RIVERSIDE, CITY OF v. INLAND EMPIRE PATIENT'S HEALTH AND WELLNESS CENTER

Appellants' Opening Brief on the Merits

Cal.February 16, 2012

IN THE SUPREME COURTOF THE STATE OF CALIFORNIA City of Riverside, ) Case No. S198638 ) ) Plaintiff and Respondent, ) ) Vv. ) 3 SUPREME COURT INLAND EMPIRE PATIENTS HEALTH ) |LED and WELLNESS CENTERInc.; William J. ) Sump II; Lanny D. Swerdlow;etal. ) FEB 16 2012 Frederick K. Ohiricn Clerk Defendants /Appellants. _) a Deputv me APPEAL FROM ORDER GRANTING PRELIMINARY INJUNCTION Honorable John D. Molloy, Judge Superior Court Riverside County APPELLANTS' OPENING BRIEF ON THE MERITS © LAW OFFICES OF J. DAVID NICK J. David Nick (SB#157687) 345 Franklin Street San Francisco CA, 94102 Tel :(415) 552-4444 Fax:(415) 358-5897 Attorneyfor Appellants: — Inland Empire Patients Health and Wellness Center Inc., William Sump, Lanny Swerdlow, Angel City WestInc.. Maneleo Carlos, Filomena Carlos TABLE OF CONTENTS TABLE OF AUTHORITIES. .......00..00cccccccccceceseceueceessseesseesssesssvesseennPg.iii INTRODUCTION....0.....ccccccccccccsecscecececseeceeseeecseevsteessenssesenseseeeeees Pg. 1 PROCEDURAL BACKGROUDD............cccccccccseeseseeseceeeeseecesetereverseeees Pg. 2 STATEMENT OF APPEALABILITY...........0000cccccccccccceesseeececsseveseeeneeesPg. 2 FACTSooo. cccccccccceccceccecesecesseeecsceseeesecusscesseveseesnseevssseessevseenseeerenPg 2 HISTORICAL PERSPECTIVE. ......00...ccccccccccseceececceeseeveseveecevsvevseeeeensPg. 5 I. WHEN A CHALLENGEIS PRESENTED TO THE VALIDITY OF AN ORDINANCE RELIED UPON TO OBTAIN PRELIMINARY INJUNCTION A FINDING THE ORDINANCE IS UNLAWFUL REQUIRES REVERSAL OF THE PRELIMINARY INJUNCTION....0000000.. cece cceeceeecee eects eeeeeeeeenneeeeeeeeesaaeneeeesPg.7 II. LOCAL ORDINANCES & ENFORCEMENT PROCEDURES WHICH CONFLICT WITH STATE LAW ARE UNCONSTITUTIONAL AND VOID AS PREEMPTED......00000.0enecece eee e ene ee teed ne tee tee ua eeeseentesaaasinepeeseneeetes Pg.9 A. THE MEDICAL MARIJUANA PROGRAM ACT PERMITS THE DISPENSATION OF MARIJUANA BY ASSOCIATIONS AND COLLECTIVES FOR MEDICAL PURPOSES TO QUALIFIED PATIENTS AND EXEMPTS THEM FROM LOCAL NUISANCE ABATEMENT ORDINANCES.....0000 ceceete c ee eee enna eet eeee eenPg.9 B. MUNICIPALITIES MAY ONLY ENACT REGULATORY ORDINANCES"CONSISTENT" WITH THE MMP. THEIR AUTHORITY IS LIMITED UNDERSECTIONS 11362.83 AND 11362.768 TO "REGULAT[ING]"AND HAS NEVER BEEN EXTENDED TO PERMIT MUNICIPALITIES TO PROHIBIT CONDUCT PERMITTED BY THE MMP. oocccccccccccsesscscscssessevesscssesesssesscsceuesesseresesessneevevevesessesressesneresteveensPg. 13 C. LOCAL ORDINANCES THAT "CONFLICT" WITH STATE LAW ARE UNCONSTITUTIONAL AND VOID BY THE DOCTRINE OF PREEMPTION 2000...ccece cece eee cee nente rete tan te nntn ete eee tee aeeanenene eePg. 20 Ill. THE DECISION IN QUALIFIED PATIENT’S ASS’N V. CITY OF ANAHEIM, WHILE NOT EXPLICITLY DECIDING THE ULTIMATE ISSUE OF WHETHER THE MMP PREEMPTS MUNICIPAL ORDINANCES PROHIBITING CONDUCT APPROVED UNDER THE MMP,IT ABROGATED ARGUMENTSRAISED BY RESPONDENT IN SUPPORT OF A BAN ON ASSOCTATION/ COLLECTIVES...........0000000.eePg. 32 A. CLAREMONTV. KRUSE AND CORONA V. NAULLS ARE DISTINGUISHABLE FROM THE FACTSIN THE PRESENT CASE. Beeeeeeee ee ene nee ene e ea conden bennett ae tee ere cent tne e ene eeneeeeeeeae eee eeneneeeesPg. 32 B. THE DECISION IN ROSS V. RAGING WIRE IS NOT AUTHORITY PERMITTING MUNICIPALITIES TO COMPLETELY BAN ASSOCIATION/ COLLECTIVES...........0.0....0 2. cccceeeceececeeeeeeeeenetneeeensPg. 34 C. CITY OF CLAREMONTV. KRUSE CONFLICTS WITH VARIOUS HOLDINGS OF THE CALIFORNIA SUPREME COURT AND WITH HOLDINGS OF THE CALIFORNIA COURTS OF APPEAL AND LIKELY WAS WRONGLYDECIDED AS THE DECISION IS EXCLUSIVELY BASED ON CLEARLY WRONG ASSUMPTIONS AND PREMISES...o..c.0cccccccccscesesecseseseesessesessesscseesecsesecieseesersersstesessesteseevessnPg. 35 IV. RESPONDENT'S REFUSAL TO OBEY THE MMP ON THEBASIS THATIT VIOLATES THE FEDERAL CONTROLLED SUBSTANCE ACT, VIOLATES THE STATE CONSTITUTION'S PROHIBITION ON ADMINISTRATIVE AGENCIES REFUSAL TO OBEY LAWS WHEN THEY CONFLICT WITH FEDERAL LAW...200000000ccceeete eee eee eee nnn ces sega eter eeeseneeseeegneatessPg. 38 CONCLUSION....0.00.eecece e nee none otters tees ceneeebeepeeenenenegeene Pg. 39 WORD COUNT...000 00.ccece ee nee teen eee ne dente eee eens ene ene enn enteeeeeaees Pg. 40 PROOF OF SERVICE.....0.....0.. 0. cece cence een eee eee trees etna eaten tes Pg. 41 ii TABLE OF AUTHROITIES CASES: CALIFORNIA SUPREME COURT: Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 681... 2.2... cee cece cece cece cet nett eae neceeetnenenees eae eeneneesPg. 21 Arnold v. Sullenger (1927) 200 Cal. 632, 635-636... 0c cccccccec ene n eee nee eee e ee eee e ence ent e eee ea teeta ee eneesPg. 14 Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455.00...ccece cence eee ee eee eee een eens eens eee nenneeeeen ens Pg. 36 Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal. 4th 1139, 1156.00...ccece cece eee e eee ene eereeeeeenae eee esen easesPg. 13, 23, 24 California Grocers Assn. v. City of Los Angeles (2011) 52 Cal. 4th 177.00cece cee cence cee cee eee eee nee eee ceeeeeta eats entteneneneesPg. 27, 28 Candid Enter., Inc. v. Grossmont Union High SchoolDist. (1985) 39 Cal.3d 878, 885.0220... cece cece cece eee ee eee een ee eee ee teed eed nee teeta es Pg. 20 City of Torrance v. Transitional Living Centers (1982) 30 Cab.3d S16...icc ce cece ene eee n eet e eee eee eee e dene nt teaee ena ee teed Pg. 26, 27, 35 Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 293.0... ccc cece ce ccc ec ece nen ene eee eee nen ea eneeeeneeeteeeneneesPg. 27, 28, 31, 35 Commission on P.O.S.T. v Superior Court (2007) 42 Cal.4™ 278, 290........ccccececceceecceccesecceseeeeseuuceauaceeesteseeeseeseeeeeensPg. 18, 19 Ex parte Cambell (1887) 74 Cal.20, 27.2.0... cece cect eens cere eceeeeee ee eeeceenereneeteeaeenteeeeneges Pg. 8 Great Western Shows v. County of Los Angeles (2002) 27 Cal4th 853.000.cce cece ee nee eee cee ea ece tee seen eceoeeeeeeeseeestteetseeeees Pg. 22, 23 Greener v. W.C.A. Board (1993) 6 Cal.4™ 1028, 1038.........cccccecececccececceuvceccecaueceseeaeecetsuavessauesecseeceesensssPg. 38 Harris v. Capitol (1991) 52 Cal.3d 1142, L157... 2... ccc cece ccc ec cence nen een nen e eae eaten ene eee tae eta eeensnanee eensPg. 32 House v. Los Angeles County Flood Control Dist. (1944) 25 Cal. 2d 384, 388-389...cece ee cee eee tence eeecee een eee ee eeeneeesaateseseeaes Pg. 26 Morehart v. County of Santa Barbara (1994) 7 Cal.4™ 725, 747.0... ccccccesccccceseesenseecscececsseeeececcustteeeeeeentetasecentnieesensPg. 8 O’Connell v. Stockton (2007) 41 Cal.4™ 1061, 1068, 1069............cccccccceccececeucccecussecceceecerersesPg. 17, 28, 29, 36 iii People v. Anderson (1968) 70 Cal.2d 15 , 26... 0.00.cence cee e bene e ee nent eee eee beeen e beet t teeta Pg. 16 People v. Woodhead (1987) 43 Cal. 3d 1002, 1008.0...cece cent cee e eee ee ee tea eaten een eaeeeneeneeaenes Pg. 17 People v. Wright (2006) 40 Cal. 4th 81, 93.0...cetteeee ea cece e bene ee teeta n aes teaaee ee enesPg. 10 People ex rel Deukmejian v. County of Mendocino (1984) 36 Cal. 3d 476, 486-487... 0.0... ccc ce cee eee e renee eee eee ene ee cu eee rec eneenteerees Pg. 13, 29 People ex rel. Lungren v. Superior Court (1996) 14 Cal.4™ 278, 290.000... ccececcceeecceceececccececcuucecceuevecsaseecauesesaaeaneceseneneensPg. 18,37 Rossv. Raging Wire Telecommunications, Inc. (2008) 42 Cal.4920.000... ccceecececceceeeccecectecevececeuuverseeeecauetteeecsssnteaeesnneess Pg. 34, 35 San Diego Tuberculosis Assoc. v. East San Diego (1921) 186 Cal. 252...etererent ere n renee east bene nee ete tag saeeneesPg. 25, 26 Sherwin-Williams Co. v. City of Los Angeles 4 Cal.4th at pp. 897-898 o.oo.ccccette cee nee eee tee nance ence te tenet e eee eaPg. 21 Welton v. Los Angeles (1976) 18 Cal. 3do..cccee cee tence renee eee ee eee ee tea ene ea tans teen es eseteneeeereeeeaeesPg.7 CALIFORNIA COURT OF APPEAL: A & B Cattle Co. v. City of Escondido (1987) 192 CalApp.3d 1032, 1042.0... 0c cccc cece eee e ee eee eee eee nee tena eneeneneeeeenes Pg. 36 Bell v. D.M.V. (1993) 11 Cal.App. 4™ 304, 311 o..ccc ccc ccececcce ccc cc eens ceceeeeeeeesecuessuunenenneeenanens Pg. 11 Boyd v. Sierra Madre (1919) 41 Cal. App. 520, 524-525 000... ccc cece ee cee eee eee cen ene resent seen tee enesPg. 14 California Fed. Savings & Loan Assn.v. City of Los Angeles (1991) 54 Cal.3d 1,17.cece ccc ce rene nee eee eee eee cee ee eee eee eeeeeeeneeeeateeneneatas Pg. 24 Citizens to Save California (CSC) v. California Fair Political Practices Commission (CFPPC) (2006) 145 Cal.App4th 736.........cccccccccsee cece eee eee se eee eee ene eeen enone etenenteaentas Pg. 17 City of Claremont v. Kruse (2009) 177 Cal.App.4” 1153, 1160........cccccecceeececeesesseeceeueeseeeeessPg. 2, 32, 33, 34, 35, 36, 37 City of Corona v. Naulls (2008) 166 Cal.App4th 418 9.0...ce cece cence eee ences eee enseneneeseeeneneeneeaeesesPg. 32, 33, 34 City of Garden Grovev. Superior Court (2007) 157 Cal.App4th 355, 378, 385.00... ccc cece cece eee ee ce eea eee een tte tea een een ees Pg. 20, 39 City of Ontario v. Superior Court (1992) 12 Cal. App. 4th 894, 902.0000... cece cece eee e ee eee cee eeeneneteeeeeeeenenenenenPg. 16 iv County of Butte v. Superior Court (2009) 175 Cal.App.4" 729, 740...ccccccccccccceccesscecssteeeecensuteteesestseeceseeseeeseneeeyPg. 38, 39 County of Los Angelesv. Hill (2011) 192 Cal. App. 4th 861.0020...ence c cree ee cee eee ee ee enee tence eeeteeaeaeeeaes Pg. 19, 30 County of San Diego v. San Diego NORML (2008) 165 Cal.App.4™ 798.0000... .cccceccecessse cee eessseesececeesseessecsenecneeeeceteseneenenPg. 39 Doe v. City and County of San Francisco (1982) 136 Cal.App.3d 509, 513.202.2020. cece cece cence eee cee cee ece nec eeeeeetceaeseteeseneeeenensPg. 20 Efstratis v. First Northern Bank (1997) 59 Cal.App.4" 667, 671-672......cccccccccucecccecececcucceceecececeesueceseteuteseuetsteeesPg.7Pp Fiscal v. City & Co. of San Francisco (2008) 158 CalApp.4th 895, 911, 916... 0...e cee cee cence eee eee ce eee este ens Pg. 1, 20, 21, 22, 33 Jacobs Farm/Del Cabo,Inc. v Western Farm Service, Inc. (2010) 190 Cal.App.4” 1502, 1530.00...0c cece cece eee eee cece ee eee neeateteeseeseneenceecnenes Pg. 12 People v. Hochanadel (2009) 176 Cal.App.4™ 997, LOLL......ccccecccceccccceseesesseecenseeceseeecesceeeeeseeeeereeeeeyPg. 12 People v. Melton (1988) 206 Cal.App.3d 580, 592...eeee cece ence entero een senea sant eceneaeeeeneeeeesPg. 18 People v. Tilehkooh (2003) 113 Cal.App.4" 1433..0......ccccecceccscceccusseeceeeeeeeecesenecenesssensseeeceveeesnretaasPg. 39 People v. Urziceanu (2004) 132 Cal.App.4" 747, 785..........ccceccssesesceesssstsececeeeeeesseees Pg. 9, 10, 11, 20, 29, 36, 37 People v. Villarino (1955) 134 Cal.App. 2d supp. 893, 897.00... 0c cece cee eee ce te tee eee ret eee eneeeeneeenereeeeeaes Pg.8 People ex rel. Lungren v. Peron (1997) 59 Cal.App.4™ 1383, 1390.........ccccccccceccceecesceeccecesseeeeecenerscatetesenenreevaneseesPg. 11 People ex rel. Younger v. County of El Dorado (1979) 96 Cal. App. 3d 403, 406.0000...ce cee ee eee cence eee eer eee cen seen een tneeree easPg. 26 Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, at 103-1040...ccc ce tere ee ee eee eeeenereesPg. 7, 20, 30, 31, 32, 36 Qualified Patients Association (“QPA”) v. City of Anaheim (2010) 187 Cal.App.4°734, 754........ccccccceeeseeceeeeecesseneesPg. 4, 5, 11, 12, 32, 33, 34, 38, 39 Scott v. Cont’! Ins. Co., (1996) 44 Cal.App 4" 24, 30.00.00... .ceceeccseesceseessesseeceveccce cee cesesssssessesesesseeseesesPg. 16 Yolo Co. Dept. of C.P.S. v. Lowery (2009) 176 Cal.App.4" 1243, 1246.00... ..0ccccccccccceceeensnsceeeeeeeuseseeeeeeecevensnsnenseeeeesyPg. 16 Youngv. Dept. of Fish and Game (1981) 124 CalApp.3d 257.0000... cc cccc cc ccce cee cece eee ence nee cne ene nee eee ben een seen ee taeenenens Pg. 14 CALIFORNIA STATE ATTORNEY GENERAL OPINION: 80 Opinions California Attorney General (2005) Cal. AG LEXIS 17, 113, 117-118... 0.0ccece tenet eet teeta eee eat ee ene ens Pg. 3, 31 FEDERAL JURISDICTIONS: Conant v. Walters (9Cir. 2002) 309 F.3d 629, 640... 000... cccecccc cece ee cesceseceeeeeeaeeeeeeeeeeeeueteeeeenas Pg. 6 OTHERSTATES: Blue Sky Bar v. Town ofStratford (1986 Conn. SupremeCrt) 523 A.2d 467, 471.00.ceceeee cnet ee nee e nee enesPg. 15 Dart v. City of Gulfport (1937 MISS Supreme Crt) 113 So. 441, 444...cece cee cence eee ee ee ene eee ens Pg. 15 Edinburg Township v. Novelty Inc. (1992, OH App Crt) 1992 Ohio App.LEXIS 3731.0... cece eee ce teen e teresa enePg. 14 Gordonv. Indianapolis (1932 Indiana Supreme Crt) 183 N.E. 124, 125.0... cece eee cee cee e cee nene eae enaensPg. 15 In re Hauck (1888, Michigan Supreme Crt) 38 N.W. 269, 274-275... 00... cc cce cece cece ene cee tenet eee ne nesPg. 15 Oliver v. Oklahoma Alcohol Bureau of Control (1961 OK SupremeCrt) 359 P.2d 183, 186-1870...eee cece eee eee en eres renee es Pg. 15 Outdoor Systems v. City of Mesa (1991, Sup.Crt AZ) 819 P.2d 44, 48.00.ee cence cee ee er cence ee eee ne pee nt eaveeeea een eees Pg. 14 People v. Kaufman Carpets (1969) 298 N.Y.S.2d 2410...cteeter eee e eter ee eee ne nee neces seat teens tat nen ene n ea Pg. 15 People ex rel Goldberg v. Busse (1909 Ill Supreme Crt) 88 N.E. 831, 832-8332...cece cece eee cence rene eee ee ea eneeenees Pg. 15 State v. Colloway (1906 Id Supreme Crt) 84 P. 27, 32-3300...eeneee e te eee eee e eee ene cee eeentee ener re eeesPg. 15 State ex rel. Abattoirs v. Steinbach (1955 MO AppCrt) 274 S.W.2d 588, 590-591...cece eee eee e tees cnet averse rene en eee Pg. 15 State ex rel Daniels v. Kasten (1964 MO AppCrt) 385 S.W. 2d 714, 717...ccc cece ce nee ce eee e nee ee ce eat eeete nee en tesPg. 15 State ex rel. Nowothy v. Milwaukee (1909 WI Supreme Crt) 121 N.W. 658, 659-660....0. 0...ee ec ee cece c eee eee e teen e neta eesPg. 15 Steadmanv. Kelly (1948, Alabama Supreme Crt) 250 Ala. 246, 249.00.cee cc eee ee ee eee cece eee eeeneeesPg. 15 Yaworski v. Town of Canterbury (1959 Conn. Supreme Crt) 154 A.2d 758, 760.00... cece ee cence renee ene ee en ee ee ene teens Pg. 14 vi CALIFORNIA STATUTES: Business Professions Code §§5491.1, 22435.8, 2063.............ccceccee cece eeen eee eee teens teene nese nnesPg. 16 Civil Code § 3482.20.00... ccccecccnceecnecenee ence eee ee eeneee een eee teen eeeeeteeieeteeeee een eenenteeaeaennenPg. 12 California Code of Civil Procedure section 904.1 SUDGIVISION (2)(6)... 20... c cece ee eee eee eee e nee ee eene tee eeaeeenee ene teneee eas cece ee ene ene eeteee tates Pg. 2 California Health and Safety Code Section 11357... 00.0... cc ceccee eee neeeeeene enna eenennenteeaeaesPg. 10 California Health and Safety Code Section 11358...... 0.00... ci ccc cece cece cere ee eee e ee eedenaeeeeeeeeneagsPg. 10 California Health and Safety Code Section 11359...... 2.0...occeeeet eae ee nena eens Pg. 10 California Health and Safety Code Section 11360..........ccccece ener tenner e ee enenen ene en ens Pg. 10 California Health and Safety Code Section 11362.5 subd. (b)(1)(C)........ cece cece necro nee eneeeesPg. 10 California Health and Safety Code Section 11362.7.......... 0c. cece eee cree e ena neeeeee entre Pg. 1, 20, 32 California Health and Safety Code section 11362.765............ccccccecee ee ecee eee tee te tenner eeenes Pg. 11, 35 California Health and Safety Code section 11362.768..............ceceseene eens eee Pg. 13, 14, 19, 25, 30, 35 California Health and Safety Code section 11362.775 bee ee eee eeenee een eees Pg.1, 2, 4, 7, 8, 10, 11, 13, 16, 19, 20, 21, 24, 27, 28, 29, 31, 32, 34, 35, 36, 37 California Health and Safety Code Section 11362.785........ cece cee scence eet eae eeneeeees Pg. 34, 37 California Health and Safety Code Section 11362.79. 0.00...ccc cece nen e eee ene cee neeriteeeneeeeesPg. 37 California Health and Safety Code Section 11365.81 SUBDIVISION (C)... 0... cece cece cece eee eter ered een eet ee nee eden eres een eee ee ones reese eer eenereeee eePg. 12 California Health and Safety Code section 11362.83......... Pg. 4, 7, 13, 14, 16, 17, 18, 19, 20, 21, 25, 26, 30, 32, 33, 35, 36, 37, 38 California Health and Safety Code section 11366.............ccccccesecee sere tne tee crease tae eereeeeeesPg. 10, 35 California Health and Safety Code section 11366.5... 2.00.0... 0.0 oc ccc ce cece e eee ee cee nent te eee nenaee Pg. 10, 35 California Health and Safety Code section 11570...... 2.0... ..cccceeeeee ee ee eee Pg. 10, 11, 12, 13, 27, 35, 37 California Health and Safety Code section 11571] 20.0.2... cee eecceeee een re eer ee reer nt ee eee esttasanenees Pg. 11 California Health and Safety Code section 11571120... cece cee cen c ee eee eee e tees cena eeeeteneenees Pg. 11 California Health and Safety Code section 11571.5.... 00. cece cece een ener nena ener eseeneeneeas Pg. 11 Medical Marijuana Program (2003) § 1; 2003 Cal ALS 875.0... 0.0.00. ce ccc ceecee cee eec neces cee eee este te ececeseeetsssseseaeans Pg. ~~ vii Government Code section §83111.............cc cee ceecee cee cee ete ee eae c een eeee een een eu eteen teeta een aaeneegsPg. 17 Government Code section §83112...... 20... cccceeceecee cee e ee eee eee ee eceee ee nee eee ee ata eaeen tense en eaneeeeasPg. 17 Government Code section §65858..............ccceceecee nce ee ete eee een te nee tease ee tneneen te ben egeueenecasPg. 33 Streets Highways Code §35701............cecccc eee e cence cee nee teense eee eben tanta ene ee ene ceten tae eenen sensePg. 16 Vehicle Code §22101 00...cece ee center ee nee ee nee nee tee cena teen ed en ennsa eben ee beeen ta eeesegeaen eee’Pg. 16 Water Code §§31145, 31144.7.... 0. cecc cece cee cee cee ee ene beeen eee en eeeeeeeeeesa ee en teen ee eenaeen es Pg. 16 CALIFORNIA STATE CONSTITUTION: California State Constitution’s Article IT], §3.5........... 00.0 cccc eee cc cece ne cence ete ee cesses eea ene neesPg. 38 California State Constitution’s Article XI, §5 Subd. (a)......... 0.00. ccc ccc ce cece c nec e eee eee tae ee teeeneePg. 20 California State Constitution’s Article XT, §7............ 0... cc cece cece cece nce ee eases taeeenensPg. 8, 20, 21, 27 viii INTRODUCTION Inland Empire Patient's Health and Wellness Center (“IEPHWC’”), J. William Sump II, Lanny D. Swerdlow and Angel West Inc. appealedthetrial court's order granting a Preliminary Injunction issued on November 24, 2010. The injunction was based on the application of Respondent's municipal ordinance which bansall medical marijuanapatient associations (a.k.a.: "collectives", "dispensaries", "cooperatives" and "cultivation projects") formed pursuant to the Medical Marijuana Program (See, Health and Safety Code’ §11362.775) from operating anywherein the City of Riverside. The preliminary injunction enjoins IEPHWCoperations, finding their activities a nuisanceperse. The preliminary injunction also prohibits appellants from engaging in activities authorized by said Health and Safety Code section, including providing authorized medical marijuana to IEPHWC's members pursuantto the Medical Marijuana Program (section 11362.7 et seq.) (‘MMP"). The ordinance at hand violates a consistent rule applied by this court; 1.e., municipalities can't ban what state law permits. The legislature's express purpose behind the creation of the MMP wasto "enhance the access" through these very institutions (i.e.,"collectives") and assure "uniform" application of the Medical Marijuana Program throughout the counties of the State of California. (See, Legislature's preamble to MMP) The consequence of Respondent's interpretation would be an absurd result not intendedbythe legislature and in direct conflict with its express purpose; the elimination of these institutions, city by city, until few are left or are concentrated in small pockets of the state-the exact opposite of what the legislature's goals were in enacting the MMP. "If the preemption doctrine means anything, it meansthat a local entity may not pass an ordinance, the effect of which is to completely frustrate a broad, evolutional statutory regime enacted by the Legislature." (emphasis added) Fiscalv. City & Co. ofSan Francisco (2008) 158 Cal.App.4th 895, 911. ' All further statutory references are to the Health and Safety Code unless otherwisestated. 1 PROCEDURAL BACKGROUND On November24, 2010 thetrial court issued a preliminary injunction prohibiting appellants’ activities undertaken pursuant to $§/1362.775. (Clerk's Transcript, "CT" 445) Thetrial court ruled that due to the existing federal ban on marijuana that respondent's ordinance was lawful and not preempted by the Medical Marijuana Program (MMP)and its prohibitions on local ordinances which are not "consistent" with the MMP. (Reporter's Transcript, hereinafter "RT" 22-24) (See, section 11362.83). The trial court additionally relied on City ofClaremont v. Kruse (2009) 177 Cal.App.4th 1153 as grounds for permitting a municipality to permanently ban otherwise state sanctioned and encouraged conduct under the MMP. (RT 10) On December 20, 2010 the Court of Appeal issued a stay ofthe trial court's preliminary injunction and on March 2, 2011 it granted a Writ of Supersedeas staying the preliminary injunction. STEMENT OF APPEALABILITY This is an appealable order granting a preliminary injunction. Code ofCivil Procedure § 904.1(a)(6). The notice of appeal wasfiled timely. (CT 446) FACTS IEPHWCis a notfor profit California Mutual Benefit Corporation established for the sole purpose of forming an association of qualified individuals whocollectively cultivate medical marijuana andredistribute to each other; it has been in operation at the samelocation since December 2009. Its principal board members, Mr. Joseph William Sump IJ and Mr. Lanny D. Swerdioware also appellants here. IEPHWCis located in a commercial zone within the City of Riverside (647 Main Street, Suite 2-A); this zone generally permits medical uses and hasalternatively been described by Respondent as a "Business and Manufacturing Park Zone District". (CT p.278, 273, 52, 4). IEPHWCselected this location as it is more than 1000 feet from any school or church. IEPHWCstrictly adheres to multiple policies which are implemented to ensure compliance with all state law and local sheriff policies on the subject, including adhering to the State Attorney General's Guidelines for The Security and Non Diversion of Medical Marijuana. (CT p.279, 277-281, 299, 302, 304, 306, 452) Community activities IEPHWCparticipate in have been recognized by local officials in the community. (CT 275) IEPHWChasalso created a "farmer's market" approach as a meansofproviding medical marijuana at the lowest price possible. (CT 275) IEPHWCmaintainsa strict policy of not disturbing neighborsor interfering in any manner with the operation and functions of any surrounding businesses; nor have they ever been knownto maintain a nuisance. (CT 279) Prior to opening, IEPHWCofficials consulted with the local city council. (CT 278) On January 5, 2009 the city responded that it had "create[d] a definition of medical marijuana dispensaries and prohibits this use anywherein the City". (CT 59-60) On May20, 2010 respondent filed a complaint for injunctive relief "TO ABATE A NUISANCE". The complaint specifically relied on Civil Code §$3479, 3480, 3491, 3494 and City ofRiverside Municipal Code $§1.01.110, 6.15.020, 19.150.020 and 19.070.020. (CT 1). Respondent alleged a theory of nuisanceper se. (CT 4, paragraph 20, 27 of Verified Complaint; CT 150, 154, Motion for Preliminary injunction).” Angel City West is the property management companyfor the building IEPHWC occupies. (CT 2) Respondent was attempting to enforce Riverside Municipal Code §19.150.020 whichlisted all permissible land uses, "strictly prohibited" any use which was "prohibited by ...federal law" and declared that uses not listed "in Tables are prohibited" and that the city's table of uses also identified uses "specifically prohibited". (CT 149, 201) The city's table of permissible uses expressly listed "medical marijuana dispensary" as a "Prohibited Use"in every part of the city. (CT 207) * The complaint was amended on June 10, 2010 to add “William Joseph SumpII" (CT 71) and on August 19, 2010 to correctly name "Does 2" as "Inland Empire Health and Wellness Center, Inc.". (CT 138) On August 30, 2010 respondent filed a motion for preliminary injunction. (CT 143) Respondent maintained that despite California law on the subject, the city expressly forbids any activities which are illegal under federal law and thus appellants are a nuisance per se. (CT 149-150) The motion was supported by the declaration of Darren Woolley, of the City of Riverside Police Department. (CT 158, 159). Woolley's declaration sought to establish there was a connection betweenthe clinic Swerdlow is a nurse at and IEPHWC;he attempted to do so by indicating they were in the immediate vicinity of each other and IEPHWCwasoneofthe manycollectives he wasreferred to at the clinic. (CT 159) No evidence,at all, was submitted by respondent (in support of their motion for a preliminary injunction)or is in this record that in any mannertied Angel City WestInc. to any of the activities of IEPHWC, Swerdlow or Sump. On October 1, 2010 appellants IEPHWC, Sump, Swerdlow and Angel City West filed an opposition to the motion for preliminary injunction. (CT 250) Woolley's declaration was contradicted in material parts by both Swerdlow's declaration (CT 273) and Sump's declaration (CT 277) in support of the opposition to the motion for preliminary injunction. Their respective declarations (especially that of Sump) set out in great detail the operating procedures of IEPHWC,attached relevant documents as exhibits and provided details about the interactions with Woolley. (CT 273-275, 277- 342). Appellant's argued that the city's ban on medical marijuana patient associations formed pursuant to section 11362.775 was preempted by the MMP (CT 257), unlawful under section 11362.83 (CT 254-255) as a local ordinance not "consistent" with the MMB,andthat their federal law dichotomyjustification violated the holding in Qualified Patients Association v. City ofAnaheim (2010) 187 Cal.App.4" 734 as well as the California Constitution's Article III, §3.5. (CT 266-267) On October 18, 2010 respondent filed a reply to appellant's opposition; therein respondentelected to remain completely silent with respect to appellant's argumentthat the city's federal law dichotomyjustification for their total ban on collectives was 4 unlawful. Instead the city only respondedto appellant's arguments regarding state law preemption. (CT 343) Respondent even acknowledged at the hearing on the motionthat this court's opinion in Qualified Patients Association v. City ofAnaheim was"limited...to federal preemption" and exclusively prohibited the federal dichotomyjustification as a means for a municipality to ban the conduct. (RT 11) Respondent nevertheless maintained that they were compelled under Government Code section 37100 to not permit any conduct unlawful under federal law. (RT 22) Thecity never offered evidence of criminal acts and neighborhood deterioration which wasspecific to any one appellant. On November 24, 2010 the trial court heard arguments from both sides and ruled the preliminary injunction would issue. (RT 22-24) Thetrial court's written order prohibited appellants from "conducting any activities or operations related to the distribution of marijuana". (CT 445) The injunction additionally prohibited Angel City West Inc. from "renting" the property "for such activities". (CT 445) HISTORICAL PERSPECTIVE California, first through a voter proposition in 1996 (Compassionate Use Act) and in 2003 through state legislation (/MP), decided to part ways with the federal government's intolerance with marijuana use for medical treatment. The Legislature's principle purpose was; to 1) "Promote uniform and consistent application of the act among the counties within the state" and 2) "Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (2003 Cal SB 420 § 1; 2003 Cal ALS 875; See, Legislature's preamble to the MMP). The Legislature's express purpose behind the creation of the MMP,as shall be discussed in greater detail infra, are central to appellant's arguments before this court. California's parting with their federal counterpart was the culmination of years of federallitigation in an attempt to reclassify marijuana from a Schedule I drug to a Schedule II (thus, allowing the prescribing of the substance by medical doctors); this federal litigation to reclassify marijuana was conducted before the administrative court of the Departmentof Justice and included receipt of substantial evidence on the subject. At 5 the conclusion the administrative judge issued a 68 page opinion on the issue finding that the overwhelming evidence supports marijuana's medicalefficacy,stating: "The Judge realizes that strong emotions are aroused on both sides of any discussion concerning the use of marijuana. Nonethelessit is essential for this Agency,and its Administrator, calmly and dispassionately to review the evidence of record, correctly apply the law, and act accordingly.... The evidencein this record clearly shows that marijuana has been accepted as capable of relieving the distress of great numbersof very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidencein this record." See, In The Matter OfMARIJUANA RESCHEDULINGPETITION(1988, UNITED STATES DEPARTMENT OF JUSTICE Drug Enforcement Administration Administrative Court, Docket No. 86-22) In 1989 the Administrator of the federal Drug Enforcement Administration (DEA), rejected the Administrative Law Judge's decision. See, 54 FR 53767 and eventually led to California's break with the federal government in 1996 with passage of "The Compassionate Use Act". Asstated by Judge Kozinski in his concurring opinion in Conant v. Walters (9th Cir. 2002) 309 F.3d 629; "Those immediately and directly affected by the federal government's policy are the patients, who will be denied information crucial to their well-being, and the State of California, whose policy of exempting certain patients from the sweep of its drug laws will be thwarted. In my view,it is the vindication of these latter interests--those of the patients and of the state--that primarily justifies the district court's highly unusual exercise of discretion in enjoining the federal defendants from even investigating possible violations of the federal criminal laws." Conant v. Walters, supra., 309 F.3d at 640. California has put in place through the MMPanentire statutory scheme covering dozensofrelated issues to assure that its policy decisions are carried out. (See, Section 11362.775). Respondent's ordinance denies individuals the ability to obtain state sanctioned medication through the means authorized by §//362.775;thus, raising an imaginary blockade around respondent's city thwarting the State's policy. 6 WHEN A CHALLENGEIS PRESENTED TO THE VALIDITY OF AN ORDINANCE RELIED UPON TO OBTAIN PRELIMINARY INJUNCTION A FINDING THE ORDINANCEIS UNLAWFUL REQUIRES REVERSAL OF THE PRELIMINARY INJUNCTION. “where the ‘likelihood of prevailing on the merits’ factor depends upon a question of law ... the standard of review is not abuse of discretion but whether the superior court correctly interpreted and applied [the] law,....” Efstratis v. First Northern Bank (1997) 59 Cal.App.4th 667, 671-672; An injunction based on an unconstitutional ordinance exceedsthe issuing court's jurisdiction. Welton v. Los Angeles (1976) 18 Cal. 3d 497, 507 Respondent's ordinance prohibits "medical marijuana dispensaries" (respondent's label) from operating within the city. (See, Riverside Municipal Code §$ 19.150.020(A) (permitted uses) and $/9.9/0.140 (defining “medical marijuana dispensary”). The term "association" or "collectives" comports with the words in $/1362.775. Respondent maintains that in creating the MMP the Legislature did not expressly prohibit cities from totally banning said institutions under the cities traditional "police power". Under that theory, respondent maintains, medical marijuana collectives may be completely and permanently excluded from existence within thecity. Respondent's total ban on medical marijuana collectives violates Cal. Const., art. XI, §7 as it is "in conflict with general laws" and violates §/1362.83 requirement that local ordinances be "consistent" with the MMP. "[Bly enacting an outright, unconditional ban on the administration of [medical marijuana] within its borders", N. Cal. Psychiatric Society v. City ofBerkeley (1986) 178 Cal.App.3d 90, at 103-104 [striking down municipal ban on medical treatment authorized by state law], respondent “has created an apparent conflict with the state legislative statutory scheme andits guarantee to all..." Ud. at 103-104) of "uniform application of the law", of "enhanced access" to medical cannabis, of the right to "associate" in order to obtain medical cannabis and the ability to form collectives as encouraged by the Legislature in the statutes of the WMP and the preamble containing the Legislature's express purpose. (see, Legislature's preamble to MMP, Stats 2003 ch 875; section 11362.775.) "A county or city may make and enforce withinits limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Cal. Const., art. XI, § 7, italics original.) "Local legislation in conflict with general law is void." Morehart v. County ofSanta Barbara (1994) 7 Cal.4th 725, 747. "The evident intention of the clause above quoted was to prevent any confusion, or discord, or incongruity between the general legislation of the state in its broad sovereign capacity and the special legislation of its dependent municipalities." Ex parte Cambell (1887) 74 Cal. 20, 27 (Justice Thomas B. McFarland, dissenting) The interpretation pressed by respondent would prohibit the state legislature from implementing unpopular policies it seeks to uniformly apply throughout the state leading to municipal anarchy. The definition of "conflict" within Cal. Const., art. XI, § 7 necessarily includes a broad concept that may not seem like "conflict" in the dictionary sense. "The invalidity arises not from a conflict of language but from the inevitable conflict ofjurisdiction which would result from dual regulations covering the same ground. Only by such a broad definition of "conflict" is it possible to confine local legislation to its proper field of supplementary regulation." People v. Villarino, (1955) 134 Cal. App. 2d Supp. 893, 897 1 1 // 1 1] // 1 1 1 /f 1] I. LOCAL ORDINANCES & ENFORCEMENT PROCEDURES WHICH CONFLICT WITH STATE LAW ARE UNCONSTITUTIONAL AND VOID AS PREEMPTED. A. THE MEDICAL MARIJUANA PROGRAM ACT PERMITS THE DISPENSATION OF MARIJUANA BY ASSOCIATIONS AND COLLECTIVES FOR MEDICAL PURPOSES TO QUALIFIED PATIENTS AND EXEMPTS THEM FROM LOCAL NUISANCE ABATEMENT ORDINANCES. It is customary for proponents of this ban to refer to decisions which interpreted the more narrower voter enacted proposition (Compassionate Use Act, "CUA"). Those decisions should be confined to historical perspective and when employedthat distinction noted as the law evolved thereafter; this is due to the "dramatic change in the law" (People v. Urziceanu, (2004) 132 Cal.App.4" 747, 785) which the passage of the MMP brought about when comparedto the narrow rights under the CUA. Muchofthe language cited by respondent regarding the "narrow nature of the law" rely on cases merely interpreting the CUA. Thus, respondent's continued attempt to label the MMP as a "narrow"criminal defense and nothing moreis simply not correct-it is a broad statutory scheme covering dozensof related topics and seeking to implementits purpose. The Legislature declared their intent in enacting the MMP wasto: “(b)(2) Promote uniform and consistent application of the act among the counties within the state. (3) Enhancethe access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (2003 Cal SB 420 § 1; 2003 Cal ALS 875.) The MMPcontains § 11362.775, whichstates, “Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, whoassociate within the State of California in order to 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.” (emphasis added) 9 The court of appeal in People v. Urziceanu (2004) 132 Cal.App.4" 747, 785, articulated that it was the intent of the Legislature in enacting $//362.775 to exempt qualified patients and primary caregivers from specific Health and Safety Code violations listed therein which previously prevented the lawful dispensation of medical cannabis “and the laws declaring the use of property for these purposes a nuisance.” (Urziceanu supra, at 785) (emphasis added).) Urziceanu pointed out that the enactment of the MMP signified a "dramatic change in the law" (Urziceanu, supra, at 785) in that the CUA did not permit distribution and now atthe request of the voters (see, $11362.5 subd. (b)(1)(C)) the Legislature created a distribution system. (See, People v. Urziceanu (2004) 132 Cal.App.4” 747, 785.) “The Legislature extended certain protections to individuals. Those protections included immunity from prosecution for a numberofmarijuana- related offenses that had not been specified in the CUA, among them...11570 [abatement of nuisance created by premises used for manufacture, storage or distribution of controlled substance].” (citations omitted) By authorizing a CUA defense to these other marijuana-related offenses, the Legislature furthered its goal of “address[ing] additional issues that were not included within the act, and that must be resolved in order to promote the fair and orderly implementation ofthe act.” (Stats. 2003, ch. 875, § L.)...” People v. Wright (2006) 40 Cal. 4th 81, 93. The same immunity from nuisance per se causes of action undersection 11570 also appears in section 11362.775. The Urziceanu court was keenin referring to the Legislature's express enumeration of §/1570 within § 11362.775 and realized the obvious, i.e. that additionally municipalities were prohibited from using "the laws declaring the use of property for these purposes a nuisance." People v. Urziceanu supra, at 785. While § 1/362.775 refers to "state criminal sanction" this possible legislative scrivener's error’ can't vitiate the exclusivecivil nuisance aspects of §/1570; this section * It is not a scrivenerserror in that £71570 is the last section enumerated andit is placed after the "" and the term "or" which singularly appears at this location of §11362.775; thus, indicating the3 legislature's knowledge that §//570 wascivil in nature and electing to separate it with the coma 10 declares that every location whichis used to sell controlled substances "is a nuisance, which shall be enjoined...and for which damages maybe recovered". ($/1570) §11570is strictly a civil nuisance cause of action which the legislature unequivocally excluded from the reach of local officials in that the section ($/1570) directly ties into others which give municipalities the ability to declare "drug houses" a nuisance (See, §§ 1/571 $11571.1 and §11571.5). Thelegislature's exclusion of§/1570 as a civil cause of action whenit created §11362.775 indicated the removal of local governments ability to label the conduct therein authorized a nuisance and banit from its borders. The decision in Qualified Patients Association v. City ofAnaheim (2010) 187 Cal.App. 4" 734, 753-754 (referred to as "QPA") recognized as much whenit noted the reason for the legislature's change in the law was to permit the establishmentofthese institutions free from civil nuisance repercussions. "The court in People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1390, held that the “‘general availability of injunctive relief under section 11570 against buildings and drug housesusedto sell controlled substances is not affected by” the CUA. The Legislature subsequently enacted the MMPA. Sections 11362.765 and 11362.775 of the MMPA immunize operators of medical marijuana dispensaries—provided they are qualified patients, possess valid medical marijuana identification cards, or are primary caregivers—from prosecution under state nuisance abatement law (§ 11570)." OPA supra, 753-754. OPAalso recognizedthat; "it seems odd the Legislature would disagree with federal policymakers about including medical marijuana in penal and drug house abatementlegislation (citations ), but intend that local legislators could side with their federal—instead of state—counterparts in prohibiting...property uses “solely on the basis” of medical marijuanaactivities. (§§ 11362.765 & 11362.775.) After all, local entities are creatures of the state, not the federal, government." OPA supra, 754. and the term "or" to signal that obvious conclusion. "[I]t has long been the rule in California that the literal language of enactments may be disregarded to avoid absurdresults and tofulfill the apparent intent of the framers." Bell v. D.M.V. (1993) 11 Cal. App. 4th 304, 311 (holding that a statute which applied expressly only to "prosecutions" also applied to civil administrative hearings as intended bythelegislature.) 11 The provisions of the MMP wereinterpreted in People v. Hochanadel (2009) 176 Cal. App. 4th 997, 1011 wherein the court rejected the People's argumentthat "storefront" collectives were not lawful and held that “a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law,...". Hochanadel also pointed out that the Attorney General, under the direction of the California Legislature (see, $11362.81(d)), reached the conclusion that the law permits for storefront type of collective as operated by IEPHWC. "Nothing in section 11362.775, or any other law, prohibits cooperatives and collectives from maintaining places of business." People v. Hochanadel supra, 176 Cal. App. 4th at 1018. Having madethe conduct lawful and having expressly removedthe ability for municipalities to enact nuisance cause of actions, the bar to a nuisance causesofaction under Civil Code $3482 cameinto full effect. That section expressly bars this type of cause of action and or ordinance. "Nothing which is done underthe express authority of a statute can be deemed a nuisance." Civil Code $3482. Even underthe “consistently applied [] narrow construction to Civil Code section 3482"its protection must be carried out in this case. Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc., (2010) 190 Cal. App. 4th 1502, 1530. "In general, the cases that apply the protection do so where the alleged nuisanceis exactly what was lawfully authorized." Jd at 1532. The nuisance cause of action here is based on nothing more than lawful conduct and pursuant to Civil Code §3482 is thus barred and so is respondent's ordinance. Enforcement here is accomplished with abatement lawsuits seeking attorney's fees and injunctions prohibiting conduct authorized by state law. These actions are carried out by respondent "solely on the basis of th[e] fact" (§71362.775) IEPHWCis doing what the MMPpermits. This is precisely what the reference to $//570 as an excluded civil cause of action for this conduct was meant to prevent. (See, $/1362.775) 1 // 1 12 B. MUNICIPALITIES MAY ONLY ENACT REGULATORY ORDINANCES "CONSISTENT" WITH THE MMP. THEIR AUTHORITY IS LIMITED UNDER SECTIONS 11362.83 AND 11362.768 TO "REGULAT[ING]"AND HAS NEVER BEEN EXTENDED TO PERMIT MUNICIPALITIES TO PROHIBIT CONDUCT PERMITTED BY THE MMP. The express limitations placed by state statutes on the enactmentof local legislation can be determinative of the extent of local authority to enact local legislation in that samefield. See, People ex rel. Deukmejian v. County ofMendocino, (1984) 36 Cal. 3d 476, 486-487. Thus, "each phrase within an express preemption provision limits the universe of local action pre-empted by the statute." Big Creek Lumber Co. v. County ofSanta Cruz (2006) 38 Cal. 4th 1139, 1156. Thelegislature provided municipalities limited and restricted authorization to pass ordinancesthat are “consistent” with the MMP and"ordinancesthat regulate the location, operation, or establishment of a medical marijuana cooperative or collective" (See, § 11362.83) An ordinance enacting a total ban on conduct otherwise encouragedby state law is not a "regulation of the location, operation or establishment"; insteadit's a prohibition on the activity-actions stretching beyond the plain meaningofthe wordsin § 11362.83. To "regulate" means "[t]o fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule orrestriction; to subject to governing principles or laws." (Black's Law Dict. (6th ed. 1990) p. 1286, col. 1.) A total ban of conduct does not comport with this plain definition except on the most creative stretch of the meaning of the word; "regulate" infers the very existence of other laws which permit the conduct to occur. The term "regulate" versus "prohibit" has always been understoodthis way. Noting the difference between "regulate" and "prohibit" an appellate court stated: "The ordinance doesnot absolutely forbid the maintenance ofa corral in the businessdistrict, but providesthat no corral of the kind interdicted by it shall be maintained in the business section without a permit from the city trustees." Boyd v. Sierra Madre, (1919) 41 Cal. App. 520, 524-525. And in Young v. Dept. ofFish and Game (1981) 124 Cal.App.3d 257 the court held that a regulation is not a ban so longasthere is a regulated alternative 13 mannerto participate in the conduct. "Further, the evidence introduced and the wording of the regulations themselves...show that a complete commercial ban was not adopted by the Commission. The regulations only prohibited one portion of commercial collecting activity." Id at 277-278. This is not the case here. Respondent has enacted an absolute ban. The legislature however expressly limited the local authority to "regulate" only "location" and "establishment". (See, sections 11362.83 and 11362.768) ft we"The word "regulate,"’..., has always been deemed to mean "to fix"' or "to establish," and no other signification may nowproperly be attached to that word in the connection in whichit is so employed..." Arnold v. Sullenger (1927) 200 Cal. 632, 635- 636 Other decisions have understoodthere is a difference between "regulate" and "prohibit"; when a statute permits one to "regulate" it does not permit one to "prohibit". A statute that permitted "regulation" was not "prohibiting" because the ordinance "did not eliminate the existence ofthe act to be regulated" as it "does not prohibitall signs". Outdoor Systems v. City ofMesa (1991, Sup.Crt AZ) 819 P.2d 44, 48. In Yaworskiv. Town ofCanterbury (1959 Conn. Supreme Crt) 154 A.2d 758, 760 the court struck down a total prohibition on garbage disposal sites because the legislature had, like here under the MMP, only granted the authority to "regulate". In Edinburg Township v. Novelty Inc. (1992, OHApp Crt) 1992 Ohio App.LEXIS 3731 the court struck downa total prohibition on sale of fireworks on accountthe state legislature, as in this case, only granted municipalities the authority to "regulate". In Blue Sky Bar v. Town ofStratford (1986 Conn. Supreme Crt) 523 A.2d 467, 471 the court held that "It is fair to say that the powerto regulate, however, does not necessarily imply the powerto prohibit absolutely any businessortrade, as the very essence of regulation, which infers limitations, is the continued existence of that which is regulated. Prohibition of an incident to or particular method of carrying on a businessis not prohibition, but rather it is merely "regulation"...We conclude that the ordinanceat issue in this case is regulatory. The ordinance merely proscribes vending from motor vehicles; it does not preclude all vending.” (emphasis added) Jd at 471 14 The following courts have eloquently articulated this same theme;i.e. a legislature's grant of the authority to local governments to "regulate" does not include authority to prohibit the conduct to be regulated. State v. Colloway (1906 Id Supreme Crt) 84 P. 27, 32-33; State ex rel Daniels v. Kasten (1964 MO App Crt)385 S.W. 2d 714, 717; Dart v. City of Gulfport (1937 MISS Supreme Crt) 113 So. 441, 444; State ex rel. Abattoirs v. Steinbach (1955 MO App Crt) 274 S.W. 2d 588, 590-591; Oliverv. Oklahoma Alcohol Bureau ofControl (1961 OK Supreme Crt) 359 P.2d 183, 186-187; Gordon v. Indianapolis (1932 Indiana Supreme Crt) 183 N.E. 124, 125; Steadmanv. Kelly (1948, Alabama Supreme Crt) 250 Ala. 246, 249; People ex rel Goldberg v. Busse (1909 Ill Supreme Crt) 88 N.E. 831, 832-833; State ex rel. Nowothy v. Milwaukee (1909 WI Supreme Crt) 121 N.W. 658, 659-660; In re Hauck (1588, Michigan Supreme Crt) 38 N.W. 269, 274-275. . In People v. Kaufman Carpets (1969) 298 N.Y.S.2d 241 the court relying on the "Corpus Juris Secundum (vol. 62, Municipal Corporations, § 161)" stated: "the power to regulate necessarily implies the power to permit conditionally the doing of a thing, power to regulate ordinarily does not include powerto prohibit or suppress. Prohibition is not the equivalent of regulation; and ordinancesofprohibition, direct or indirect, enacted under the powerof regulation only are generally unwarranted." "Several cases contain illustrations of the recognition of a difference between regulation and prohibition...There is a wide difference between regulation and prohibition." People v. Kaufman Carpets supra, 298 N.Y.S.2d at 243. No authority exists for the proposition that a legislative grant of power to "regulate" specified areas such as "location" and "establishment" is synonymous with the powerto "prohibit" the conduct. "...the Legislature knew how to create an exceptionifit wished to do so; nothing would have been simpler than to insert..." (City ofOntariov. Superior Court (1992) 12 Cal. App. 4th 894, 902) the word "prohibit" into §/7362.83 or $11362.768. The legislature has created statutes addressing different subjects using both terms (regulate and prohibit); thus, having an awarenessofthe difference between these terms and intending here to not permit "prohibition" by excluding said term. (See, 15 Business Professions Code §§5491.1, 22435.8, 2063; Streets Highways Code §35701; Vehicle Code §22101; Water Code §$31145, 31144.; statutes using both terms, "regulate" and "prohibit") Undernostretch of logic is the word “consistent” synonymous with permitting municipalities to enact complete prohibitions on what the Legislature found was of paramountimportance (as expressedin the preamble to the MMP); the establishmentof a statewide medical marijuana distribution system through collectives. Interpreting $/1362.83 as permitting a total ban on conduct authorized by §11362.775 would obliterate the Legislature's two principle purposes; to 1) have "uniform and consistent application of the act among the counties" and 2) "Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (preamble to MMP). Therules of statutory interpretation forbid such an absurd result and one so contrary and "inimical to" the legislature's expressed purposes. "The fundamentalrule of statutory interpretation is to ascertain the intent of the Legislature as to the purpose of the law byfirst looking at the plain meaning of the words in the statute." Yolo Co. Dept. of C.P.S. v. Lowery, (2009) 176 Cal.App.4th 1243, 1246. There is "no indication that the Legislature intended to give the word{] ["consistent" within §//362.83]...other than [its] ordinary dictionary meaning[]." People v. Anderson (1968) 70 Cal.2d 15, 26. "It is thus safe to say that the "ordinary" sense of a wordis to be found in its dictionary definition." Scott v. Cont'l Ins. Co., (1996) 44 Cal. App. 4th 24, 30. Webster's ThirdNew International Dictionary ofthe English Language Unabridged (1986) defines "consistent" to mean "marked by harmony,regularity, or steady continuity throughout: showing nosignificant change, unevenness, or contradiction... ." And Black's Law Dictionary defines "consistent" to mean "having agreement with itself or something else; accordant; harmonious; congruous; compatible; compilable; not contradictory." Black's Law Dictionary (6th Ed. 1990). 16 Respondent's ordinance contravenes the plain meaning of the word "consistent"; there is no "agreement with" and is "contradictory" to what the /MP permits andis thus not "consistent with the act". (See, §//362.83) Interpretation of the word "consistent" in other contexts lends support for appellant's interpretation. In Citizens to Save California (CSC) v. California Fair Political Practices Commission (CFPPC) (2006) 145 Cal.App. 4" 736, the court interpreted languagenearly identical to the “consistent with” language in §/1362.83. The court addressed Government Code §83111; under that section the Fair Political Practices Commission (FPPC), is delegated authority to administer the Political Reform Act (PRA), but wasrestricted to enact regulations which are "consistent with’” the PRA. (Id at 746; Government Code §83112). The court in CSC, supra, held that any regulation which "conflicts" with either the enabling statute's language or the purpose of the legislation is "inconsistent" and thus said regulation is rendered void. (/d. at p. 751 and 754.) "Regulation 18530.9 is at odds with the language of the PRA. It is also inconsistent with the legislative intent underlying the PRA’s contribution limits. The effect of regulation 18530.9 is to inhibit a candidate’s involvementin the initiative process. Involvementwill lead to restrictions on the ballot measure committee’s fundraising. This conflicts with the voter’s concern, as expressed in the ballot proposition, that candidates devote insufficient time to matters of public policy." (Ibid.) This Court has implemented a rule to determine when local laws are not "consistent" with state law; “A local ordinance contradicts state law whenit is inimical to or cannot be reconciled with state law." (emphasis added) O’Connell v. Stockton (2007) 41 Cal.4" 1061 , 1068. Plaintiffs total ban on defendant's otherwise lawful conduct "contradicts state law" (/d.) becauseit is "inimical to and cannot be reconciled" (/d.) with the Legislature's paramount purpose of promoting "uniform" application of the MMP and "enhance the access" "through collective, cooperative cultivation projects" to qualified patients. Since respondent's ordinance "contradicts state law" (/d.) respondent's actions * The interpretation of an ambiguousstatutory phrase maybeaided by reference to other similarly wordedstatutes. People v. Woodhead(1987) 43 Cal. 3d 1002, 1008. 17 necessarily are also not "consistent" with the MMP.See, section 11362.83. In interpreting §11362.83 this court should be guided by the following rules of statutory interpretation: "To the extent this examination of the statutory language leaves uncertainty, it is appropriate to consider ‘the consequencesthat will flow from a particular interpretation. Where more than onestatutory construction is arguably possible, our ‘policy has long been to favor the construction that leads to the more reasonable result. This policy derives largely from the presumption that the Legislature intends reasonable results consistent with its apparent purpose. Thus,our task is to select the construction that comports most closely with the Legislature's apparent intent, with a view to promoting rather than defeating the statutes' general purpose, and to avoid a construction that would lead to unreasonable, impractical, or arbitrary results." (emphasis added) (citations omitted) Commission on P.O.S.T y. Superior Court (2007) 42 Cal.4th 278, 290.) "A court should not adopt a statutory construction that will lead to results contrary to the Legislature's apparent purpose." (emphasis added) People ex rel. Lungren v. Superior Court (1996) 14 Cal.4” 294, 305. "[W]here the main purpose of the statute is expressed|,] the courts will construe it so as to effectuate that purpose by reading into it what is necessary or incident to the accomplishment of the object sought." People v. Melton (1988) 206 Cal.App.3d 580, 592. In deciding if §/1362.83 preempts respondent's ordinance, this Court must necessarily be guided bythe legislature's twin goals of uniformity of law (none existing if municipalities could ban collectives) and enhancing access to qualified patients through collectives (a Legislative purpose practically vanquished by the city's ordinance as access is eliminated and not enhanced.) . This court must take into account "the consequences that will flow from a particular interpretation" and when "more than one statutory construction is arguably possible, [the] policy has long been to favor the construction that leads to the more reasonable result". (Commission on P.O.S.T, supra, at 290.) Allowing bans would lead to non uniform application of the law with collectives concentrated in limited areas or non existing in entire regions of the state; it would be an 18 absurd interpretation to concludethis is what the legislature wanted when so manyoftheir words in the MMPclearly state otherwise. California has established a delicate balance, allowing municipalities to "regulate" (sections 11362.83, 11362.768), but not ban. This is exemplified by the ruling in County of Los Angeles v. Hill (2011) 192 Cal. App. 4th 861. There the court held that the county was free to enact restrictions on when, were, and how collectives operate; however, the court expressly pointed out that a local ordinance can't be based solely on the fact the actors are performing the conduct authorized by section 11362.775. Hill reasoned such a conclusion was required because section 11362.775 exempts medical marijuana collectives from local nuisance laws which are based as here, on nothing more than participating in conduct exclusively authorized under section 11362.775, "By its terms, the statute exempts qualified patients and their primary caregivers (who collectively or cooperatively cultivate marijuana for medical purposes) from nuisance laws “solely on the basis of [the] fact” that they have associated collectively or cooperatively to cultivate marijuana for medical purposes." County ofLos Angeles v. Hill (2011) 192 Cal. App. 4th 861, 869. County ofLos Angeles v. Hill, supra, also held that section 11362.83 limits the authority of local municipalities to enact the type of total ban ordinance herein challenged,stating: "Thus, section 11362.83 allows a county to regulate the establishment of MMD's and their locations so long as those regulations are consistent with the provisions of the Medical Marijuana Program, sections 11362.7 through 11362.9." County ofLos Angeles vy. Hill (2011) 192 Cal. App. 4th 861, 867. Hill was thus approving the "authority to regulate the particular manner and location"(Id at 869), but also indicating that total bans as here violate section 11362.83 and section 11362.775. Respondent's enforcement action infringes upon the privileges provided by the Legislature in the MMP by completely banning the distribution of collectively cultivated physician recommended marijuana within its borders. No such authority to prohibit what state law otherwise permits was granted by the legislature when enacting the MMP nor was the word "prohibit" included in its recent amendmentof section 11362.83. Respondent has 19 in essence re-written the MMP and eliminated the ability for anyone to exercise the rights afforded under that legislation within its borders. (See, People v. Urziceanu (2004) 132 Cal.App.4" 747, 785 explaining the broader rights available under the MMP which were not available under the Compassionate Use Act) Such a stark conflict with the legislature's purpose (see, preamble to the MMP) and with §/1/362.775, compels a finding of preemption and a "conflict with general law" in violation of Cal. Const Art XI Sect 7. See, N. Cal. Psychiatric Society v. City ofBerkeley (1986) 178 Cal.App.3d 90, at 103-104, C. LOCAL ORDINANCES THAT "CONFLICT" WITH STATE LAW ARE UNCONSTITUTIONAL AND VOID BY THE DOCTRINE OF PREEMPTION. Municipalities may only "make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Cal. Const., art. XI, § 7 (emphasis added).) "Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise their power within their territorial limits and subordinate to state law. (Cal. Const., art. XT, § 7.) " (Candid Enter., Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885.).° ° The ban here touches upon a subject of statewide concern (See Legislative preamble of MMP, § 11362.7 et seq. declaring the statewide concern whenarticulating the purpose is to secure uniform application of the MMP throughout California). The appropriate interpretation of this state's medical marijuana laws is "important" and especially of "considerable importance to those who rely on cannabis for medicinal purposes". (City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 378.) Thus, the "home rule" doctrine (Cal Const. Art.XI Sect.5 Subd. (a)) does not apply here; this is not a municipal affair. See, Fiscal v. City & Co.of San Francisco (2008) 158 Cal.App.4th 895, 904 (discussing "homerule" doctrine). [T]he...Ordinance, which prohibits possession by both residents and those passing through..., legislates in an area of statewide concern. (citations omitted) It affects not just persons living in San Francisco, but transients passing through andresidents of nearbycities...." Doe v. City and County ofSan Francisco (1982)136 Cal.App.3d 509, 513."When there is a doubt as to whether an attempted regulation relates to a municipal or to a state matter, or if it be the mixed concern of both, the doubt must be resolved in favor of the legislative authority of the state [citations]." Abbott v. City ofLos Angeles (1960) 53 Cal.2d 674, 681 20 Respondent's zoning ordinances "conflicts with general law", by attempting through its police power to prohibit all association/collectives established under the authority of §//362.775 and thus employing a full assault on the core purpose of the MMP ("enhance...access" and "uniform application of the law"). In Fiscal v. City & Co. of San Francisco (2008) 158 Cal.App.4th 895, 911; the Court recognized that a local ordinanceis in "conflict with general laws" (Cal Const. Art. XI Sect.7) when it frustrates the purpose of state legislation and struck down a municipal ban on handguns; "If the preemption doctrine means anything, it meansthat a local entity may not pass an ordinance, the effect of which is to completely frustrate a broad, evolutional statutory regime enacted by the Legislature. [Respondent's ordinance banning what state law encourages] stands as an obstruction to the accomplishment and execution of the full purposes and objectives of the legislative scheme regulating [medical marijuana] in this state. For that further reason, it is preempted. (Sherwin-Williams Co. v. City ofLos Angeles, supra, 4 Cal.4th at pp. 897-898 [local legislation is preempted if it is “inimical” to accomplishmentofthe state law's policies].)" Fiscal v. City & Co.ofSan Francisco, supra., 158 Cal.App.4th at 911. Respondent's ordinance does not "enhance" access; instead, it eliminates it and prohibits it to the point that respondent has confessed they prefer to see authorized users get on California's freeways and travel to distant parts rather than allow the access permitted by state law. Nor does respondent's ordinance "assure uniform application of the law" throughoutthe state; it is the admitted goal of respondent's ordinance to contradict the expressed purpose of the MMP . Thus, this is not a "regulation" of "location" or on what rules one must comply with to become an "establishment" as the legislature now has expressly permitted under section 11362.83; instead the issue and problem with respondent's ordinance is concisely and eloquently explained by Justice Ruvolo in the Fiscal opinion; explaining that We acknowledge courts have found, in the absence of express preemptive language, that a city or county may make additional regulations, different from those established by the state, if not inconsistent with the purpose of the general law. (citations omitted) We further acknowledgethat, in spite of 21 the [MMP's] enactment, room has beenleft by the Legislature for some quantum of local ... sales regulation (citations omitted) But, this case is not one where a local entity has legislated in synergy with state law. To the contrary, here the state and local acts are irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation. (citations omitted) ...The City is not simply imposing additional restrictions on state law to accommodate local concerns; but instead, it has enacted a total ban on an activity state law allows. This difference was recognized in Great Western [Shows v. County of Los Angeles (2002) 27 Cal.4th 853], which noted that total bans are not viewed in the same manner as added regulations, and justify greater scrutiny. (Great Western, supra, 27 Cal.Ath at pp. 867-888.) Therefore, we agree that with the passage of the UHA, the Legislature has impliedly preempted local ordinances,..., which completely bans the sale of all handguns. (emphasis added) Fiscal supra, 158 Cal.App.4th at 916. In Great Western Shows v. County ofLos Angeles (2002) 27 Cal.4th 853, 868 this Court reflected on bans which could be imposed under the authority of state statutes permitting local regulation and explained they are likely preempted; "_..when a statute or statutory scheme seeks to promote a certain activity and, at the same time, permits more stringent local regulation of that activity, local regulation cannot be used to completely ban the activity or otherwise frustrate the statute's purpose. These cases are therefore distinguishable from the present one in at least two respects: First, unlike the RCRA, there is no evidence either in the gun showstatutes or, as far as we can determine,in their legislative history, that indicates a stated purpose of promoting or encouraging gun shows." (emphasis added) Great Western, supra, 27 CalAth at 868. The legislative "purpose of promoting or encouraging" that was absentin the facts in Great Western is howeverpresent here. Appellant stresses the two express purpose of the MMPis to "enhance" access to medical marijuana through the very institutions banned by respondent's ordinance and securing uniform application of the law throughout California. Appellant also stresses the MMPis the distribution system which the voters when passing the CUA asked the Legislature to pass. Thus, the MMP both encourages and promotes the conduct banned by respondent's ordinance and under those circumstances 22 "local regulation cannot be used to completely ban the activity or otherwise frustrate the statute's purpose". Great Western, supra, at 868. In Big Creek Lumber Co. v. County of Santa Cruz (2006), 38 Cal. 4th 1139 this Court again explained the difference between an ordinance which dictates WHERE certain activity permitted by state law must occur versusa total prohibition of conduct permitted by state law. The ordinanceat issue in Big Creek required certain logging operations to occur at specified locations within the county. However, key to this Court's decision was the finding that the ordinance did not ban logging operationsat all locations. Stating that; "Plaintiffs' overriding concern appears to be that localities may by locational zoning prohibit timber harvesting altogether. The ordinance before us does not havethat effect, nor does it appear that any county has attempted such a result. The zone district ordinance permits timber harvesting on parcels zoned timberland production, mineral extraction industrial, and parks, recreation and open space. To require that commercial timber harvesting occur on land in a “timberland production” or other specified zone is no more a ban on timber harvesting than a regulation requiring that industrial land uses occur on land zoned“industrial” is a ban on factories." Big Creek Lumber Co. v. County of Santa Cruz supra., 38 Cal. 4th at 1160-1161. Big Creek reasonedthat the local ordinance didn't ban conduct state law permitted; "We previously have explained that a local ordinance is not impliedly preempted by conflict with state law unless it “...forbid[s] what state law expressly mandates.” (Great Western Shows, Inc. v. County of Los Angeles, supra, 27 Cal.4th at p. 866.) That is because, when a local ordinance “does not prohibit what the statute commands...,” the ordinance is not “inimical to” the statute. (citations omitted) Here, County's ordinances are not impliedly preempted by conflict with state forestry law because it is reasonably possible for a timber operator to comply with both. The zone district ordinance does not...forbid[] what general forestry law mandates. While the forestry laws generally encourage '"maximum sustained production of high-quality timber products ... while giving consideration to" competing values (citations omitted), they do not require that every harvestable tree be cut. Accordingly, County's zoning ordinance does not conflict with state law simply because it may have the effect of placing some trees, at least temporarily, off limits to logging." Big Creek Lumber Co. v. County ofSanta Cruz supra., 38 Cal. 4th at 1161. 23 Here by contrast respondent's ordinance does not simply seek to place conduct authorized by the MMP in selected areas, or even limited areas of the city, the ordinance expressly bans what state law permits. Thus, this is not a situation wherein respondent's ordinance "may have the effect of placing sometrees, at least temporarily, off limits to logging" (/d) instead it bans state authorized conductall the time andinto the future. When one complies with section 11362.775 they are not complying with respondent's ordinance; thus, “the purported conflict is in fact a genuine one, unresolvable short of choosing between one enactment and the other.” California Fed. Savings & Loan Assn. v. City ofLos Angeles (1991) 54 Cal.3d 1, 17. This is not an attempt to enact local laws declaring where appellants institution should be located but an attempt to inject respondent's view whether the conduct already authorized by state law should occurat all and implementing that view within its municipal borders. Moreover, the "clear indication of preemptive intent" over land use regulations wasnot intended bythis court to dispense with the rule of implied preemption and was not intended to apply to a ban only ordinancesfixing "locations". As stated by this Court in Big Creek: "Thus, when local government regulates in an area over which it traditionally has exercised control, such as the location of particular land uses, California courts will presume, absent a clear indication of preemptive intent from the Legislature, that such regulation is not preempted bystate statute. (citations) The presumption against preemption accords with our more general understanding that it is not to be presumed that the legislature in the enactment of statutes intends to overthrow long-established principles of law unless such intention is madeclearly to appear either by express declaration or by necessary implication." (emphasis added) Big Creek Lumber Co. v. County ofSanta Cruz supra., 38 Cal. 4th at 1149-1150. Respondent's ordinance is not a traditional attempt to "exercised control, such as the location of particular land uses" (/d) it is an attempt to reverse andtotally ban what the legislature has authorized not just determining its "location". It is not a "long-established 24 principle[{] of law" to allow municipalities to forbid what the legislature has permitted and disguise it as a land use zoning regulation. In San Diego Tuberculosis Assoc. v. East San Diego (1921) 186 Cal. 252 this Court was called upon to address the validity of an ordinance whichprohibited all hospitals treating tuberculosis from operating anywhere within East San Diego ("heavy handed" enforcement of that goal is noted in the facts of the case). While here the case for preemption is stronger in that the legislature has expressly authorized the conduct and expressly encouraged it when they declared its purpose in the MMP, San Diego Tuberculosis Assoc is nevertheless instructive on the issue of the invalidity of respondent's ban. This Court stated: "The exercise of the police power cannot be made a mere cloak for the arbitrary interference with or suppression of a lawful business. (citations omitted) Such prohibition is very different from regulation and can bejustified only on the ground that such a hospital, no matter how well conducted, is a menace to the public peace, morals, health, or comfort. That a well-conducted, modern hospital, even one for the treatment of contagious and infectious diseases, is not such a menace, but, on the contrary, one of the most beneficent of institutions, needs no argument. There is not the slightest danger of the spread of disease from it, and this is the only possible ground on which objection could be madeto it. We have no hesitation in holding an ordinance prohibiting the maintenance anywhere within a city of an institution so necessary in our modern life and so beneficent to © be wholly unreasonable and invalid." San Diego Tuberculosis Assoc. v. East San Diego, supra, 186 Cal. at 254. The MMP presents a slightly different case than in San Diego Tuberculosis Assoc in that the legislature through the enactment of the //MP and the expression of its purpose have already made certain decisions; i.e. permitting "regulations" but not permitting bans. Such legislative declaration was absent in San Diego Tuberculosis Assoc. The legislature already weighed the risks of having medical marijuana collectives and decided that "regulat[ion]" of "location" and "establishment" under sections 11362.83 and 11362.768 was sufficient local control. Despite respondent's concerns over medical marijuana collectives, they have presented no evidence (or have been able to obtain any over the years) at all that appellants have ever created a nuisance in fact. Respondent's "prohibition is very different from regulation and can be justified only on the ground that such a 25 hospital, no matter how well conducted, is a menace to the public peace, morals, health, or comfort." Jd at 254 Respondent hasfailed to establish this standard as the very facts of this case and the determinations of the legislature in permitting regulations demonstrate that a well conducted medical marijuana collective is not a "menace to the public peace, morals, health, or comfort." /d at 254 "However laudable its purpose, the exercise of police power may not extend to total prohibition of activity not otherwise unlawful." People ex rel. Younger v. County ofEl Dorado (1979) 96 Cal. App. 3d 403, 406. "Thus there is recognized the incontestable proposition that the exercise of the police power,..., cannot extend beyondthe necessities of the case and be made a cloak to destroy...rights" created by the MMP. House v. Los Angeles County Flood Control Dist., (1944) 25 Cal. 2d 384, 388-389. While the court in House was addressing property rights, the same scrutiny should apply here-in the end this ordinance is respondent's method of stopping implementation of the MMP. Rather than regulate as directed by the legislature, respondent instead prohibits conduct the legislature already debated the wisdom ofit being able to occur. Evenlocal legislation fixing locations cannot conflict with the Legislative purpose behind statewide statutes. City ofTorrance v. Transitional Living Centers (1982) 30 Cal.3d 516, invalidated a municipal law excludingresidential treatment facilities for the mentally disturbed, finding it conflicted with the Legislature's purpose in having residential facilities. The court indicated the importance of taking the Legislative purpose into account in determiningif local legislative actions are preempted and in doing so found that a statute similar to section 11362.83 "did not permit the exclusion..." /d at 521 of state sanctioned and encouraged conduct. "It seems self-evident that...the Legislature intended to promote and encourage the treatment of mental patients within a community by limiting the ability of municipalities to discriminate, through zoning restrictions,..." (emphasis added) City ofTorrance v. Transitional Living Cntr, supra., 30 Cal.3d at 521. 26 Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, at 293, also requires this Court to find that an attempt by a municipality to ban what the state has expressly permitted (or more accurately here permitted and encouraged the conduct as part of a greater policy) is an ordinance "in conflict with general laws." (Cal. Const., art. XI, § 7) . In Cohen the preemption argumentraised wasthat a local regulatory scheme over "escort services" was preempted by the singular Penal Code section prohibiting prostitution. The court held that there being no state law at all which applied to "escort services", a city, in those circumstances, may enact regulations to prevent criminal acts such as prostitution. Howeverthe court in Cohen wasalso careful to point out that, "If the ordinance were in substance a criminal statute which attempted to prohibit conduct proscribed or permitted by state law either explicitly or implicitly, it would be preempted." /d at 293. Cohen also held that "impos[ing] a sanction for engaging in" (Cohen supra, at 295) conduct otherwise authorized by state law is sufficient to render the local ordinance void. Clearly, respondent's ordinance imposes a major sanction; abatement lawsuits seeking attorney's fees and enforced with injunctions prohibiting conduct explicitly authorized by state law and done so "solely on the basis of th[e] fact" (§11362.775) TIEPHWCis doing what the MMP otherwise permits. This is precisely what the reference to §//570 as an excluded nuisancecivil cause of action for this conduct was meantto prevent. (§/1362.775) In California Grocers Assn. v. City of Los Angeles, (2011) 52 Cal. 4th 177 this court interpreted its holding in Cohen supra, and did so consistent with appellants’ argument. The court there stated: "Thus, in Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, we upheld against a preemption challenge a local ordinance requiring a permit to provide an escort service. The state had impliedly occupied the field with respect to the criminalization of prostitution and sexual conduct. (citations omitted) Although the ordinance's likely purpose was to reduce vice and deter conduct proscribed by the state, this purpose did not support preemption: '"An ordinance is not transformedinto a statute prohibiting crime simply becausethe city usesits licensing power to discourage illegitimate activities associated with certain businesses. Mostlicensing ordinances have a direct impact on the enforcementof state laws which have been enacted to preserve the health, safety and welfare of state and local citizens. This fact does not deprive a municipality of the power to 27 enact them." (Cohen, at p. 299.) The ordinance in actual effect did not enter the field of criminalizing sexual conduct, but only controlled who might operate an escort service, leaving the regulation of any such conduct to the state; as such,it wasnot preempted." California Grocers Assn. v. City ofLos Angeles, supra, 52 Cal. 4th at 190-191, Here, respondent's ordinance seeks to ban that which the state has said it will retain full control over, i.e. the state has exclusive control over permitting the conduct participated in by appellants or not permitting it. Respondent thus is not simply seeking to "control[] who might operate" an association formed under section 11362.775 or seeking to enforce an ordinance as in Cohen that is simply "requiring a permit to provide an escort service", instead respondent's ordinance prohibits conduct authorized by state law. Here, respondent's "Ordinance [does not] promote[] the same goals as the enactment of a higher governmental authority" and "enter[s] the field that enactment preempts" (California Grocers Assn. v. City ofLos Angeles, supra, 52 Cal. 4th at 192), 1.e., enacting local laws not consistent with the MMP. The holding in O’Connell v. Stockton (2007) 41 Cal. 4" 1061 at p. 1069, requires a finding of preemption here. The court held that a provision of the Stockton Municipal Code forfeiting vehicles used to solicit prostitution was preempted by the Uniformed Controlled Substance Act (“UCSA”). Justas it has at times by respondent, it was argued by the City of Stockton in O’Connell that since the UCSA did not discuss forfeiture for prostitution, municipalities were free to legislate in that area. The O’Comnnell court rejected that method of determining if preemption existed and instead found that the UCSA was a comprehensive statutory scheme which governed forfeiture of vehicles as a penalty for specific violations of the UCSA and its pervasiveness preempted any local ordinance dealing with the same subject. Respondent has argued that because the legislature did not express their will to their level of liking they are able to ban the conduct under their authority to regulate "land use" and thus their ordinance is "consistent" with an MMP. This is similar reasoning articulated by the dissent in O’Connell v. Stockton (2007) 41 Cal.4th 1061; taking the position that if the Legislature is silent in a specific area of law, a local municipality may 28 regulate that specific area (i.e. they may forfeit cars for prostitution because the Health and Safety Code wassilent on those acts-stating: "In fact, “the [UCSA]is silent with regard to vehicles used by drug buyers” and recognizing that "The majority's reasoning, if accepted, requires preemption on an all-encompassing basis." Justice Corrigan dissenting, Id at 1077- 1078). The majority held that the dissent’s position, requiring a complete laundry list of specific areas of law over which state preemption applies, is not required; the ordinance simply needs to be "inimical to or cannot be reconciled with state law" to be preempted. Id at 1068. Thus, one looks at the effect the local law has on statewide policy created by the state's legislation not whether the legislature specifically spoke up about a subcomponent of the subject. “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.” (emphasis added) People ex rel. Deukmejian v. County ofMendocino, supra, 36 Cal.3d at p. 485. A local ordinance which bans conduct the state has 1) made lawful (section 11362.775); 2) encouraged the conduct in its expressed legislative purpose (i.e., "Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” [2003 Cal SB 420 § 1; 2003 Cal ALS 875; See, Legislature's preamble to the MMP)); 3) made the conduct part of an intended distribution system (see, Urziceanu, supra, at p.785,§11362.5 subd. (b)(1)(C)); and 4) has expressed a desire for state wide uniformity on those policies [See, Legislature's preamble to the MMP], deserves the label of "inimical" to those concepts and is preempted by state law under O’Connell. Moreover, the concerns expressed by the dissent in O’Connell are not present in this case. First the dissent in O’Connell noted the following not present in this case; "It is difficult to conclude that the Legislature intended to deprive a person of freedom for simple possession, but intended to protect an automobile from forfeiture in only very serious cases of drug manufacture and sale. Certainly the Legislature has not said that wasits intent and 29 no legislative history has been cited to support that conclusion." (Justice Corrigan dissenting, /d at 1078). The legislature had as its central purpose in passing the MMPthe creation of a distribution system in response to the voter's request to do so. The legislature expressly declared that its purpose was to "enhance" access to medical cannabis through collective cultivation projects just like the ones banned by respondent and that it wanted to secure "uniform" application of the MMP throughout California. In creating a delicate balance, the Legislature gave municipalities the ability to enact local laws "consistent" with the MMP (§11362.83) as well as the ability to "regulate" "location" and "establishment" (see, $/1362.83, $11362.768, County ofLos Angeles v. Hill, supra). Thelegislature never expressed a desire to give municipalities authority to and frustrate its central purpose. This is not a situation where "the ordinance covers an area undisturbed by the UCSA" (Justice Corrigan dissenting, Id at 1078); the very preamble to the MMP encourages the existence of these institutions. The dissent was also concerned with the blight caused by traffic which flows for the purpose of unlawful acts of prostitution and controlled substance buying, stating that "It should not be the case that local governments require the permission of the state to protect their own citizens from nuisances that profoundly affect their quality of life and the quiet enjoymentof their own property." (Justice Corrigan dissenting, Jd at 1080). That is not the case here. First, respondent's ordinance is a nuisance per ordinance which ropesin "the good the bad and the ugly". Second, respondent can't point to any nuisance in fact conduct on the part of appellants. Third, the legislature has provided extraordinary tools ($/1362.83; §11362.768) that permit municipalities to set rules of location and establishment which are more than sufficient to combat respondent's concerns over medical cannabis associations. Also applicable here is N. Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, at 103-104. There, the trial court struck down as preempted, a local ordinance which banned the use of electro shock therapy (ECT) for psychiatric patients. Just as under the MMP here, the Welfare and Institutions code in that case contained a 30 provision which gave patients the ability to choose ECT as a therapy. The purpose and history of that state statute also supported patient choice. Because the Berkeley ordinance banned the use of ECT and state law permitted a patient to chose that treatment the ordinance was struck down. Just as maintained by appellants here (1.e., local ordinance can't conflict with the purpose of statewide law), the court found Berkeley's total ban conflicted with the legislative purpose of state law and was thus preempted. "By enacting an outright, unconditional ban on the administration of ECT within its own borders, Berkeley has created an apparent conflict with the state legislative statutory scheme andits guarantee to all mentally ill persons of a right to treatment services which promote the potential of the person to function independently."'...This conclusion is supported by the history of the provisions of the LPS Act dealing with ECT." (emphasis added) Jd at 104. The court concludedthat: "In light of this legislative history...we conclude that the total ban on ECT contained in Berkeley's Ordinance 5504is in direct conflict with the Legislature's intention both that ECT be available...and that the free choice of every psychiatric patient to take or not take ECT be protected." (emphasis added) Id at 105-106. N. Cal. Psychiatric Society dictates that a municipality can't ban a controversial medical treatment the state has expressly permitted citizens to use. The Attorney General has also issued an opinion regarding preemption of the MMP overlocal legislation which merits serious consideration; it, articulates that “a city program that defined ‘attending physician’ and ‘primary caregiver’ more narrowly than state law would be preempted to the extent that it prohibited what state law expressly permitted.” (80 Opinions California Attorney General 113, 117-118, 2005 Cal. AG LEXIS 17 (2005).) A ban on permitted activities thus is preempted under the Attorney General's analysis. Respondent's ordinance is thus "prohibiting conduct...permitted by state law" (Cohen supra, 293) and because here the conduct is expressly authorized by state law ($11362.775) it is "conduct... permitted by state law...explicitly or implicitly, [and] it would be preempted." (Cohen supra at 293.) 31 Further, the Legislature has explicitly provided, in $/1362.83 that a local governing body will exclusively be allowed to adopt and enforce laws “consistent with” the MMP and its comprehensive scheme which includes dozens of statutes addressing just about every area of the subject which the legislature could conceivably cover. There is a clear indication by the Legislature that ANY local ordinance that is not “consistent with” the MMP (i.e., bans what it permits) will be preempted by the MMP. ’[Bly enacting an outright, unconditional ban on the administration of [medical marijuana] within its borders" (N. Cal. Psychiatric Society v. City ofBerkeley (1986) 178 Cal.App.3d 90, at 103-104) respondent "has created an apparent conflict with the state legislative statutory scheme and its guarantee to all [qualified medical cannabis patients]" ( Jd.) of uniform application of the law, of enhanced access, of the right to associate in order to obtain cannabis and the ability to form collectives as encouraged by the Legislature (See, Legislative Preamble at §//362.7) and provided for by $11362.775.) I. THE DECISION IN QUALIFIED PATIENT’SASS’N V. CITY OFANAHEIM, WHILE NOT EXPLICITLY DECIDING THE ULTIMATE ISSUE OF WHETHER THE MMP PREEMPTS MUNICIPAL ORDINANCES PROHIBITING CONDUCT APPROVED UNDER THE MMP, IT ABROGATED ARGUMENTSRAISED BY RESPONDENTIN SUPPORT OF A BAN ON ASSOCIATION / COLLECTIVES. Qualified Patient’s Association v. City ofAnaheim,infra, addressed arguments raised by respondent in defense of a total ban on association/collectives. A. CLAREMONTV. KRUSE AND CORONA V. NAULLS ARE DISTINGUISHABLE FROM THEFACTSIN THE PRESENT CASE. "A litigant cannot take shelter under a rule announcedin a decision that is inapplicable to a different factual situation in his own case,..." Harris v. Capitol (1991) 52 Cal.3d 1142, 1157. The court in OPA v. City ofAnaheim (2010) 187 Cal.App. 4" 734, foundthat City ofClaremont v. Kruse (2009) 177 Cal.App.4th 1153, at 1175° and City of * Holding thatin light of the language of section 11362.83 establishment of a "temporary moratorium" was not preemptedbystate law. 32 Corona v. Naulls (2008) 166 Cal.App.4" 418' were limited to temporary moratoriums and not applicable to total bans on association / collectives. (See, OPA v. City ofAnaheim (2010) 187 Cal.App.4" 734, {n.4.) Here, respondenthas not just enacted a temporary moratorium pursuant to Government Code §65858 as was the case in City of Claremont, supra and City ofCorona, supra. (City of Claremont, supra, 177 Cal.App.4th 1153, at 1160.) Respondent has bannedall association collectives, even if in one's home,in a tent or a cardboard box in the driveway. (See, CT 54 for definition of "Medical Marijuana Dispensary" under the Riverside Municipal Code) Respondent's banis also enforceable with criminalsanctions. (See, Riverside Municipal Code $1.01.080, violation ofcity zoning ordinance is a misdemeanor.) "Neither case can be properly read to extend that limited preemption inquiry to a case such as this one involving a local government's attempt to enact an absolute andtotal ban...on all property, public and private, within its geographic jurisdiction." Fiscal v. City and County ofSan Francisco (2008) 158 Cal. App. 4th 895, 918. The issue before the court in City of Claremont, supra, was whether the MMP “preempts the city's enactment of a moratorium"..." (/d at 1168). The court reviewed $11362.83 and determined that an adoption of a "temporary moratorium" was not preempted. (/d at 1175.) Nothing in City of Claremont sanctions a complete ban; City of Claremont, simply did not consider a total permanent ban andif those specific actions by a municipality are "consistent" with the MMP.(See, §/1362.83) City of Corona, supra, also did not consider whether the ordinance was preempted by state law; the court explicitly stated it would not reach or rule on that issue. Jd at 425 Instead, the court in City of Corona, supra, focused on whether the trial court’s legal interpretation that “[a]Jny use not enumerated [in the City’s municipal code] is presumptively prohibited”, was legally correct. (City of Corona, supra, 166 Cal.App.4” 418, 430.) In the present case the local ordinance expressly excludes the medical ’ The court in City ofCorona, supra, focused on whetherthere wassufficient legal basis for the court’s finding that “[a]ny use not enumerated [in the City’s municipal code] is presumptively prohibited.” 33 marijuana association as a permitted use. The issue of preemption was simply not raised nor considered by the court in City ofCorona, supra asit pertainsto a total ban. “TBloth cases [City of Claremont and City of Corona] involved temporary moratoriums rather than the permanent dispensary ban alleged here. Again cases are not determinative for issues not considered.” (QPA v. City ofAnaheim (2010) 187 Cal.App.4” 734, fn.4.). B: THE DECISION IN ROSS V. RAGING WIRE IS NOT AUTHORITY PERMITTING MUNICIPALITIES TO COMPLETELY BAN ASSOCIATION/ COLLECTIVES. The decision in Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal.4 920 (Ross) did not establish authority permitting municipalities to completely ban association / collectives. Specifically, OPA, supra, held that the decision in Ross, supra, “did not involve the MMPA.... [‘An opinionis not authority for propositions not considered.’]” OPA v. City ofAnaheim, supra, 187 Cal.App. 4" at 754. Moreover, as observed by this Court in Ross, "Plaintiff's interpretation might be plausible if the failure to infer a requirement of accommodation would render the statute meaningless, but such is not the case." Ross v. Raging Wire Telecommunications, Inc. supra, 42 Cal.4"at 931. Here,the legislature's purpose behindthe creation of the MMP and what it permits under section 11362.775 would be meaningless if municipalities could ban the conduct altogether. The absurd results would be to have concentrated pockets permitting the conduct and qualified patients having to travel unknowndistances. In referring to one of the statutes in the MMP whichprovided that no accommodationsat the place of employment are required, the court in Ross also observed that "In any event, given the controversy that would inevitably have attended a legislative proposal to require employers to accommodate marijuana use, we do not believe that Health and Safety Code section 11362.785, subdivision (a), can reasonably be understood as adopting such a requirement silently and without debate." Id at 931. Here,the silence and lack of legislative debate absent in Ross is instead present here. The legislature expressed that its central purpose in enacting the MMP wasto 34 enhanceaccess of medical cannabis through collectives formed under the authority of section 11362.775; the legislature was aware that some local control would be needed and thus created section 11362.83 and permitted local laws "consistent" with the MMP.Later the legislature expanded on this concept by amending section 11362.83 and also creating new legislation (section 11362.768) permitting local laws which "regulate" "location" and "establishment" but with the requirementtheystill be "consistent" with the MMP. Certainly the legislature was not assumingthe absurd,i.e., that the conduct authorized by section 11362.775 and encouragedin their preamble to the MMP would occur on floating barges in the Pacific Ocean. Instead, the language of the MMP makesit unmistakable the conduct would occurat various land locations throughout California. OPA noted as much when they foundthat; "Unlike in Ross,..., the MMPAexplicitly touches on land use law by proscribing in sections 11362.765 and 11362.775 the application of sections 11570, 11366, and 11366.5 to uses of property involving medical marijuana. Here...., it appears incongruousatfirst glance to conclude a city may criminalize as a misdemeanora particular use of property the state expressly has exempted from “criminalliability” in sections 11362.765 and 11362.775." OPA v. City ofAnaheim, supra, 187 Cal.App.4" at 754. While here the issue is enforcement through injunction and not a criminal proceeding, the "proscribing in sections 11362.765 and 11362.775 the application of sections 11570" (/d) lends to the sameresult; i.e. "it appears incongruousat first glance to conclude a city may [declare a nuisanceperse] a particular use of property the state expressly has exempted from [civil nuisance cause of actions] in sections 11362.765 and 11362.775". Id at 754. C: CITY OF CLAREMONTV. KRUSE CONFLICTS WITH VARIOUS HOLDINGS OF THE CALIFORNIA SUPREME COURT AND WITH HOLDINGS OF THE CALIFORNIA COURTS OF APPEAL AND LIKELY WAS WRONGLYDECIDED AS THE DECISION IS EXCLUSIVELY BASED ON CLEARLY WRONG ASSUMPTIONS AND PREMISES. The holding in City of Claremont, supra, conflicts with this Court's decisions in Cohen, supra, 40 Cal.3d 277 [holding that any ordinance which prohibits conduct authorized by state law is preempted.]; City ofTorrance, supra, 30 Cal.3d 516 [holding 35 that a statute similar to Health and Safety Code section 11362.83 “did not permit the exclusion...” of otherwise state sanctioned and encouraged conduct.]; and O’Connell, supra, 41 Cal.4” 1061 [holding that local legislation which is "inimical" to a state wide law is preempted]. Moreover, the following statement (“The MMPdoesnot address the licensing or location of medical marijuana dispensaries, nor does it prohibit local governments from regulating such dispensaries." City ofClaremont, supra 1175) is precisely the approach rejected by the O’Connell majority (what is not expressly included in state law the cities may occupy). In that light City ofClaremontstarkly conflicts with the holding and approach in O’Connell, supra, 41 Cal.4" 1061. See, Auto Equity Salesv. Superior Court (1962) 57 Cal.3d 450, at p. 456. City of Claremont, supra, conflicts with several court of appeal decisions (N. Cal. Psychiatry Society v. Berkeley (1986) 178 Cal.App.3d 90, at pp. 103-104 (discussed supra); A & B Cattle Co. v. Escondido (1987) 192 Cal.App.3d 1032 (holding that state law on drug paraphernalia was sufficient to exclude regulation in other areas not covered by state law because local laws would "burden" state law); People v. Urziceanu (2004) 132 Cal.App.4” 747, at p. 785). A two year moratorium is not a "regulation" on "establishment" or "location" as permitted by section 11362.83, but instead a 2 year complete ban and a heavy burden on those in the local community who are qualified patients who wishto associate and form a collective. Its rationale is also wrong. City of Claremont makes the incorrect allegation that "Medical marijuana dispensaries are not mentioned in the text or history of the MMP". City of Claremont at 1175. Perhaps the "text and history" were not written with the vernacular the City of Claremont panel was searching for, because the phrase "medical marijuana dispensary" is not mentioned anywhere in the MMP. Given the "dramatic change in the law" (See, Urziceanu supra,785) the Legislature created by enacting $11362.775, including its exemption from sales laws, and the provision for the creation of medical marijuana qualified patients "associations" (the Legislature's chosen vernacular), City of Claremont was wrong to conclude the subject of medical marijuana 36 collectives was "not mentioned in the text or history of the MMP". City of Claremontat 1175. The enactment of the MMP hasas its express purpose the "enhance[ment]" of availability to qualified patients through these very institutions and the section permitting for the creation of "associations" ($/1362.775) was the Legislature's response to the voter's demand when they enacted proposition 215 that they create methods for the safe distribution. (See, Urziceanu supra,785) Kruse was wrong when it concluded that "dispensaries" were not discussed in the "text and history" of the MMP; quite to the contrary the Legislature enacted statutes (§/1362.775) allowing for the proliferation of "association[s]" and made the existence of them a central goal to meet its objectives(1.e., "enhance the access") as one of its express purposes and even enacted provisions prohibiting conduct in certain locations (§ 11362.79 and §11362.785) and limited municipal authority, only permitting ordinances "consistent" ($/1362.53) with the MMP, and expressly allowing only "regulation" of "establishment" and "location". The City ofClaremont decision is also wrongly decidedin that it failed to note that § 11570 is exclusively civil in nature, and failed to note the immunities provided by §11362.775 were not limited to criminal matters; it incorrectly stated: "The operative provisions of the MMP...provide limited criminal immunities under a narrow set of circumstances." City of Claremont at 1175. "[T]he Legislature [ ] exempted those...who collectively or cooperatively cultivate marijuana for medical purposes from...the laws declaring the use of property for these purposes a nuisance.” People v. Urziceanu (2004) 132 Cal. App. 4th 747, 785. City of Claremontdid not include a reasonable interpretation of §/1362.775 and $11362.83; its holding is in direct conflict with the MMP's express legislative purpose. The Cannon of statutory interpretation which dictates that a "court should not adopt a statutory construction that will lead to results contrary to the Legislature's apparent purpose" (People ex rel. Lungren v. Superior Court, supra, 14 Cal. 4th at 305) was apparently not applied. While the opinion mentionsthat it referred to the "text or history of the MMP" (City of Claremont at 1175) the opinion does not articulate the legislative 37 preamble nor explain how it is that allowing a lengthy 2 year ban ("moratorium") "enhances the access" or creates "uniform application" of the /MP throughoutthestate. Undernostretch of logic can a local ordinance banning conduct explicitly made part of a statewide policy be "consistent with the article" ($ //362.83) when one applies the express purpose of the MMP which is to "enhance the access" to all patients, secure "uniform and consistent application of the act among the counties" and "promote the fair and orderly implementation of the act". (Stats. 2003, ch. 875, § 1; 2003 Cal ALS 875 § 1) Allowing every municipality in California to enact local ordinances banning what the MMP encouraged is not the "uniform and consistent application of the act among the counties" the Legislature wanted. IV. RESPONDENT'S REFUSAL TO OBEY THE MMP ON THEBASIS THATIT VIOLATES THE FEDERAL CONTROLLED SUBSTANCEACT, VIOLATES THE STATE CONSTITUTION'S PROHIBITION ON ADMINISTRATIVE AGENCIES REFUSAL TO OBEY LAWS WHEN THEY CONFLICT WITH FEDERAL LAW. Respondent has relied on Riverside Municipal Code $19.150.020 which “strictly prohibits any use which is prohibited by state and/or federal law.” While respondent abandoned this justification, it is nevertheless a justification for the ban expressed in respondent's ordinance. Article Il, Section 3.5 of the California Constitution prohibits the rationale respondenthas put forth for banning defendant’s otherwise lawful conduct "{S]ection 3.5 of article III...withholds from administrative agencies the powerto determine the constitutional validity of any statute..." (Greener v. W.C_A. Board (1993) 6 Cal.4th 1028, 1038.) "[t]here are no decisions holding that federal law renders the [MMP] Act unconstitutional or otherwise unenforceable.” County of Butte v. Superior Court, Supra., at 740. . OPA yv. Anaheim (2010) 187 Cal.App.4" 734 recently held, that the California CUA and MMParenot preempted by federal law. OPA v. City Anaheim at 757. 38 Further, the court in OPA, supra, held that local municipalities do not have the authority to enforce federal law; “Just as the federal government may not commandeer state officials for federal purposes, a city may not stand in for the federal government and rely on purported federal preemption to implement federal legislative policy that differs from corresponding, expressstate legislation concerning medical marijuana." (/d. at 757) Ourstate's medical marijuana laws cannot be ignored byourstate officials because they conflict with federal law. (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4” 798; County ofButte v. Superior Court (2009) 175 Cal.App.4th 729, 740; City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 385; People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1445-1447. Federal law does not requires respondent ban medicalmarijuana collectives. CONCLUSION Respondent's ordinance bansactivities which are otherwise lawful under express state law and is thus preempted by the Medical Marijuana Program asit interferes with the express purposeofthe legislation. Dated: February 14, 2012 LE J. DAVID NICK Attorney for Appellants 39 WORD COUNT CERTIFICATE PER RULE8.360 (b)(1) 1 J. David Nick certify that this brief contains 13,729 words pursuant to the Word program used to create this brief. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 15, 2012 at San Francisco, California. f . Lf Jelk J. PAVIDNICK 40 PROOF OF SERVICE I, the undersigned, declare as follows: I am employedin the City and County of San Francisco, State of California; I am over the age of eighteen years and not a party to the within entitled action; my business addressis 345 Franklin Street, San Francisco, CA 94102. On this date, I caused to be served a true copyofthe attached document(s): APPELLANTS' BRIEF ON THE MERITS BEFORE THE CALIFORNIA SUPREME COURT on parties namedbelow,addressedas follows: JEFFREY V. DUNN, (COUNSEL FOR RESPONDENT) Best, Best & Krieger, 5 Park Plaza, Suite 1500 Irvine, CA 92614 NEIL OKAZAKI (DEPUTY RIVERSIDE CITY ATTORNEY) 3900 Main Street Riverside, CA 92522 SUPERIOR COURT Clerk of the Superior Court, Riverside County 4050 Main Street Riverside, CA 92501. Court of Appeal, 4th Dist, Div 2 3389 12th Street Riverside, CA 92501. Law Office Of E. D. Lerman (PERSONAL SERVICE) (x) BY MAIL: I placed said documents in a sealed envelope, with the appropriate postage thereon fully prepaid for first class mail, for collection and mailing at San Francisco, California, following ordinary businesspractices. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 15, 2012 at San Francisco, California. { ‘ “ L J. DAVID NIGK ~ 4]