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Pot Dispensary Fails to in Bid to Challenge County Regulation

A lawsuit challenging Sonoma County's ordinance regulating the location and operation of medical marijuana dispensaries has been dismissed because it was not brought within the 90-day statute of limitations.

Regardless of the substantive merits of a case, the procedural requirements of the statute of limitations must first be met. In this case, the owner of a Guerneville medical marijuana dispensary called Marvin's Gardens Cooperative attempted to cast his lawsuit as an "as-applied" challenge to the county's 2007 ordinance regulating dispensaries. Sonoma County Superior Court Judge Robert Boyd agreed with cooperative owner that the lawsuit fell within the appropriate limitations period because the lawsuit was brought within 90 days of a county order demanding that Marvin's Gardens cease business because it did not have a use permit. The county issued the "stop order" in October 2009.

The county appealed the trial court's decision, arguing that the 90-day statute of limitations began to run when the ordinance took effect in April 2007. The October 2009 stop order was based on that ordinance.

A unanimous three-judge panel of the First District Court of Appeal agreed with the county. The court found that the only valid challenges brought by the plaintiff were to the face of the ordinance, not to the way the county applied the ordinance to Marvin's Gardens. Additionally, the cooperative had not attempted to obtain a use permit as required by the ordinance, which made any as-applied challenge not ripe for court review.

The cooperative owner argued the suit was an as-applied challenge and could therefore include certain facial challenges under Travis v. County of Santa Cruz, (2004) 33 Cal.4th 757 (see CP&DR Legal Digest, September 2004). In Travis, the state Supreme Court ruled that an as-applied suit is not untimely "merely because the theory of challenge is the facial invalidity of the ordinance upon which the permit or condition is based."

However, the First District rejected the dispensary owner's statements in determining that the lawsuit was in fact a facial challenge of the ordinance itself. What mattered was the grounds for the lawsuit, all of which were based on the validity of the ordinance.

"It is the nature or gravamen of the cooperative's action that determines when the limitations period begins, not the label the cooperative affixes to its pleadings," Presiding Justice Barbara Jones wrote for the court.

The court ruled that the statute of limitations began to run upon the effective date of the ordinance in 2007 and that the lawsuit was barred.

The Case:

County of Sonoma v. Superior Court, No. A128734, 2010 DJDAR 18781. Filed December 15, 2010

The Lawyers:

For the county: Anne L. Keck, county counsel's office, (707) 565-2421

For Marvin's Gardens Cooperative, Matthew W. Kumin, Kumin Sommers, (415) 434-4500

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