HomeMy WebLinkAbout21CV-0734 - oc83847-ex partepdf1-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
John Armstrong
Armstrong Law Group
23232 Peralta Drive
Suite 102
Laguna Hills, CA 92653
Tel. 949-942-6069
Cell. 949-390-4307
Attorneys for Petitioner/Plaintiff
NHC SLO, LLC
john@armstronglawgroup.co
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN LUIS OBISPO
NHC SLO, LLC,
Petitioner and Plaintiff,
versus
CITY OF SAN LUIS OBISPO; CITY
COUNCIL OF AND FOR THE CITY
OF SAN LUIS OBISPO; AND DOES
1-10, INCLUSIVE,
Defendants and
Respondents.
Case No.: 21CV-0734
Assigned to: Judge Rita Federman
EX PARTE APPLICATION
FOR TEMPORARY
RESTRAINING ORDER AND
ORDER TO SHOW CAUSE
WHY A PRELIMINARY
INJUNCTION SHOULD NOT
ISSUE AGAINST THE CITY OF
SAN LUIS OBISPO;
MEMORANDUM;
SUPPORTING
DECLARATIONS OF
VALNETTE GARCIA and
JOHN ARMSTRONG
Dept.: 2
Time: 8:30a.m.
Date: 01-31-2022
PLAINTIFF’S EX PARTE APPLICATION
ELECTRONICALLY
FILED
1/27/2022 9:30 PM
2-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1. Petitioner and Plaintiff NHC SLO, LLC (“Petitioner” or “NHC”) seeks
relief against Respondent and Defendant, the City of San Luis Obispo
Respondent” or “the City”), arising from the City’s unilateral
termination of NHC’s retail Cannabis Operator Permit,1 which the City
terminated without a hearing in violation of the City’s own Ordinances,
and before NHC was open to the public for business. This has put NHC’s
State Cannabis License in jeopardy since a local license is required to
maintain the State license, and it will take 12-14 months to re-instate
NHC’s State license, at which time NHC will run out of funding and not
be able to open its cannabis dispensary for such unnecessary delay from
the City’s improper conduct.
2. Granting Ex Parte Relief will maintain the Status Quo Ante in that,
Ordering the City to reinstate NHC’s City Cannabis License will not by
itself allow NHC to operate, but will prevent irreparable harm to NHC, as
NHC needs additional City sign offs before it can open its doors to the
public even if its City Cannabis Permit is reinstated immediately.
3. Notice of this Ex Parte Application was originally by email and
telephonically on January 20, 2022, more than 24 hours before hearing
on this Ex Parte Application, Petitioner/Plaintiff’s Counsel of Record,
John Armstrong, by calling the City Attorney, J. Christine Dietrick, City
Attorney, at Phone: (805) 781-7140, and by emailing copies of
Summons, Verified Petition/Complaint, and this Ex Parte Application to
attorney@slocity.org, the Respondent/Defendant City Attorney’s public
1 To lawfully operate a cannabis business, the City of San Luis Obispo first requires a “Cannabis
Operation Permit” from the City. To legally operate thereafter, such Permit holder must acquire a
license from the State of California’s Department of Cannabis Control (formerly the Bureau of
Cannabis Control). Hence, when the word “permit” is used, reference is made to City’s Cannabis
Operator Permit, and “license” refers to the California State cannabis license. California case law
uses the words “permit” and “license” interchangeably as they both designate a governmental body’s
grant of permission to engage in a regulated form of business.
3-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
email address posted on the City of San Luis Obispo’s website (judicial
notice of such website hereby requested). (See attached Armstrong Decl.)
4. The City was later given notice that the date and time for this Ex Parte
had changed to this coming Monday, January 31, 2022 before 10:00 am
of January 28, 2022. (Armstrong Decl.)
5. The Verified Complaint on file with this Court contains most, if not all of
the administrative record, as the City failed and refused to hold or
conduct a hearing before unilaterally revoking NHC’s Cannabis Business
Permit in violation of the City’s own Ordinances regulating how the City
may revoke a Cannabis Business Permit once issued.
6. Respondent/Defendant is the City of San Luis Obispo, an incorporated
City, and respondent/defendant the City of Council of and for the City of
San Luis Obispo are the duly elected officials in charge of making
executive and legislative decisions for Respondent/Defendant City.
7. Respondent/Defendant City improperly revoked Petitioner/Plaintiff
NHC’s Cannabis Business Permit before it opened for business, which
revocation is has put NHC’s California State cannabis license at risk.
8. From the City’s improper revocation of the license, NHC is in immediate
threat of irreparable harm since NHC cannot open to the public to sell
cannabis without both the local City Permit and State Cannabis License
and without sign offs to all City approvals—the additional delays of
having to start the State Licensing process from scratch in addition to the
delays from the City’s refusal to allow NHC to move forward towards
opening to the public will put NHC out of business, since NHC
reasonably anticipated being able to complete the final sign off process
after having obtained both the local City Permit and State License.
9. The issuance of a temporary restraining order preserving the status quo
is warranted.
4-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10.This Application is made on the grounds that the Plaintiff is
entitled to the relief demanded, and on the further ground that great and
irreparable injury will result to Plaintiff and its business before the
matter can be heard on notice and it would be extremely difficult to
ascertain the amount of compensation which would afford adequate
relief.
11.This application is based on Plaintiffs’ Verified Petition and
Complaint fille in this action, including the attached Exhibits thereto, the
attached declarations supporting this ex parte application, and any other
testimony or evidence that is presented at the time of hearing.
Dated: January 27, 2022 ARMSTRONG LAW GROUP
John Armstrong, attorneys for
Plaintiff/Petitioner NHC SLO, LLC
5-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MEMORANDUM
1.Introduction
This Ex Parte Application seeks the immediate reinstatement of
Plaintiff/Petitioner NHC SLO, LLC’s (“NHC”) Cannabis Business Permit,
which the City of San Luis Obispo unilaterally revoked without a hearing and in
violation of the City’s own City Ordinance regarding how the City may revoke
such cannabis business permits.
This Ex Parte Application seeks to maintain the Status Quo Ante in that
immediate reinstatement of NHC’s cannabis business permit does not by itself
allow NHC to open to the public, but does allow NHC to continue with the
process of completing the remaining the City sign offs needed to open, and
prevents the immediate and irreparable loss of the NHC’s California State
Cannabis Dispensary License, which is in immediate danger of being revoked
by the State at any time because of the City wrongfully and improperly revoked
NHC’s permit, which revocation results in the State’s revocation of the license
it granted to NHC to operate, since local authorization is a requirement to get
and maintain a State cannabis license. Thus, the Status Quo Ante must be
maintained until this Court can decide this dispute on the merits.
As set out in Ms. Garcia’s supporting declaration, NHC will run out of
funding before it could get such State license reinstated by the time this
litigation is concluded.
Accordingly, before NHC sustains irreparable harm for something that will
cause no harm to the City, NHC seeks immediate judicial relief by this
Emergency Ex Parte Application.
2.Statement of Facts from Verified Petition and Complaint
The City of San Luis Obispo (the “City”) issued a retail Cannabis Operator
Permit to NHC (the “Permit”) , as was confirmed in letters from the City, true
and correct copies of which are attached as Exhibits A and B to the Verified
6-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Petition/Complaint. (All references to Exhibits are the Exhibits attached to and
incorporated to the Verified Petition/Complaint, so that there are not
duplicated here, and so reference to the Original, Verified Petition and
Complaint should be had in regarding this Ex Parte Application.)
The State of California’s Bureau of Cannabis Control (now Department of
Cannabis Control) also conformed Respondent City’s issuance of the Cannabis
Operator Permit to Petitioner, in that under the California State Cannabis
Regulations, the State must confirm with the local jurisdiction that a valid local
cannabis permit/license exists before issuance of the State Cannabis license,
which State license Petitioner obtained on or about June 25, 2021.
A true and correct copy of the California Department of Cannabis Control’s
request to the City to confirm Petitioner’s local cannabis permit is attached as
Exhibit C to the Verified Petition.
A true and correct copy of Petitioner’s State Cannabis License is attached as
Exhibit D attached to the Verified Petition.
A condition precedent of Petitioner’s obtaining its California state cannabis
license was the State’s confirmation from the City of San Luis Obispo that
Petitioner had a valid, local, retail cannabis permit, and that such permit was
in good standing with the City. (See 16 Cal. Code Regs., § 5002(c)(28)[State
must confirm with local jurisdiction validity of local cannabis authorization
before issuing State cannabis license].)
That the State of California issued Petitioner a State Cannabis License is by
itself presumptive evidence that the City granted Petitioner a Cannabis Permit.
The issuance of an actual Permit is more than a tentative approval of a
cannabis application,” which is what the City has argued to justify its failure to
comply with its own City Ordinance regulating the revocation of issued
Cannabis Permits, by using its Ordinance that regulates, by its clear and
7-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
express terms, only Cannabis Permit “Applications,” but which does not
expressly apply to issued cannabis permits.
In sum, the City cites and relies on the Ordinance applicable only to
Applications, where the City has admittedly much broader powers and
discretion to terminate applications, as opposed to its Ordinances regulating
issued cannabis permits, which clearly and expressly restrict the City’s powers
to terminate issued permits.
At all times relevant before the existing dispute, City officials represented
that had acquired a valid cannabis retail permit from the City to both the State
of California and to Petitioner.
Petitioner is informed and believes that plaintiff/petitioner NHC’s landlord
has spent approximately $4.1 million dollars building out the retail cannabis
facility at 2640 Broad Street, San Luis Obispo, California (the “Premises”), and
the building owner made significant improvements to the property to meet the
City’s required specifications for its tenant, Petitioner, which construction was
an express obligation of the Landlord under the terms of Petitioner’s lease.
On October 6, 2021, shortly before the final construction “punch list” items
were completed at the Premises, the City informed NHC that its retail cannabis
permit was being terminated immediately and without a hearing, due to
alleged "fraud in the application process," despite no City Ordinance allowing
for such termination of an issued cannabis permit.
This “termination letter” expressly acknowledges that the City issued
Petitioner a “Cannabis Operator Permit,” in that is begins by informing
Petitioner that its City Cannabis Operator Permit is “terminated.”
A true and correct copy of this letter is attached as Exhibit E (the
Termination Letter”) to the Verified Petition.
8-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Termination Letter’s stated grounds for terminating the Permit were
that Helios Dayspring, a former member of NHC 2[] had settled various
criminal charges that had recently been brought against him, whereby his plea
bargaining admitted to certain criminal conduct that was not disclosed during
NHC’s Cannabis Permit Application to the City of San Luis Obispo.
Specifically, the City wrote:
Subject: Notice of Automatic Disqualification and
Termination of Permit: CANN-0070-2019
2640 Broad St., 93401): NHC SLO, LLC
Dear Ms. Garcia,
This letter is to inform you that NHC SLO, LLC (NHC) is
automatically disqualified from activating, obtaining or
holding a Commercial Cannabis Operator Permit (Operator
Permit) to conduct commercial cannabis activity located at
2640 Broad St. and the Operator Permit issued to NHC is
hereby immediately terminated, and/or shall not be
permitted to be activated, pursuant to San Luis Obispo
Municipal Code (SLOMC) Sections 9.10.070, Subsections C.4
and D, as well as the express terms of the Operator Permit
application submitted by NHC.
Please be advised that the business is not permitted
to operate in any form from the date of this notice.
This action is the result of NHC's submission of false or
misleading information in obtaining and maintaining the
Operator Permit, as set forth below, which results in
automatic disqualification from the City's permitting process
and precludes NHC from obtaining or maintaining an
Operator Permit to operate a cannabis business in the City.”
2 Mr. Daysping had transferred his interest Valnette Garcia with the City’s written approval one-year
earlier, and so presently has no interest in the cannabis business or permit, other than as the
landlord/property owner, and neither the California State Cannabis Laws or Regulations nor the
City’s Ordinances have a requirement that that property owners cannot have a criminal record or
must do anything other than confirm their consent to allowing a cannabis business to operate on their
property.
9-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In response to this notice of termination, NHC provided information to the
City that its concerns regarding Mr. Dayspring were irrelevant, reminding the
City that Mr. Dayspring was no longer a member of NHC, and, because
the City had already issued NHC the Permit (meaning that NHC’s cannabis
permit application had already ripened into a Permit), the City’s permit
revocation procedures under the applicable municipal code were required to
be followed, as opposed to the Municipal Code sections regulating cannabis
applications, which applications do not trigger vested rights.
NHC’s correspondence further pointed out to the City that the
misrepresentations cited in the Termination Notice were inaccurate, as stated
by the City. A true and correct copy of NHC’s response is attached as Exhibit
F to the Verified Petition.
At the time of the issuance of the Permit Mr. Dayspring was not a member
or owner of NHC , as his interests had previously been transferred to Ms.
Valnette Garcia, with the City’s written consent. Ms. Garcia had no criminal
past—nor were there any other circumstances that would disqualify her or
Petitioner NHC from operating a retail operation under the Permit.
Since the issuance of the Permit NHC has spent $520,982 in preparing to
open the retail cannabis business.
Additionally, without the ability to open for business with the Permit, NHC
anticipates that it will remain liable under its current lease with the landlord,
which as a term of 5 years at an initial monthly rental of $55,000 per month.
3. NHC has no available means of meeting this lease obligation
withoutbeing able to operate with the Permit and should NHC default
on that obligation NHC anticipates that it will be liable for the
Landlord’s cost and expense of improving the Premises, over
of $4,000,000.00 which will result in the financial destruction
of NHC.
10-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A true and correct copy of the Petitioner’s Lease is attached as Exhibit G to
the Verified Petition.
In response to Petitioner’s Response to the City’s Termination Letter of
October 6, 2021, the City Manager sent Petitioner a “Memorandum of
Decision” on October 19, 2021, “re-affirming” the City’s Termination of
Petitioner’s City Cannabis Permit.
A true and correct copy of the City’s Memorandum of Decision is attached as
Exhibit H to the Verified Petition.
In the City’s Memorandum, it cited San Luis Obispo City Ordinance §
9.10.070.C.4 as the grounds upon which the City was terminating Petitioner’s
Cannabis Permit.
This Ordinance, however, merely grants the City to disqualify a person’s
cannabis application: It does not apply to issued and cannabis permits, which
are expressly governed by a different City Ordinance.
Nonetheless, the City’s Memorandum of Decision, while expressly
recognizing that the City issued Petitioner Cannabis Permit [“On October 6,
2021, NHC was served with notice that actions of NHC SLO LLC resulted in
the automatic nullification of your Commercial Cannabis Operator Permit
Operator Permit)”], cited San Luis Obispo Ordinance, § 9.10.070.C.4 as the
legal basis for the “automatic” “termination” of Petitioner’s Cannabis Permit
stating that “…pursuant to Section 9.10.070.C.4 of the Municipal Code, NHC’s
permit remains automatically disqualified and terminated”. (See attached
Exhibit H to the Verified Petition)
San Luis Obispo Ordinance § 9.10.070, subpart C provides in pertinent part
as follows:
C. Grounds for Automatic Disqualification. In addition to any
other reason that may be established by the city council as a basis for
11-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
disqualification, an applicant shall be disqualified from applying for,
or obtaining, a commercial cannabis operator permit…..”
The above provision does not allow for termination of an issued Cannabis
Permit in the City’s sole discretion. Under the above referenced City
Ordinance, the City only has discretion to deny a cannabis
permit applicant from applying or obtaining a permit. Once a cannabis
application has ripened into a cannabis permit, the Ordinance governing
cannabis applications no longer applies to permit holders by its express terms.
This result is further compelled in that the City has a different and separate
Ordinance regulating when and how a cannabis permit holder may have its
cannabis permit “revoked.”
It is not identical to the Ordinance given the City admittedly broader
discretion to disqualify cannabis permit applicants’ applications: As set out
below, the Ordinance governing Cannabis Permit holders restricts the City’s
discretion to Terminate Cannabis Permits by requiring a Permit holder to
operate unlawfully.
Since Petitioner was never given the chance to operate, it cannot have its
Permit “terminated” or “revoked” under the City’s own Ordinance.
San Luis Obispo Ordinance, § 9.10.090 governs “Suspension or Revocation”
of City Cannabis Permits.
Section 9.10.090 of the San Luis Obispo Code provides as follows:
9.10.090 Suspension or revocation of permit.
In addition to any other penalty authorized by law, a
commercial cannabis operator permit may be suspended or
revoked if the city finds, after notice to the permittee and
opportunity to be heard, that the permittee or his or her
agents or employees have violated any condition of the
permit imposed pursuant to, or any provision of, this chapter.
12-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A.Upon a finding by the city of a first permit violation within
any five-year period, the permit shall be suspended for thirty
days.
B.Upon a finding by the city of a second permit violation
within any five-year period, the permit shall be suspended for
ninety days.
C.Upon a finding by the city of a third permit violation
within any five-year period, the permit shall be
revoked. (Ord. 1647 § 4 (Exh. A (part)), 2018)”
The City Ordinance governing the revocation of a cannabis operator
permit does not allow the City to terminate an issued Permit for misstatements
or misinformation in the cannabis license application process.
Nor does the City Ordinance governing the suspension of revocation of
City Cannabis Permits allow “termination” of an issued Cannabis Permit
without fair notice and a fair hearing.
Rather, by its express terms, revocation of a Permit is limited to active
misconduct by the licensee in the operation of the permit. (See S.L.O. City
Ordinance 9.10.090, "Suspension of revocation of permit.")
Because the City is not following its own set of rules that it created is the
reason why Petitioner/Plaintiff NHC now seeks relief here.
4.The Court Should Grant A Temporary Restraining Order to
Preserve the Status Quo
a.The Court May Grant A Temporary Restraining Order Ex
Parte
A temporary restraining order may be obtained on an ex parte basis where
i]t appears from facts shown by affidavit or by the verified complaint that
great or irreparable injury will result to the applicant before the matter can be
heard on notice.” (Code Civ. Proc., § 527(c)(1).)
In determining whether to issue a temporary restraining order, the trial
court considers two related factors:
13-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1)the likelihood that the moving party will prevail on the merits of its case
at trial, and
2)the interim harm that the moving party is likely to sustain if the
restraining order is denied as compared to the harm that the non-moving
party is likely to suffer if the court grants a preliminary injunction.
Church of Christ in Hollywood v. Superior Ct. (2002) 99 Cal.App.4th 1244,
1251; Cal. Code Civ. Proc., §§ 526, 527.)
The latter factor involves consideration of such things as the inadequacy of
other remedies, the degree of irreparable harm, and the necessity of preserving
the status quo.’ [Citation.]” (14859 Moorpark Homeowner’s Assn. v. VRT
Corp. (1998) 63 Cal.App.4th 1396, 1402, quoting Abrams v. St. John’s
Hospital & Health Center (1994) 25 Cal.App.4th 628, 636.)
The general purpose of a temporary restraining order and preliminary
injunction is to preserve the status quo. (Harbor Chevrolet Corp. v.
Machinist’s Local Union 1484 (1959) 173 Cal.App.2d 380, 384; Grothe v.
Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316.)
The “status quo ante” for purposes of a temporary restraining order or
preliminary injunction means the “last actual peaceable, uncontested status
which preceded the pending controversy.” (United Railroads of San Francisco
v. Super. Ct. (1916) 172 Cal. 80, 87 (emphasis added); Voorhies v. Greene
1983) 139 Cal.App.3d 989, 995.)
The phrase “irreparable harm” is “used in expressing the rule that an
injunction may issue to prevent wrongs of a repeated and continuing character,
or which occasion damages estimable only by conjecture and not by any
accurate standard.” (People ex rel. Gow. V. Mitchell Brothers’ Santa Ana
Theater (1981) 118 Cal.App.3d 863, 871.) The more likely it is that the party
seeking a preliminary injunction will ultimately prevail, the less severe must be
14-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the harm that they allege will occur if the injunction does not issue. (Integrated
Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 211 Cal.Rptr.3d 873.)
Petitioner/Plaintiff will suffer irreparable injury if a temporary restraining
order is not granted.
The City’s wrongful revocation of Petitioner’s Cannabis Permit is a violation
of a public duty that simply cannot be monetarily compensated and is the very
definition of irreparable harm. (See Jauregui v. City of Palmdale (2014) 226
Cal.App.4th 781, 809 [“It has been said that an unconstitutional statute or a
statute valid upon its face but unconstitutionally applied may be enjoined.”]
conc. opn. by Mosk, J.]; citing Financial Indem. Co. v. Superior Court (1955)
45 Cal.2d 395, 402; Downing v. Cal. State Board of Pharmacy (1948) 85
Cal.App.2d 30, 36.; see also Cal. Admin. Mandamus (CEB 2021) §§ 1.18-1.19
at pp. 1-17 to 1-18 [injunction and declaratory relief, and similar equitable
remedies available in a mandamus action to preserve the status quo, and
prevent harm pending final judgment].)
Only a temporary restraining order will halt this ongoing and continuing
intrusion into Petitioner’s vested right to sell licensed cannabis to the public.
b. An Injunction Is Permitted Where A Valid Statute Is
Unconstitutionally Applied
If a statute is both valid and the challenged action is authorized by such
statute, then an injunction is not proper. However, as is here, when a valid
statute is unconstitutionally applied, an injunction is proper despite Civil Code,
section 3423(d) and Code of Civil Procedure, section 526(b)(4). (Robbins v.
Superior Court (1985) 38 Cal.3d 199, 212, 213.)
An injunction is proper here as the City’s revocation “Order” has exceeded
the City’s s powers under its own Municipal Code to revoke Petitioner’s
Cannabis Permit.
15-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5. An Order to Show Cause Re Preliminary Injunction Should Also
Issue
Importantly, the Temporary Restraining Order requested is for a temporary
period only until such time as a hearing on a preliminary injunction can occur.
A party requesting a preliminary injunction may give notice of the request to
the opposing or responding parry either by serving a noticed motion under
Code of Civil Procedure section 1005 or by obtaining and serving an order to
show cause (“OSC”). An OSC must be used when a temporary restraining order
TRO”) is sought. (Calif. Rules of Court, rule 3.1150.)
Petitioner/Plaintiff NHC further requests a full hearing on a Preliminary
Injunction for the same reasons and under the same authorities as set forth
herein, and requests that an Order to Show Cause be issued along with the
TRO to afford Defendant the opportunity to show why they should not be
restrained and enjoined in the same manner for the remainder of this
litigation.
6. Conclusion
The City’s revocation Order is improper and has caused NHC an immediate
threat of irreparable harm. NHC seeks maintain the status quo ante by this
Application. Granting the requested relief will cause no harm to the City’s
interest in preventing NHC from opening to the public until the legal issues
raised in the Verified Complaint/Petition are resolved based on the Order
submitted herewith.
ARMSTRONG LAW GROUP
Dated: January 27, 2022 ________________________
John Armstrong, attorneys for
Plaintiff/Petitioner NHC SLO, LLC
16-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DECLARATION VALNETTE GARCIA
1.I, Valnette Garcia, declare as follows.
2.I am the managing member and owner of Petitioner/Plaintiff NHC SLO,
LLC in this action, and am authorized to make this verification on its
behalf.
3.I verified NHC SLO, LLC’s Verified Petition and Complaint for Writ of
Mandate, Prohibition, Or Both, And For Declaratory Relief with its
attached Exhibits, and know its contents, and say the that the facts stated
therein are true, and each and every exhibit is a true and correct copy of
what each attached Exhibit purports to be, and that I have personal
knowledge of same. This Verified Pleading with its Exhibits supports this
Ex Parte Application and should be read with it.
4.Additionally, I have read the NHC SLO, LLC’s instant Ex Parte
Application and know its contents, and have personal knowledge of the
facts stated therein and say they are true.
5.I have been involved in other local cannabis licenses and California State
business licenses, and from experience, if a local license is lost, this
results in the State revoking its State license, and if the State license is
not promptly reinstated, then the application process with the State
starts all over again, and presently it is taking 12-14 months for the State
to approve new cannabis business licenses from submission, which is
significant because you cannot lawfully open a cannabis business without
both local and State authorization.
6.If NHC SLO, LLC does not have its local cannabis permit reinstated to
prevent the loss of its existing issued State cannabis, NHC SLO, LLC
presently faces the immediate threat of irreparable harm because its
cannot wait for 12-14 months to get its State license reinstated after
10
11
12
l3
l4
15
l6
l7
18
l9
20
21
22
23
24
25
26
27
28
resolving this litigation with the City,as the company will run out of
money by then and forced to close.
Moreover,it is likely that NHC,SLO will prevail because the City failed to
follow its own Ordinances and Laws regarding when and how an issued
cannabis business permit may be revoked in revoking NHC SLO,LLC’s
license.
And,the City will not suffer harm even if the Court orders the immediate
reinstatement of the Cannabis Business Permit,since,before NHC SLO,
LLC can open its doors to the public,it must still get City sign offs from
the City Police,City Fire Department,City Planning,etc.,before opening
its doors to the general cannabis consuming public.That is,
reinstatement of the City’s Cannabis Business Permit will simply allow
the local authorization process to continue,and NHC SLO,LLC will agree
that even if all sign offs are granted,that it will not open its doors to the
public without court approval or without the City’s stipulation that it may
do so.
Granting Ex Parte Relief,including,without limitation,setting an Order
to Show Cause Hearing why a Preliminary Injunction Should Not Issue is
also in the public interest,in that the State of California has deemed
cannabis business “essential services”to be open to the public during this
pandemic as cancer patients,and other persons have recognized medical
needs for cannabis.
I declare that the foregoing declaration is true under penalty of
perjury under the laws of California,except to matters of opinion,which I
WWW
Valnettefiarcia
believe to be true.
Dated:January 20,2022
17-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
10
18-
VERIFIED PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR
INJUNCTIVE AND DELCARATORY RELIEF
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DECLARATION OF JOHN ARMSTRONG
1. I, John Armstrong, declare as follows in support of NHC SLO, LLC’s
instant Ex Parte Application.
2. I called the City’s Attorney’s Office about the date, time, location, and
substance of this Ex Parte Application, before 10:00am the business day
before the hearing on this Ex Parte Application.
3. I also emailed the instant Ex Parte Application and supporting papers,
including a copy of the Verified Complaint/Petition with the supporting
Exhibits cited in this Ex Parte Application on January 20, 2022, as well
as a copy of this Court’s Zoom instructions for hearings for the Ex Parte,
and a copy of the Proposed Order on the Ex Parte Application, and re-
sent the updated papers with new hearing date of January 31, 2022.
4. I declare under penalty of perjury under the laws of California that the
foregoing is true and correct and that I signed this declaration at my
office in Orange County, California on January 27, 2022.
John R. Armstrong, declarant