California Appellate Court Addresses Prohibition in Medical Marijuana Dispensary Ordinance Referendum Opinion

In County of Kern v. T.C.E.F., Inc., et al., a California Court of Appeal determined that, upon receipt of a referendum petition containing a sufficient number of signatures, the only action a county board of supervisors may take is to entirely repeal the ordinance subject to the referendum. While cities are already statutorily subject to a one-year ban from enacting a substantially similar ordinance to an ordinance repealed by referendum petition, the California Legislature has never added a similar prohibition to county or special district election requirements. However, basing its decision on case law analyzing the city’s statutory prohibition, the Fifth District Court of Appeal determined that counties should also be subject to a similar ban.

In 2009, the Kern County Board of Supervisors added Chapter 5.84 to the County Code authorizing medical marijuana dispensaries, subject to few restrictions. In 2011, the County amended Chapter 5.84 to ban all medical marijuana dispensaries.

A referendum petition protesting the 2011 ordinance was timely submitted to the County with a sufficient number of signatures. Pursuant to Elections Code section 9145, the Supervisors adopted an ordinance repealing Chapter 5.84 in its entirety. In doing so, the County argued, both the 2009 and 2011 ordinances were repealed. As a result, the County Code no longer permitted medical marijuana dispensaries, and such dispensaries were deemed prohibited from operating in the County.

In 2014, the County filed a civil complaint to close down a dispensary, alleging it violated the County Code. The trial court directed the dispensary to stop operating. However, the Court of Appeal overturned the trial court’s ruling last week, finding that the Elections Code required the County to “entirely repeal the ordinance” subject to referendum. To “entirely repeal the ordinance” the Court concluded that the County 1.) must repeal the 2011 ordinance entirely, and .2) cannot take additional action (repealing the 2009 ordinance) that has the practical effect of implementing the repealed 2011 ordinance.

The Court of Appeal noted that cities have a statutory one-year ban on re-adopting a repealed ordinance, but counties do not. However, basing its opinion on case law relating to cities, the court concluded that a county cannot implement the essential features of a repealed ordinance. Instead, it may only return the law to the status quo ante – the situation that existed before the repealed ordinance was adopted. Thus, the County’s repeal of Chapter 5.84 in its entirety, which resulted in a prohibition on medical marijuana dispensaries, created the same outcome as the 2011 ordinance’s ban on medical marijuana dispensaries, which was subject to the referendum. Therefore, the County did not “entirely repeal” the ordinance subject to the referendum.

This case creates a common law prohibition on a county’s ability to take legislative action after a referendum petition which is similar to the statutory one-year ban applied to cities. Additionally, while not addressed in this case, this ruling creates the same common law prohibition for special districts. Most special districts operate under either the Uniform District Election Law, which references back to the county statutes on referenda, or are required by their principal act to follow county requirements. However, it is unclear how long a county or special district must wait after repealing an ordinance subject to a referendum petition to adopt a substantially similar ordinance.

*BB&K is working with Kern County to analyze the County’s opinions in light of this decision.

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