City of Auburn v. Sierra Patient & Caregiver Exchange
In recent years, there has been considerable litigation over the regulation, and in some cases the outright ban, of medical marijuana dispensaries. This case concerns an outright ban. However, as we explain post, to resolve this case, we need not reach the issue of whether a local government may ban marijuana dispensaries, an issue currently pending before our Supreme Court.[1]
The trial court granted the City of Auburn a preliminary injunction against Sierra Patient and Caregiver Exchange, Inc. and Richard Miller (collectively Miller), after Miller obtained a license for a flower shop, but opened a marijuana dispensary, forbidden by an Auburn ordinance. On appeal, Miller contends that Auburn’s dispensary ban is preempted by the Compassionate Use Act of 1996 (CUA) and the Medical Marijuana Program (MMP). (Health & Saf. Code, §§ 11362.5, 11362.7 et seq.)[2]
As we will explain, the record in this case, viewed in the light favorable to the trial court’s order, shows Miller committed a nuisance per se by surreptitiously opening a dispensary. Further, Miller did not establish irreparable harm. Because Miller’s business license violation independently shows a nuisance per se, we shall affirm the order granting Auburn a preliminary injunction to preserve the status quo pending trial.
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