Public Nuisance

California Appeals Court Upholds the City of Dana Point’s Nuisance Action against Medical Marijuana Dispensary

In 2010, the City of Dana Point (the “City”) filed an action against David Lambert (“Lambert”) and the dispensary he operated, Beach Cities Collective (“BCC”) alleging abatement under the narcotics abatement legislation (Section 11570), public nuisance, violation of the City’s zoning code, and unfair business practices. The City’s specific allegations were that BCC was not a collective or cooperative as required, was not operating as a nonprofit entity, was not comprised solely of patients and primary caregiver members, and was not purchasing marijuana from or selling to those members.

During the discovery period, Lambert refused to answer a majority of the questions during his deposition and in written discovery by invoking the Fifth Amendment. BCC claimed that it kept records of all patients that obtain medical marijuana as well as verifying that they had an actual prescription from their physician. The City moved for summary judgment on its abatement and public nuisance claims arguing that BCC had “failed to produce any evidence in support of the only possible affirmative defense,” which was compliance with state medical marijuana law. The summary judgment motion also argued that BCC was in violation of the public nuisance law because it violated zoning when it distributed marijuana. The City’s zoning law bans dispensaries by not recognizing them as a permitted use. BCC asserted that there were genuine issues of material fact, but the trial court granted the City summary judgment. This was reversed and remanded on appeal.

After a new trial on remand, the trial court dismissed Lamberts cross-claim against the City challenging the City’s ban on dispensaries for lack of standing. The court also found in favor of the City holding that BCC was actually a for-profit corporation, did not enforce its membership application, and failed to distribute only lawfully cultivated marijuana. Lambert appealed.

The Court of Appeals affirmed and held that the trial court,

[R]easonably could determine the questions Lambert did not answer and the admissible evidence he did provide, including the declarations and other submissions in opposition to summary judgment, simply did not carry the day in establishing BCC’s marijuana activities were lawful….[w]e therefore find no merit in Lamberts challenge asserting the trial court to prohibited inferences.

The Court of Appeals also did not give weight to Lambert’s arguments regarding the trial court’s exclusion of evidence or the trial court’s failure to exclude the City’s expert witness.

Lastly, the Court of Appeals agreed with the lower court that Lambert did not have standing for his cross-claim against the City challenging the City’s ban on dispensaries because the California Supreme Court had recently upheld local bans on dispensaries. See City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 300 P.3d 494 (Cal. 2013).

Minnesota’s nuisance statute, Section 561.01 states a nuisance is, “[a]nything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance. An action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance, and by the judgment the nuisance may be enjoined or abated, as well as damages recovered.”

In Minnesota, some cities have placed moratoriums on allowing either medical marijuana manufacturer from operating dispensaries within their respective cities, but none have alleged the dispensaries themselves are a “public nuisance.”