Issued by: N. Zeke Rivera

Urgent Care Medical Services, et al. v. City of Pasadena, and related actions
Second Appellate District, Division Four

The City of Pasadena Municipal Code expressly prohibits medical marijuana dispensaries. Pasadena’s Zoning Code states that any land or structure used contrary to the code is unlawful and a public nuisance. This Zoning Code is a “Permissive Zoning” Code whereby any land use not specifically listed or allowed in Pasadena’s Zoning Code is prohibited.

Even though Pasadena’s Municipal Code expressly prohibits medical marijuana dispensaries, several of them continued operating within the city. As a result, Pasadena sought an injunction to forbid the Dispensaries from conducting business. The Dispensaries filed a separate lawsuit against Pasadena essentially asking the court’s permission to continue operations.

In both lawsuits, the trial court found in favor of Pasadena. The Dispensaries appealed. On appeal, the Appellate Court also ruled in favor of Pasadena for several reasons.

First, Dispensaries unconvincingly raised the following sub-arguments: (a) Pasadena had no city ordinance explicitly declaring Dispensaries were a nuisance and an explicit declaration was required,
(b) Pasadena’s Municipal Code merely defined what is a medical marijuana dispensary, (c) Pasadena’s Permissive Zoning Code was insufficient to establish Dispensaries were a nuisance per se, and
(d) Pasadena failed to prove the Dispensaries constituted a nuisance and its City Council did not expressly declare Dispensaries were a nuisance.

The Appellate Court was not persuaded. It held: (a) Dispensaries cited no authority to support their contention that a nuisance must be enumerated in a city ordinance to be considered a nuisance per se,
(b) Pasadena’s Municipal Code stated medical marijuana dispensaries were not permitted and non-permitted uses are a nuisance, (c) courts have historically recognized “Permissive Zoning” as a valid method for prohibiting medical marijuana dispensaries, and (d) Pasadena was not required to prove the Dispensaries were a nuisance because proof is not required when something is declared a nuisance—which is what occurred in Pasadena’s Municipal Code when declaring medical marijuana dispensaries were not permitted and non-permitted uses are a nuisance.

Second, Dispensaries argued Pasadena ordinance 7018 (which prohibited medical marijuana dispensaries) was adopted in violation of the Pasadena Municipal Code requiring notice and a hearing. Government Code section 65009 requires that anyone challenging a legislative body’s decision bring their action within 90 days after the legislative body’s decision. Since Pasadena’s ordinance was adopted in 2005 and this case did not arise until 10 years later, Dispensaries had failed to challenge the ordinance within the 90-day period.

Finally, Dispensaries argued Pasadena was not authorized to initiate legal action by its City Council. However, Pasadena’s evidence demonstrated that the City Council did in fact authorize its City Attorney to initiate legal proceedings against medical marijuana dispensaries illegally operating within the city.

COMMENT

This case is important because it demonstrates how cities can ban medical marijuana dispensaries through their Municipal Codes and “Permissive Zoning” Codes. Pasadena has opted out of the tax bonanza offered by legalization of marijuana.

For a copy of the complete decision, see: Urgent Care Medical Services, et al. v. City of Pasadena

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