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SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO CENTRAL DIVISION UNLIMITED CIVIL CASE

MICHAEL S. GREEN, an individual, and DOES 1 through 20, inclusive, Plaintiffs, v. CITY OF FRESNO, a political subdivision of the State of California; JERRY P. DYER, in his official capacity as Chief of Police for the City of Fresno; MARK SCOTT, in his official capacity as Director of Development and Resource Management for the City of Fresno; and DOES 1 through 20, inclusive, Defendants

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Case No.: 12CECG01334 MWS VERIFIED COMPLAINT FOR DECLARATORY RELIEF, TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION [C.C.P. Secs. 526, 527, 1060, 1084, 1085(a), 1086, 1103(a)]

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Plaintiff Michael S. Green (hereinafter referred to as Plaintiff) alleges as follows: I. PARTIES 1. 2. Plaintiff is, and at all times herein mentioned was, a resident of the City of Fresno. Plaintiff is ignorant of the true names and capacities of Plaintiffs named herein as Does 1

through 20, inclusive, and therefore brings action with by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained. 3. 4. Defendant City of Fresno is a political subdivision of the State of California and is sued as a Defendant Jerry P. Dyer is sued in his official capacity as the Chief of Police of the City of municipal corporation organized and existing under a municipal charter. Fresno. Plaintiff is informed and believes Defendant Dyer has authority over the enforcement of all state laws within the City at all times mentioned herein. 5. Defendant Mark Scott is sued in his official capacity as interim Director of Development and Resource Management for Defendant City of Fresno. Plaintiff is informed and believes Defendant Scott has authority over the development and enforcement of land-use and zoning regulations within the City at all times mentioned herein. 6. Does 1 through 20, inclusive, are sued herein under fictitious names. Their true names and capacities are unknown to Plaintiff at this time. When their true names and capacities are ascertained, Plaintiff will amend this complaint by inserting their true names and capacities herein. Plaintiff is informed and believes and thereon alleges that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged, and that Plaintiffs damages as alleged herein were proximately caused by such Defendants. 7. At all times herein mentioned, Defendants, including Doe Defendants, and each of them, were the agents, servants, and employees of each of the other Defendants and in doing the things alleged herein, were acting within the course and scope of said agency, servitude or employment, and with the permission and consent of each of the other Defendants. II. INTRODUCTION 8. In 1996, California voters passed the Compassionate Use Act (referred to hereinafter as CUA), which decriminalized the cultivation and use of marijuana by seriously ill individuals
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with a doctors recommendation. The Act's stated purpose was to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes and to ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. (Health and Safety Code Secs. 11362.5(b)(1)(A)-(B).) 9. In 2003, the California Legislature enacted the Medical Marijuana Program Act (referred to hereinafter as MMPA). The express intent was to (1) Clarify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. (2) Promote uniform and consistent application of the act among the counties within the state. (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects. (Stats. 2003, ch. 875, section 1, subd. (b)(1)-(3).) 10. Interim urgency Ordinance 2011-41, which placed an immediate ban on the outdoor cultivation of medical cannabis in the City, was heard and duly enacted by the Fresno City Council on or about December 15, 2011. (A true and correct copy of the text of Ordinance 2011-41 and City staff report is attached hereto as Exhibit A.) 11. The ban was extended for 10 months, 15 days, through Ordinance 2012-3, which was duly enacted by the Council on or about January 26, 2012. (A true and correct copy of the Fresno City Council minutes of December 15, 2011, and January 26, 2012, is attached hereto as Exhibit B.) 12. 13. Pursuant to Health and Safety Code Secs. 11362.5(d) and 11362.7(f), Plaintiff holds a Plaintiff currently resides in the City and is currently growing and cultivating outdoors at statutory right to possess, use and cultivate medical cannabis in the matters set forth herein. least one marijuana plant for his personal and recommended medical needs. If this ordinance is enforced, Plaintiff will lose money invested in the planting and cultivation process, as well as any and all medicine which may have been harvested from the plants if grown to maturity outdoors. 14. Pursuant to Ordinance 2012-3, Plaintiff is subject to nuisance abatement, fine and/or prosecution of a misdemeanor by Defendants for outdoor cultivation of medical cannabis. Implementation of this ordinance has had, and will continue to have, a severe impact on Plaintiff's statutory rights and vested property rights, which causes Plaintiff immediate and irreparable harm. //
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III. JURISDICTION AND VENUE 15. 16. This court has jurisdiction over this action pursuant to the California Constitution, Article VI, Venue is proper in this court because Defendants reside in or are situated in Fresno County. IV. FACTS APPLICABLE TO ALL CAUSES OF ACTION 17. 18. Plaintiff is a qualified patient as defined in Health and Safety Code Sec. 11362.7(f) and Plaintiff's mother is a primary caregiver as defined in Health and Safety Code Sec. 11362.5(d). 11362.7(d) and has permitted the outdoor cultivation of medical cannabis by Plaintiff at her home in a City residential zoning district at all times mentioned herein. 19. Plaintiff holds a personal property right in the matters set forth herein in that all times herein he possessed at least one medical cannabis plant growing outdoors in the City and has expended substantial time and money obtaining equipment and supplies for outdoor cultivation. 20. 21. At all times mentioned herein, Plaintiff did not possess nor cultivate medical cannabis in an Plaintiff lacks suitable building space, high-intensity lighting equipment, knowledge and amount greater than was reasonably related to his medical needs. financial resources required to install and operate an indoor growing system safely and affordably. Plaintiff further lacks access to state-authorized medical cannabis collective cultivation sites, with dispensaries and cooperatives prohibited in the City pursuant to Ordinance 2007-42. 22. Fresno Municipal Code Sec. 12-317-C-1 authorizes the continuation of non-conforming land uses for five years after passage of a zoning ordinance restricting such uses, where such use is maintained in connection with a conforming building. 23. 24. No administrative procedures are allowed in Ordinance No. 2012-3. Government Code Sec. 65009, subdivision (c)(1)(B), requires Plaintiff to commence an Section 10, because this case is a cause not given by statute to other trial courts.

action to review, set aside and void a decision to adopt or amend a zoning ordinance within 90 days after the legislative body's decision. This action is timely filed. // //
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FIRST CAUSE OF ACTION For Declaratory Relief; Ord. No. 2012-3 deprives Plaintiff of statutory and vested property rights 25. 26. Plaintiff incorporates by reference the allegations set forth in the previous paragraphs. Article 1, Section 7 of the California Constitution and Civil Code Sec. 52.1 prohibit the

enactment and enforcement of municipal laws that deprive an individual of their vested property rights and rights afforded under state statutes. 27. Ordinance 2012-3 violates due process by effectively divesting Plaintiff and others similarly situated of their rights under the CUA and the MMPA, namely, their rights as qualified patients under existing state statutes to a safe and affordable method by which they can cultivate, possess and use medical marijuana for their doctor-recommended medical needs. 28. An actual controversy has arisen and now exists between Plaintiff and Defendants concerning their respective rights and duties in that Plaintiff contends he is authorized by the Compassionate Use Act and the Medical Marijuana Program Act to possess and grow medical cannabis; and that the City may not interfere nor attempt to interfere by threats, intimidation, or coercion with the exercise and enjoyment of Plaintiff's rights, and that Plaintiff is authorized to seek injunctive relief pursuant to Civil Code Sec. 52.1 to protect the peaceable exercise of his rights under California law and the state Constitution; whereas Defendants dispute these contentions and contend that Ordinance 2012-3 is consistent with all state laws and does not interfere with the exercise of Plaintiff's statutory and vested property rights. 29. Plaintiff desires a judicial determination of his rights and duties, and a declaration as to whether Ordinance 2012-3 is consistent with the CUA/MMPA and all applicable state laws, and, if so, the enforcement methods that City shall use to effect compliance with the ordinance. 30. A judicial declaration is necessary and appropriate at this time under the circumstances so that Plaintiff may ascertain his rights and duties under Ordinance 2012-3, rather than expose himself to possible criminal and/or civil sanctions, including property seizure, for non-compliance. SECOND CAUSE OF ACTION For Declaratory Relief; Ord. No. 2012-3 is pre-empted by state law and therefore void 31. 32. Plaintiff incorporates by reference the allegations set forth in the previous paragraphs. On or about December 15, 2011, interim urgency Ordinance 2011-41 was enacted by the

Fresno City Council. The ordinance declared the outdoor cultivation of medical marijuana to be a
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nuisance per se, pursuant to Fresno Municipal Code Sec. 10-605(l), and each violation also shall be deemed a misdemeanor. On or about January 26, 2012, Ordinance 2012-3 was enacted, extending the City's outdoor cultivation ban for 10 months, 15 days. 33. The MMPA added Health and Safety Code Sec. 11362.775, which provides that qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients, who associate within the State of California in order to collectively or cooperatively cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to criminal sanctions for the possession of marijuana [11357], cultivation of marijuana [11358], possession for sale [11360], transportation [11360], maintaining a place for sale, giving away or use of marijuana [11366], making premises available for the manufacture, storage or distribution of controlled substances [11366.5], or the abatement of a nuisance created by premises used for manufacture, storage or distribution of controlled substance [11570]. 34. Health and Safety Code Sec. 11362.775 exempts qualified patients and their primary caregivers not only from criminal prosecution for authorized collective or cooperative activities, but also from nuisance abatement proceedings. Thus, the Legislature has determined the activities it authorized at collective or cooperative cultivation sites do not constitute a nuisance. 35. In equal manner, Health and Safety Code Sec. 11362.765 exempts individual qualified patients and their primary caregivers not only from criminal prosecution for authorized possession and cultivation of medical cannabis, but also from nuisance abatement proceedings. Thus, the Legislature has determined the activities it authorized for qualified patients and their primary caregivers, including the cultivation of medical cannabis, do not constitute a nuisance. 36. Under Ordinance 2012-3, the outdoor cultivation of medical cannabis always constitutes a nuisance, even though the Legislature has concluded otherwise in the MMPA. Because the City's ban directly contradicts state law, it is pre-empted. Article 11, Section 7 of the California Constitution and Government Code Sec. 37100 prohibit the enactment and enforcement of municipal laws that conflict with the general laws of the State. 37. An actual controversy has arisen and now exists between Plaintiff and Defendants concerning their respective rights and duties in that Plaintiff contends he is authorized by the Compassionate Use Act and the Medical Marijuana Program Act to possess and grow medical cannabis without being subject to criminal or civil sanctions pursuant to Ordinance 2012-3; whereas Defendants dispute these contentions and contend that Ordinance 2012-3 is consistent
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with all state laws and imposes sanctions for outdoor cultivation of medical cannabis by Plaintiff and others similarly situated in a manner that is not prohibited by the CUA and/or MMPA. 38. Plaintiff desires a judicial determination of his rights and duties, and a declaration as to whether Ordinance 2012-3 is consistent with the CUA/MMPA and all applicable state laws, and, if so, the enforcement methods that City shall use to effect compliance. 39. A judicial declaration is necessary and appropriate at this time under the circumstances in order that Plaintiff may ascertain his rights and duties under Ordinance 2012-3, rather than expose himself to possible criminal and/or civil sanctions for non-compliance. THIRD CAUSE OF ACTION For Declaratory Relief; Ord. 2012-3 is void because it was enacted contrary to state law 40. 41. Plaintiff incorporates by reference the allegations set forth in the previous paragraphs. On or about December 15, 2011, Ordinance 2011-41 was enacted by the Fresno City

Council purportedly pursuant to Government Code Sec. 65858 (hereinafter referred to as section 65858). 42. 43. The ordinance was extended for 10 months, 15 days, through the Council's passage of By invoking section 65858, the Fresno City Council bypassed the hearing and notice Ordinance 2012-3 on or about January 26, 2012, also purportedly pursuant to section 65858. requirements of Government Code Secs. 65090 and 65091, and first hearing before the Fresno Planning Commission, as would otherwise be required for a text amendment to City zoning laws. 44. The general purpose of section 65858 is to allow a local legislative body to adopt interim urgency zoning ordinances prohibiting land uses that may conflict with a contemplated general plan amendment or another land use measure proposal which the legislative body is studying or intends to study within a reasonable period of time. 45. Section 65858 expressly provides that a city shall not adopt an interim ordinance unless it makes a finding that the approval of additional subdivisions, building permits or entitlements would result in a current and immediate threat to the public safety, health, or welfare. 46. Pursuant to Ordinance 2007-42, at all times mentioned herein, the City has not authorized the processing or approval of business licenses, building permits, zoning variances or use permits for cultivation sites or other facilities operated by medical cannabis dispensaries or cooperatives. //
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47. 48.

At all times mentioned herein, Plaintiff did not request from the City nor apply for a use In enacting Ordinances 2011-41 and 2012-3, the Fresno City Council failed to make findings

permit, variance, license or building permit for the cultivation of medical cannabis. that the City's approval of building permits or other entitlements pertaining to the outdoor cultivation of medical cannabis by Plaintiff and other qualified patients and primary caregivers similarly situated would result in a current and immediate threat to the public safety, health, or welfare, such findings being expressly required by section 65858. 49. An actual controversy has arisen and now exists between Plaintiff and Defendants concerning their respective rights and duties in that Plaintiff contends the Fresno City Council made purported findings in Ordinances 2011-41 and 2012-3 that do not meet the statutory requirements for enacting an interim urgency zoning ordinance pursuant to section 65858; whereas Defendants dispute these contentions and contend that the interim urgency zoning ordinances were enacted in a manner consistent with section 65858 and with correct City Council findings. 50. Plaintiff desires a judicial determination of his rights and duties, and a declaration as to whether Ordinances 2011-41 and 2012-3 were enacted consistent with section 65858 and all applicable state laws, and, if so, the enforcement methods that City shall use to effect compliance. 51. A judicial declaration is necessary and appropriate at this time under the circumstances in order that Plaintiff may ascertain his rights and duties under Ordinance 2012-3, rather than expose himself to possible criminal and/or civil sanctions for non-compliance. RELIEF REQUESTED 52. 53. 54. Wherefore, Plaintiff, on behalf of himself and others similarly situated, prays judgment as For a declaration that Ordinance 2012-3 is unlawful, void and of no force and effect; and In the alternative, for a declaration that Ordinance 2012-3 shall not be enforced by the follows:

Fresno Police Department, but by the Director of Development and Resource Management pursuant to Article 6 of Chapter 10 of the Fresno Municipal Code; and 55. For issuance of a temporary restraining order, preliminary injunction, and permanent injunction restraining and enjoining Defendants from enforcing, or threatening to enforce, Ordinance 2012-3 by any means, whether criminal, civil or administrative; and //
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56.

In the alternative, for issuance of a temporary restraining order, preliminary injunction, and

permanent injunction restraining and enjoining Defendants from enforcing, or threatening to enforce, any provision of Ordinance 2012-3 with agents or officers of the Fresno Police Department; and 57. 58. For costs of suit and attorney fees herein incurred; and For such other and further relief as the court may deem proper. MICHAEL S. GREEN IN PRO PER By: _________________________________ Michael S. Green, In Pro Per

Dated:

VERIFICATION I, Michael Steven Green, am an individual plaintiff in the above-entitled action. I have read the foregoing complaint and know the contents thereof. The same is true of my own knowledge, except as to those matters that are therein alleged on information and belief, and as to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in Fresno County, California, on this date. ____________________ [date] ________________________________ [signature]

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