P. ex. rel., City Attorney of the City of San Jose v. Revere Group, LLC CA6 ( 2021 )

Filed 3/30/21 P. ex. rel., City Attorney of the City of San Jose v. Revere Group, LLC CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE ex rel., CITY ATTORNEY H046087
OF THE CITY OF SAN JOSE et al., (Santa Clara County
Super. Ct. No. CV320176)
Plaintiffs and Respondents,
v.
REVERE GROUP, LLC et al.,
Defendants and Appellants.
A Rastafarian church in San Jose provided marijuana to its members, in violation
of an ordinance that allows marijuana distribution only if an entity is registered with the
city as a cannabis business. The city sued for public nuisance and the trial court issued a
preliminary injunction ordering the church to stop distributing marijuana. In this appeal,
the church initially contended the trial court erred in issuing the preliminary injunction
for several reasons, chiefly that the city’s restrictions on marijuana distribution
unconstitutionally infringe on the free exercise of religion. At oral argument, counsel for
the church explicitly abandoned the free exercise argument. We reject the appellants’
remaining contentions and will affirm the order granting the preliminary injunction.
I. BACKGROUND
California changed its marijuana laws in 2016, from allowing marijuana solely for
medical purposes to allowing it for adult recreational use as well. (City of Vallejo v.
NCORP4, Inc. (2017) 15 Cal.App.5th 1078, 1081; Health & Saf. Code, § 11362.1,
subd. (a)(1).) In keeping with that change, the City of San Jose amended its land use
regulations, which had permitted limited distribution of medical marijuana, to also allow
nonmedical distribution. The city regulates both kinds of distribution through a
registration system.
The San Jose Municipal Code requires registration to distribute, transfer, or sell
marijuana in the city. (San Jose Municipal Code (SJMC) § 6.88.300.) Registration is
accomplished by filing a registration form, paying the required fees, and receiving a
notice of completed registration from the city manager. (SJMC § 6.88.300(A).) Not
everyone is eligible to register, however. In fact, almost no one is: only businesses the
city had previously approved to distribute medical marijuana—there are 16 of them—
may even apply. (SJMC § 6.88.300(E).)
Coachella Valley Church is a Rastafarian church in San Jose.1 In the Rastafarian
religion, marijuana is a sacrament. The church holds services on Sundays where
marijuana is offered to and used by attendees. The church also sells marijuana to its
members. On the first floor, there are display cases with various marijuana products; a
price list is posted on the wall. After filling out a membership application and becoming
a church member, a person can purchase marijuana. The church advertises on
weedmaps.com, a website that bills itself as “the most reliable online resource to find
cannabis storefronts.”
In the spring of 2017, the San Jose code enforcement department started receiving
complaints about marijuana being sold at the church. A code enforcement officer who
1
The city disputes that Coachella Valley Church is a legitimate religious
organization, asserting it is not coincidental that the same property was previously home
to an unregistered medical marijuana dispensary called “Amsterdam’s Garden,” and the
church was founded only after the city sued to enjoin operation of that dispensary. But
since resolving that factual dispute is not necessary to decide the issues presented by this
appeal, we will assume the church is a legitimate entity.
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inspected the property confirmed marijuana was offered for sale there and that the church
was not registered with the city as a cannabis business.
The city sued for abatement of public nuisance, alleging the church was violating
the municipal code by distributing marijuana without being properly registered. Named
as defendants were the church and a number of other individuals and entities alleged to
be either owners of the property or otherwise involved with the marijuana distribution.
The city also sought a preliminary injunction to prevent any of the defendants from
distributing marijuana during the lawsuit.
The trial court granted preliminary injunctive relief, prohibiting all defendants
from distributing marijuana on church property or allowing the property to be used in any
way that constitutes a public nuisance. The church and two other defendants, property
owners Revere Group, LLC and Tsars, LLC, appeal the injunction.
II. DISCUSSION
A preliminary injunction is a provisional remedy designed to prevent irreparable
harm during the time it takes to determine the merits of a lawsuit. Since the moving party
has not yet proven its case, a trial court deciding whether to issue a preliminary injunction
must seek to minimize the harm an erroneous interim decision may cause. (IT Corp. v.
County of Imperial (1983) 35 Cal.3d 63, 73.) The court must consider “two interrelated
factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative
balance of harms that is likely to result from the granting or denial of interim injunctive
relief.” (White v. Davis (2003) 30 Cal.4th 528, 554.) In a case like this one, where the
plaintiff is a government entity seeking to enjoin illegal activity, it is presumed that the
harm to the public from the statutory violation outweighs the harm to the defendant from
the injunction. (IT Corp. v. County of Imperial, supra, at p. 72.) As a result, unless “the
defendant shows that it would suffer grave or irreparable harm from the issuance of the
preliminary injunction,” the court need not examine the relative harms to the parties.
(Ibid.)
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The appellate standard of review for a preliminary injunction depends on what
kind of error the appellant contends the trial court made. “[F]actual findings made by the
trial court must be accepted if supported by substantial evidence, the decision to issue a
preliminary injunction is reviewed for an abuse of discretion, and questions of law are
reviewed de novo.” (People ex rel. Feurer v. FXS Management, Inc. (2016)
2 Cal.App.5th 1154, 1159.) Since the issues raised by the church and property owners
are questions of law, our review here is de novo.
A. THE ORDINANCE DOES NOT VIOLATE EQUAL PROTECTION
The church contends the ordinance allowing only previously registered medical
marijuana dispensaries to distribute marijuana violates the constitutional guarantee of
equal protection of the laws. “The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to any person within its jurisdiction the
equal protection of the laws,’ which is essentially a direction that all persons similarly
situated should be treated alike.” (City of Cleburne v. Cleburne Living Ctr. (1985)
473 U.S. 432, 439.) “The general rule is that legislation is presumed to be valid and will
be sustained if the classification drawn by the statute is rationally related to a legitimate
state interest.” (Id. at p. 440.) (A more demanding standard applies if the classification is
inherently suspect, such as by race or gender.) (Ibid.)
We presume the ordinance is valid and we look to the record to discern whether
the city has articulated a rational basis for the preferential treatment of existing medical
marijuana dispensaries. The church argues that the city’s sole justification for enacting
the ordinance is reducing the administrative burden of processing application paperwork
from potential registrants. The church is incorrect on that point. The city’s stated reason
for limiting distributors to previously approved medical marijuana dispensaries is that the
dispensaries have shown an ability to comply with the numerous regulations in the
municipal code for marijuana distribution businesses (such as background checks for
employees and maintaining detailed transaction records), and have a demonstrated
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history of not adversely affecting neighboring property. The city has decided that
allowing only existing medical marijuana dispensaries to distribute marijuana will lower
the risk of noncompliance with regulations and make marijuana distribution less likely to
cause a health and safety problem. The city’s reasoning is rational.
The church questions the wisdom of the city’s legislative decision, arguing that
allowing more cannabis distributors would be an overall benefit to the city because they
would generate more tax revenue. But merely pointing out that a different legislative
decision with different policy goals could also rationally have been made does not render
this decision irrational.
The church also complains that the ordinance allows only a small number of
entities to reap what it asserts are the lucrative monetary benefits associated with
distributing marijuana, and that no one else can obtain a distribution license unless an
existing licensee does not reapply or is denied an annual renewal. But the church neither
explains how that violates the equal protection clause nor cites any authority suggesting it
does. Having found a rational basis for the ordinance, we conclude there is no equal
protection violation in granting registration preference to previously authorized
distributors.
B. THE INJUNCTION DOES NOT VIOLATE DUE PROCESS
The owners of the property where the church is located contend that the
injunction, which prohibits them from “ ‘making marijuana available at the Subject
Property for any purpose,’ ” violates their constitutional right to due process.
(U.S. Const., 14th Amend.) The property owners argue it is impossible for them to
comply with the injunction because they “cannot be subject to an injunction regulating
the actions of the Church.” But the argument ignores that the injunction directly
prohibits the property owners, in addition to the church, from distributing marijuana. The
property owners have not articulated why it is not possible for them to comply with an
order that they not distribute marijuana. There is no due process violation.
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C. THE INJUNCTION DOES NOT IMPOSE CRUEL OR UNUSUAL PUNISHMENT
The property owners contend that prohibiting them from distributing marijuana
constitutes cruel and unusual punishment in violation of the Eighth Amendment to the
United States Constitution. They argue that the Eighth Amendment prevents prosecution
for a criminal offense defined by one’s status rather than one’s conduct. (See Robinson v.
California (1962) 370 U.S. 660, 666.) But there has been no criminal prosecution; this is
an appeal from a preliminary injunction in a civil enforcement action. The municipal
code does make maintaining a public nuisance a misdemeanor, as does state law.
(SJMC § 1.08.010(A); Pen. Code, § 372.) Rather than prosecute the property owners for
a misdemeanor, the city elected to pursue civil enforcement. The resulting preliminary
injunction does not derive from prosecution for any crime, status or otherwise.
D. UNREGISTERED MARIJUANA DISTRIBUTION IS A NUISANCE
PER SE UNDER THE MUNICIPAL CODE
The church and the property owners contend that the city has not shown a
likelihood of prevailing in its action for abatement of a public nuisance because the
church is not creating a nuisance. They argue that providing marijuana to the church’s
600 members does not substantially and unreasonably interfere with collective social
interests, which is how a public nuisance is generally defined. (See, e.g., People ex rel.
Gallo v. Acuna (1997) 14 Cal.4th 1090, 1104.) But the church and property owners
ignore the concept of nuisance per se, the theory under which the city proceeds here.
“[A] a nuisance per se arises when a legislative body with appropriate jurisdiction,
in the exercise of the police power, expressly declares a particular object or substance,
activity, or circumstance, to be a nuisance.” (Beck Development Co. v. Southern Pacific
Transport Co. (1996) 44 Cal.App.4th 1160, 1206–1207.) Generally a nuisance is defined
as “[a]nything which is injurious to health, or is 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[.] … This requires consideration and balancing of a variety of factors.
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[Citations.] However, where the law expressly declares something to be a nuisance, then
no inquiry beyond its existence need be made and in this sense its mere existence is said
to be a nuisance per se.” (Ibid.)
The San Jose Municipal Code provides that violation of the ordinance regulating
cannabis distribution is a nuisance. (SJMC § 6.88.820 [“as a nuisance per se, any
violation of this Chapter shall be subject to injunctive relief”].) The city has shown that
the church has violated the relevant code provisions, which is all that is required for a
nuisance per se.
E. THE INJUNCTION IS NEITHER VAGUE NOR OVERBROAD
The church and property owners contend that the injunction is too vague to
comply with, and overbroad because it is a general command to obey the law. In
particular, they take issue with the injunction’s order to refrain from “operating,
conducting, using, or occupying the subject property, or in any way permitting the
operation, use, or occupation of the subject property, as a public nuisance pursuant to the
San Jose Municipal Code.”
An injunction must be sufficiently precise to give persons of ordinary intelligence
fair notice of what conduct is forbidden. (People ex rel. Gallo v. Acuna, supra,14 Cal.4th 1090, 1115.) That standard is satisfied by the order prohibiting use of the
property in a way that the San Jose Municipal Code has declared to be a nuisance.
Further, it is not a command to simply obey all laws, which would be impermissible
because it would allow contempt proceedings for any new violation, without regard to the
original allegations. It is instead an order to “restrain the person from committing similar
or related unlawful activity,” which is permissible. (City of Redlands v. County of San
Bernardino (2002) 96 Cal.App.4th 398, 416.)
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III. DISPOSITION
Appellants’ and respondents’ requests for judicial notice are denied, as the
proffered documents are unnecessary to resolve the appeal. (See People ex rel. Lockyer
v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)
The order granting a preliminary injunction is affirmed. Respondents are awarded
costs on appeal.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Danner, J.
H046087 – The People ex rel., City Attorney of the City of San Jose et al. v. Revere Group,
LLC et al.