City of Monterey v. Carrnshimba CA6
2013 WL 1780947, 215 Cal. App. 4th 1068, 156 Cal. Rptr. 3d 1 (2013)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The operation of a business not expressly identified as a permitted use within a municipality's permissive zoning ordinance constitutes a public nuisance per se. An operator cannot acquire a vested right to continue such an operation, even if it began before the municipality enacted a specific moratorium against that type of business.
Facts:
- In December 2009, Jhonrico Carrnshimba leased a premises in a 'C-2 Community Commercial District' in the City of Monterey.
- Carrnshimba applied for a business license, describing the business as a 'healthcare cooperative' and later as a retail store for health products, but failed to disclose his intent to operate a medical marijuana dispensary.
- Before the business license was formally issued, Carrnshimba began operating the dispensary, MyCaregiver Cooperative, Inc.
- The City of Monterey learned the true nature of the business through publicity generated by Carrnshimba.
- Fred Cohn, the assistant city manager, determined that a dispensary was not a permitted use under the City Code and sent Carrnshimba a letter denying the license application and demanding he cease and desist operations.
- Carrnshimba and MyCaregiver Cooperative continued to operate the dispensary despite the cease-and-desist order.
- Eight days after sending the cease-and-desist letter, the City of Monterey passed an ordinance declaring a temporary moratorium on the operation of any medical marijuana dispensaries.
Procedural Posture:
- The City of Monterey filed a complaint against Jhonrico Carrnshimba and MyCaregiver Cooperative, Inc. in trial court to enjoin a public nuisance.
- The trial court granted the City a preliminary injunction.
- The City filed a motion for summary judgment, which the appellants opposed.
- The trial court granted the City's motion for summary judgment and entered a judgment that included a permanent injunction against the dispensary's operation.
- Jhonrico Carrnshimba and MyCaregiver Cooperative, Inc. (appellants) filed a timely appeal of the judgment to the Court of Appeal of California, Sixth Appellate District (an intermediate appellate court).
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the operation of a medical marijuana dispensary constitute a public nuisance per se when the city's zoning ordinance does not expressly permit such a use, thereby allowing the city to enjoin its operation?
Opinions:
Majority - Márquez, J.
Yes, the operation of a medical marijuana dispensary constitutes a public nuisance per se under these circumstances. The court found that the dispensary's operation was an impermissible use under the City of Monterey's pre-moratorium zoning ordinance. The City's Code for the 'C-2' commercial district listed permitted uses in a permissive fashion, meaning any use not expressly enumerated is prohibited. Since a medical marijuana dispensary was not listed and did not reasonably fit into classifications like 'Personal Services,' 'Retail Sales,' or 'Pharmacies,' its operation violated the ordinance and was therefore a public nuisance per se. Furthermore, because the dispensary was an unlawful use from its inception, the operators acquired no vested right to continue their operation. Therefore, the City's subsequently enacted moratorium could also be properly applied to prohibit the dispensary's continued operation, providing an independent basis for finding it to be a public nuisance.
Analysis:
This case reinforces the broad authority of municipalities to control land use through permissive zoning ordinances. It establishes that if a zoning code lists permitted uses, any use not on the list is presumptively prohibited. The decision significantly impacts emerging or controversial industries, like medical marijuana dispensaries at the time, by clarifying that they cannot operate in zones where they are not explicitly authorized. The court's analysis of vested rights is also critical; it prevents operators from establishing a non-conforming use by beginning operations illegally before a city can pass specific prohibitory legislation.
