City Of Claremont v. Kruse

100 Cal. Rptr. 3d 1 (2009)

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Nature of the Case

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Facts

D went to P and asked one of the city planners where he could open a medical marijuana dispensary. P's planning director told D it would not be permitted at any location within P and O would have to seek a code amendment to allow such use. D submitted an application for a business permit and business license. D described his proposed business as “Medical Cannabis Caregivers Collective and Information Service. Medical Marijuana Plants, Cuttings, Dried Flowers and Edibles.” The permit application signed by D contained the following: “All businesses must comply with P's Land Use and Municipal Code requirements. The proposed business shall also not conflict with any state or federal laws. Completing and filing this business permit application with P, and paying the required fees, does not constitute approval of the proposed business at the location indicated on the application. Approval from the Planning and Building Division[s], as well as the Police and Fire Departments are required before P approves a business permit. P will notify you of its decision in writing.” D signed the permit applications, announced his intent to open for business the following day and stated that P had six weeks to amend its zoning code to accommodate his proposed use. P notified D that P was denying his application for a business license and permit and would refund his application fees. D did not apply for a code amendment, but commenced operating CANNABIS on September 15, 2006. On September 21, 2006, D filed an administrative appeal. On September 26, 2006, P adopted an ordinance pursuant to Government Code section 65858 imposing a 45-day moratorium preventing the approval or issuance of any permit, variance, license, or other entitlement for the establishment of a medical marijuana dispensary in P. P extended the moratorium for 10 months 15 days, and on September 11, 2007, extended the moratorium for an additional year. P directed D to cease and desist from further activity at CANNABIS because he was operating without a business license. P sent a notice of violation, instructing D to cease and desist from operating CANNABIS and warning him that failure to comply by October 25, 2006, would subject him to an administrative citation. P issued an administrative citation. The court found D guilty of operating CANNABIS without a business license or permit and fined him for that violation. P filed this action to abate a public nuisance. P claimed that D's operation of CANNABIS without a business license was a public nuisance as a matter of law. The trial court issued a preliminary injunction order on April 4, 2007. Eventually, the court ruled that D's insistence on operating a medical marijuana dispensary within P without a business license or tax certificate, and in violation of the federal Controlled Substances Act (21 U.S.C. § 801 et seq.), constituted a nuisance per se, entitling the City to permanent injunctive relief. D appealed.