and/or distributed by or to three or more persons within the following categories: a primary caregiver, a qualified patient, or a patient with an identification card, as those terms are defined in Health and Safety Code Sections 11326.5 and 11326.7 et seq. as such sections may be amended from time to time." (Italics omitted.) The ordinance excepted from the definition of a medical marijuana dispensary (a) inpatient health facilities; (b) residential care facilities for persons with a chronic, life-threatening illness; (c) residential care facilities for the elderly; (d) home health agencies; and (e) hospices as defined by various sections of the Health and Safety Code. (County Code, § 810.01.150(q)(2)(a)-(e).) Finally, the ordinance defined "marijuana" to have the same meaning as in Health and Safety Code section 11018 and defined "medical marijuana" to mean "marijuana used for medicinal purposes in strict accordance with Health and Safety Code Sections 11362.5 and 11362.7 et seq." (Italics omitted.)
Meanwhile, the County's code enforcement department issued numerous citations to IECA under County Code section 82.02.020 ("General Requirements for Development and New Land Uses") on the ground that IECA's "'land use and/or structure'" was out of compliance under the then-effective Ordinance No. 4110, and that IECA was operating a medical marijuana dispensary without approval or permits from the planning department and, as such, was operating a public nuisance. IECA appealed the citations, and the administrative hearing officer upheld them.
On April 26, 2011, IECA filed a complaint for petition for writ of mandate and declaratory and injunctive relief, alleging that Ordinance No. 4140 was preempted by state law. On May 27, 2011, the County demurred to IECA's complaint on the ground, as relevant to this appeal, that the challenged ordinances were a valid exercise of the County's police power and were not preempted by the CUA or the MMPA. Following additional briefing, the trial court held a hearing on the demurrer and ruled that the County's ordinances were a valid exercise of the police power and were not preempted by state law. The trial court sustained the demurrer without leave to amend, and judgment of dismissal was entered.
III. DISCUSSION
A. Request for Judicial Notice
IECA has requested this court to take judicial notice of a December 21, 2011, letter by Attorney General Kamala D. Harris to the president pro tempore of the California Senate and the speaker of the Assembly. We reserved ruling for consideration with the appeal. The request is denied; we do not find the letter useful in the resolution of the issues before us.
B. Standard of Review
Our review of a judgment dismissing an action following the sustaining of a demurrer without leave to amend is de novo. "We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citations.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions, or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse." (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) In this case, whether IECA has stated a cause of action turns on a question of law: whether the County's ban on medical marijuana dispensaries is preempted by state law. We review that question de novo. (Millennium Rock Mortgage, Inc. v. T.D. Service Co. (2009) 179 Cal.App.4th 804, 808-809.)
C. Preemption
IECA contends Ordinance No. 4140 conflicts with state law and is unconstitutional and void. Preliminarily, we note that our Supreme Court has granted petitions for review in cases raising issues of preemption of local ordinances regulating or banning the operation of medical marijuana dispensaries and related activities and standing to challenge such ordinances. (City of Riverside v. Inland Empire Patient's Health & Wellness Center, Inc. (2011) 200 Cal.App.4th 885 [Fourth Dist., Div. Two], review granted Jan. 18, 2012, S198638; Pack v. Superior Court (2011) 199 Cal.App.4th 1070, review granted Jan. 18, 2012, S197169; City of Lake Forest v. Evergreen Holistic Collective (2012) 203 Cal.App.4th 1413, review granted May 16, 2012, S201454.)
1. General Preemption Principles
The general principles governing state statutory preemption of local land use regulation are well settled. (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1150; City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1168 (Kruse).) "'If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.'" (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897 (Sherwin-Williams), quoting Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885.) Three types of conflict give rise to state law preemption: a local law (1) duplicates state law, (2) contradicts state law, or (3) enters an area fully occupied by state law, either expressly or by legislative implication. (Kruse, supra, at p. 1168; Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242.)
2. California Medical Marijuana Laws
In determining whether the County's ordinance banning medical marijuana dispensaries is preempted by state law, we first consider the scope and purpose of California's medical marijuana laws, specifically the MMPA and the CUA.
The declared purposes of the CUA were (1) "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of . . . any . . . illness for which marijuana provides relief" (§ 11362.5, subd. (b)(1)(A)); (2) "[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction" (§ 11362.5, subd. (b)(1)(B)); and (3) "[t]o encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana" (§ 11362.5, subd. (b)(1)(C)).
The CUA is narrow in scope—it provides a limited defense to prosecution for cultivation and possession of marijuana. (Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 929-930; Kruse, supra, 177 Cal.App.4th at p. 1170.) However, the CUA does not create a statutory or constitutional right to obtain marijuana or allow the sale or nonprofit distribution of marijuana by medical marijuana dispensaries. (Ross, supra, at p. 930; Kruse, supra, at pp. 1170-1171; People v. Urziceanu (2005) 132 Cal.App.4th 747, 773-774.)
In 2003, the Legislature added the MMPA for the purposes of "'[promoting] uniform and consistent application of the [CUA] among the counties within the state' and '[enhancing] the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.' [Citation.]" (County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 864 (Hill).) The MMPA "includes guidelines for the implementation of the [CUA]. Among other things, it provides that qualified patients and their primary caregivers have limited immunity from prosecution for violation of various sections of the Health and Safety Code regulating marijuana including [section 11570,] the 'drug den' abatement law." (Hill, supra, at p. 864, fn. omitted.)
With regard to "drug den" abatement, the MMPA "provides a new affirmative defense to criminal liability for qualified patients, caregivers, and holders of valid identification cards who collectively or cooperatively cultivate marijuana. [Citation.]" (Kruse, supra, 177 Cal.App.4th at p. 1171.) For instance, section 11362.775 of the MMPA provides: "Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570." In addition, section 11362.765 provides limited immunity for transporting, processing, administering, and cultivating medical marijuana.
These statutes criminalize possession of marijuana (§ 11357); cultivation of marijuana (§ 11358); possession of marijuana for sale (§ 11359); transportation of marijuana (§ 11360); maintaining a place for the sale, giving away, or use of marijuana (§ 11366); making available premises for the manufacture, storage, or distribution of controlled substances (§ 11366.5).
Section 11570 provides that premises used for unlawful manufacture, storage, or distribution of controlled substances are "nuisance[s] which shall be enjoined, abated, and prevented, and for which damages may be recovered . . . ."
Under article XI, section 7, of the California Constitution, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." Courts have interpreted the Constitution as "giv[ing] California [counties] broad and flexible power to promote the public welfare. [Citation.] The police power is an exercise of the sovereign right of the government to protect the lives, health, morals, comfort and general welfare of the people." (Richeson v. Helal (2007) 158 Cal.App.4th 268, 277.) " . . . 'Generally a municipal zoning ordinance is presumed [to] be valid . . . .'" (Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 713 [Fourth Dist., Div. Two].) IECA argues that, while cities and counties may zone where medical marijuana dispensaries may be located, the County cannot lawfully ban all medical marijuana dispensaries within its boundaries. This court thus must presume the County's ordinance banning medical marijuana dispensaries is valid unless IEPC demonstrates the ordinance is unlawful based on state law preemption of the zoning ordinance.
3. State Law Preemption of Local Law
We reject the proposition that local governments, such as the County, are preempted by the CUA and MMPA from enacting zoning ordinances banning medical marijuana dispensaries. The County's zoning ordinance does not duplicate, contradict, or occupy the field of state law legalizing medical marijuana and medical marijuana dispensaries. (See Kruse, supra, 177 Cal.App.4th at p. 1168; Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1242.)
a. Duplicative and contradictory rules
A duplicative rule is one that mimics a state law or is "'coextensive' with state law." (O'Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1067; see also Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1327 [Fourth Dist, Div. Two].) A contradictory rule is one that is inimical to or cannot be reconciled with a state law. (Habitat Trust for Wildlife, supra, at p. 1327; O'Connell, supra, at p. 1068.)
Ordinance No. 4140 regulating medical marijuana dispensaries does not "mimic" or duplicate state law and can be reconciled with the CUA and MMPA. As discussed above, the CUA is narrow in scope and merely provides medical marijuana users and care providers with limited criminal immunity for use, cultivation, and possession of medical marijuana. (Kruse, supra, 177 Cal.App.4th at p. 1170.) It does not create a constitutional right to obtain marijuana or allow the sale or nonprofit distribution of marijuana by medical marijuana cooperatives. (Id. at pp. 1170-1171.)
The MMPA merely implements the CUA and also provides immunity for those involved in lawful medical marijuana dispensaries. Neither the CUA nor the MMPA provides individuals with inalienable rights to establish, operate, or use medical marijuana dispensaries. The state statutes do not preclude local governments from regulating medical marijuana dispensaries through zoning ordinances. The establishment and operation of medical marijuana dispensaries is thus subject to local zoning and business licensing laws. There is nothing stated to the contrary in the CUA or MMPA. The CUA and MMPA do not expressly mandate that medical marijuana dispensaries shall be permitted within every city and county, nor do the CUA and MMPA prohibit cities and counties from banning medical marijuana dispensaries. The operative provisions of the CUA and MMPA do not speak to local zoning laws. (Kruse, supra, 177 Cal.App.4th at pp. 1172-1173, 1175.) Although the MMPA provides limited immunity to those using and operating lawful medical marijuana dispensaries, the MMPA does not restrict or usurp in any way the police power of local governments to enact zoning and land use regulations prohibiting medical marijuana dispensaries.
b. Expressly occupying the field
"'"[L]ocal legislation enters an area that is 'fully occupied' by general law when the Legislature has expressly manifested its intent to 'fully occupy' the area . . .”’” (Kruse, supra, 177 Cal.App.4th at p. 1169.) Here, the CUA and MMPA do not expressly state an intent to fully occupy the area of regulating, licensing, and zoning medical marijuana dispensaries to the exclusion of all local law.
In Kruse, the court stated that the CUA did not expressly preempt the city's zoning ordinance that temporarily prohibited medical marijuana dispensaries because "[t]he operative provisions of the CUA do not address zoning or business licensing decisions. The statute's operative provisions protect physicians from being 'punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes' (§ 11362.5, subd. (c)), and shield patients and their qualified caregivers from criminal liability for possession and cultivation of marijuana for the patient's personal medical purposes if approved by a physician (§ 11362.5, subd. (d)). The plain language of the statute does not prohibit the City from enforcing zoning and business licensing requirements applicable to defendants' proposed use." (Kruse, supra, 177 Cal.App.4th at pp. 1172-1173.)
The Kruse court further explained that the city's temporary moratorium on medical marijuana dispensaries was permissible because "[t]he CUA does not authorize the operation of a medical marijuana dispensary [citations], nor does it prohibit local governments from regulating such dispensaries. Rather, the CUA expressly states that it does not supersede laws that protect individual and public safety: 'Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others . . . .' (§ 11362.5, subd. (b)(2).) The CUA, by its terms, accordingly did not supersede the City's moratorium on medical marijuana dispensaries, enacted as an urgency measure 'for the immediate preservation of the public health, safety, and welfare.'" (Kruse, supra, 177 Cal.App.4th at p. 1173.)
The Kruse court also concluded the city's zoning ordinance was not expressly preempted by the MMPA. It noted, "The operative provisions of the MMP[A], like those in the CUA, provide limited criminal immunities under a narrow set of circumstances." (Kruse, supra, 177 Cal.App.4th at p. 1175.) Furthermore, "[m]edical marijuana dispensaries are not mentioned in the text or history of the MMP[A]. The MMP[A] does not address the licensing or location of medical marijuana dispensaries, nor does it prohibit local governments from regulating such dispensaries. Rather, like the CUA, the MMP[A] expressly allows local regulation. . . . Nothing in the text or history of the MMP[A] precludes the City's adoption of a temporary moratorium on issuing permits and licenses to medical marijuana dispensaries, or the City's enforcement of licensing and zoning requirements applicable to such dispensaries." (Ibid.) As in Kruse, the CUA and MMPA do not expressly preempt the County's ordinance regulating medical marijuana dispensaries, including banning them.
c. Impliedly occupying the field
The County's ordinance banning medical marijuana dispensaries is not impliedly preempted by state law since its ordinance does not enter an area of law fully occupied by the CUA and MMPA by legislative implication. (Kruse, supra, 177 Cal.App.4th p. 1168.) "'"[L]ocal legislation enters an area that is 'fully occupied' by general law when the Legislature has expressly manifested its intent to 'fully occupy' the area [citation], or when it has impliedly done so in light of one of the following indicia of intent: '(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the' locality [citations]." [Citation.]' [Citation.]" (Id. at p. 1169.)
This court rarely finds implied preemption: "We are reluctant to invoke the doctrine of implied preemption. 'Since preemption depends upon legislative intent, such a situation necessarily begs the question of why, if preemption was legislatively intended, the Legislature did not simply say so, as the Legislature has done many times in many circumstances.' [Citation.] '"In determining whether the Legislature has preempted by implication to the exclusion of local regulation we must look to the whole purpose and scope of the legislative scheme."' [Citation.] Indeed, preemption will not be implied where local legislation serves local purposes, and the general state law appears to be in conflict but actually serves different, statewide purposes. [Citation.] There is a presumption against preemption . . . ." (Garcia v. Four Points Sheraton LAX (2010) 188 Cal.App.4th 364, 374.)
d. Complete coverage
The subject matter of Ordinance No. 4140 banning medical marijuana dispensaries has not been "so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern . . . ." (Kruse, supra, 177 Cal.App.4th at p. 1169.) As stated in Kruse, neither the CUA nor MMPA "addresses, much less completely covers, the areas of land use, zoning and business licensing. Neither statute imposes comprehensive regulation demonstrating that the availability of medical marijuana is a matter of 'statewide concern,' thereby preempting local zoning and business licensing laws." (Kruse, supra, at p. 1175.) The Kruse court further noted that the CUA "does not create 'a broad right to use marijuana without hindrance or inconvenience' [citation], or to dispense marijuana without regard to local zoning and business licensing laws." (Ibid.)
e. State law tolerating local action
The CUA and MMPA do not provide "'"'general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action . . .’”’” (Kruse, supra, 177 Cal.App.4th at p. 1169; see also Sherwin-Williams, supra, 4 Cal.4th at p. 898.) Because the state statutory scheme (the CUA and MMPA) expresses an intent to permit local regulation of medical marijuana dispensaries, preemption by implication of legislative intent may not be found here. (Kruse, supra, at p. 1176.) In Kruse, the court explained that the CUA and MMPA did not preclude local action regarding medical marijuana, "except in the areas of punishing physicians for recommending marijuana to their patients, and according qualified persons affirmative defenses to enumerated penal sanctions. (§ 11362.5, subds. (c), (d), 11362.765, 11362.775.) The CUA expressly provides that it does not 'supersede legislation prohibiting persons from engaging in conduct that endangers others' (§ 11362.5, subd. (b)(2)), and the MMPA expressly states that it does not 'prevent a city or other local governing body from adopting and enforcing laws consistent with this article' (§ 11362.83)." (Kruse, supra, at p. 1176.)
In addition, after Kruse was decided, the Legislature added section 11362.768 in 2010. Section 11362.768 states: "(f) Nothing in this section shall prohibit a city, county, or city and county from adopting ordinances or policies that further restrict the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider. [¶] (g) Nothing in this section shall preempt local ordinances, adopted prior to January 1, 2011, that regulate the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider." With regard to this new provision, the court in Hill noted that "the Legislature showed it expected and intended that local governments adopt additional ordinances" regulating medical marijuana. (Hill, supra, 192 Cal.App.4th at p. 868.) As the Hill court noted regarding this statute, "If there was ever any doubt about the Legislature's intention to allow local governments to regulate marijuana dispensaries, and we do not believe there was, the newly enacted section 11362.768, has made clear that local government may regulate dispensaries." (Ibid.)The Hill court added that a local government may zone where medical marijuana dispensaries are permissible (id. at p. 870) and apply nuisance laws to medical marijuana dispensaries that do not comply with valid ordinances (id. at pp. 868, 870).
Preemption by implication of legislative intent may not be found here where the Legislature has expressed its intent to permit local regulation of medical marijuana dispensaries and where the statutory scheme recognizes local regulations. (Kruse, supra, 177 Cal.App.4th at p. 1176.)
f. Balancing adverse effects and benefits of local law
IECA has also not established the third indicium of implied legislative intent to "fully occupy" the area of regulating medical marijuana dispensaries. IECA has not shown that any adverse effect on the public from the County's ordinance banning medical marijuana dispensaries outweighs the possible benefit to the County. (Kruse, supra, 177 Cal.App.4th at p. 1169.) We recognize that the Legislature intended in enacting the MMPA to promote uniform application of the CUA and enhance access to medical marijuana through medical marijuana dispensaries. (See Historical and Statutory Notes 40, Pt. 2 West's Ann. Health & Saf. Code (2007 ed.) foll. § 11362.7, pp. 365-366; stats. 2003, ch. 875, §§ 1 & 3.) Nevertheless, nothing in the CUA or MMPA suggests that counties are required to accommodate the use of medical marijuana and medical marijuana dispensing by allowing medical marijuana dispensaries within every county. Nothing stated in the CUA and MMPA precludes counties from enacting zoning ordinances banning medical marijuana dispensaries within their jurisdictions. Furthermore, those who wish to use medical marijuana are not precluded from obtaining it by means other than at a medical marijuana dispensary in the County.
As concluded in Kruse, supra, 177 Cal.App.4th at page 1176, "neither the CUA nor the MMP[A] provides partial coverage of a subject that '"is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit"' to the City. [Citation.] '[A] local ordinance is not impliedly preempted by conflict with state law unless it "mandate[s] what state law expressly forbids, [or] forbid[s] what state law expressly mandates." [Citation.] That is because, when a local ordinance "does not prohibit what the statute commands or command what it prohibits," the ordinance is not "inimical to" the statute. [Citation.]' [Citation.] Neither the CUA nor the MMP[A] compels the establishment of local regulations to accommodate medical marijuana dispensaries. The City's enforcement of its licensing and zoning laws and its temporary moratorium on medical marijuana dispensaries do not conflict with the CUA or the MMP[A]." (See also Sherwin-Williams, supra, 4 Cal.4th at pp. 898, 902.)
IV. DISPOSITION
The judgment is affirmed. Costs are awarded to Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur: RAMIREZ
P.J.
CODRINGTON
J.