### FILED NOVEMBER 1, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE CITY OF CLARKSTON, a Washington municipal corporation, Respondent,


### v. VALLE DEL RIO, LLC, A Washington LimitedLiability Corporation, d/b/a Greenfield Company; MA TT PLEMMONS, individually and as a member ofValle Del Rio, LLC; and Aaron Tatum, individually and as a member ofValle DelRio, LLC, Petitioners. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 33682-4-111

UNPUBLISHED OPINION

FEARING, C.J.

- The City ofClarkston suedValle Del Rio, LLC, to enforce Ordinance 1532 thatprohibits recreational marijuanaproduction, processing, orplace of retail sale within Clarkston. The superior court granted Clarkston a preliminary injunction enforcingthe ordinance andbarringValle Del Rio from operating a recreational marijuana retail outletuntil resolution ofthe suit. AfterValle Del Rio appealedthe injunction, Clarkstonrepealed Ordinance 1532 and now allows the operation ofmarijuana retail stores within city limits. Despite the mootness ofthisNo. 33682-4-111 Clarkston v. Valle DelRio appeal, the parties request that we address the merits oftheir dispute. Because the parties ask us to review an order granting a preliminary injunction and the trial court never fully addressed the merits ofthe dispute after a factual hearing, we decline to address the merits ofthe appeal and follow the prevailing rule ofdismissing moot appeals. FACTS OnNovember 6, 2012, Washington voters approved Initiative 502, which legalized the licensed production and sale ofmarijuana. OnNovember 24, 2014, the City ofClarkston adopted Ordinance 1532 that declares: "norecreational marijuana production, processing or place ofretail sale shall be permitted within this City limits in any zone, and no entity orperson shall be issued a business license for any recreational marijuana business." Clerk's Papers (CP) at 9. On April 2, 2015, Matt Plemmons signed a lease for retail space in Clarkston and spent $20,000 on improvements in orderto meet state licensure requirements for a marijuana retail store. On April 29, 2015, Plemmons and Aaron Tatum, owners ofValle Del Rio, LLC, applied for a business license with Clarkston for the "[ r]etail sales of paraphernalia for use with tobacco and cannabis products." CP at 104. Clarkston issued Valle Del Rio a business license on May 5, 2015. On June 29, 2015, an undercover law enforcement officerpurchased marijuana from Valle Del Rio within Clarkston limits.

2No. 33682-4-111 Clarkston v. Valle DelRio
PROCEDURE On July 1, 2015, the City ofClarkston sued Valle Del Rio. The city requested a declaratoryjudgmentregarding the validity ofOrdinance 1532 and injunctive relief enjoining Valle Del Rio from continuing the retail sale ofmarijuana. The following day, the trial court granted a temporary restraining orderrestraining Valle Del Rio from the retail sale or distribution ofmarijuana within the city ofClarkston. OnAugust 5, the trial court conducted a hearing on show cause to compel Valle Del Rio to show why the temporary restraining order should not remain in effect during the pendency ofthe action. After the hearing, the trial court issued a preliminary injunction that extended the restraints ofthe temporary restraining order. Valle Del Rio sought discretionary review, from this court, ofthe preliminary injunction. Our court commissionerruled that Valle Del Rio is entitled to review as a matter ofright because the injunction altered the status quo when it barred the company from its ongoing business operations. In addition to briefing by the parties, this court granted the State ofWashington leave to file an amicus brief. On January 14, 2016, the City ofClarkston repealed Ordinance 1532, with the repeal taking effect on January 19. Valle Del Rio now conducts business as a retail recreational marijuana outlet within the City ofClarkston. Upon news thatthe city repealed Ordinance 1532, we asked the parties to address whetherthe appeal is moot. The parties agree the appeal is mootbut ask us to render a decision anyway. 3No. 33682-4-III Clarkston v. Valle DelRio
LAWAND ANALYSIS We must first determine whether to review the merits ofthis appeal. Afterthe filing ofthe appeal, the City ofClarkston revoked the ordinance it soughtto enforce by this suit. The parties no longer have a pending dispute. Since Clarkston no longer seeks to preclude Valle Del Rio from conducting business, we canprovide no useful relieffor the company. A case is moot "when it involves only abstract propositions or questions, the substantial questions in the trial court no longer exist, or a court can no longerprovide effective relief." Spokane Research &DefFundv. City of Spokane, 155 Wn.2d 89, 99, 117 P.3d 1117 (2005); State v. Slattum, 173 Wn. App. 640,647,295 P.3d 788 (2013). Generally, this court may not consider an appeal ifthe issue presented is moot. In re Cross, 99 Wn.2d 373,377,662 P.2d 828 (1983); In re Det. of R.R., 77 Wn. App. 795, 799, 895 P.2d 1 (1995). This court will consider a moot issue ifit involves matters ofcontinuing and substantial public interest. Bavandv. OneWestBank, FSB, 176 Wn. App. 475,510,309 P.3d 636 (2013). The criteria to be considered in determining whether a sufficientpublic interest is involved are: (1) the public orprivate nature ofthe question presented, (2) the desirability ofan authoritative determination which will provide future guidance to public officers, and (3) the likelihood that the question will recur. In re Cross, 99 Wn.2d at 377; Sorenson v. City of Bellingham, 80 Wn.2d 547,558,496 P.2d 512 (1972). Washington 4No. 33682-4-111 Clarkston v. Valle DelRio

courts have not addressed whether the dispute must fulfill all three factors before a court resolves a moot issue. The parties argue that our review ofthis appeal would fulfill all three factors. We agree that the appeal fulfills two ofthe factors. The case involves an issue ofpublic importance, notjustone ofprivate interest. The appeal entails the enforcement ofa city ordinance that other cities have adopted or are considering to adopt. Many entrepreneurs seek to open retail marijuana stores, and cities face the question ofwhether to permitthe sale. Division II recently entertained an appeal with the identical issue, butthe parties voluntarily dismissed the appeal before the issuance ofan opinion. We recognize the allure ofan authoritative ruling on whether a city may, by zoning ordinance, preclude marijuana sales throughout the city limits. Nevertheless, we decline to address the merits ofthe appeal because ofthe status at which the case comes before us. We are asked to review the validity ofapreliminary injunction, not a final decision ofthe superior court after a full hearing. The rules behind the issuance ofa preliminary injunction and principles behind ourreview ofthe injunction render any decision questionable as to its solidity. The party who seeks reliefby temporary injunction must show (1) it has a clear legal or equitable right, (2) it has a well-grounded fear ofimmediate invasion ofthat right, and (3) the acts complained ofare either resulting in orwill result in actual and substantial injury to it. Tyler Pipe Indus., Inc. v. Dep 't of Revenue, 96 Wn.2d 785, 792, 

### 5No. 33682-4-111 Clarkston v. Valle DelRio
638 P.2d 1213 (1982). More importantly, at a preliminary injunction hearing, the plaintiffneed notprove, and the trial court does notreach orresolve, the merits ofthe issues underlying the three requirements for permanent injunctive relief. Tyler Pipe Indus., Inc. v. Dep 't of Revenue, 96 Wn.2d at 792-93. Instead, the trial court considers only the likelihoodthat the plaintiffwill ultimately prevail at a trial onthe merits. Tyler Pipe Indus., Inc. v. Dep 't of Revenue, 96 Wn.2d at 793. An order granting a preliminary injunction is not a final determination onthe merits ofthe case. League ofWomen Voters

v. King CountyRecords, Elections &LicensingServs. Div., 133 Wn. App. 374, 385, 135 P.3d 985 (2006). We review an order granting a preliminary injunction for abuse ofdiscretion. Rabon v. City of Seattle, 135 Wn.2d 278, 284, 957 P.2d 261 (1998). A trial court abuses its discretion only when its decision is manifestly unreasonable oris based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Ifwe affirmed the superior court's issuance ofa preliminary injunction, we would merely be confirming a tentative ruling about the merits. Ifwe affirmed the trial court,
we would effectively enshrine the trial court's ruling as the law, on whichthe entire state ofWashington may rely, despite the trial court's ruling only addressing the probability of

success. We would also render a decision without necessarily having a full factual record. These circumstances do notherald a decision beingrespected as stare decisis for other disputes involving the enforcement ofa city ordinance precludingthe sale and 6No. 33682-4-III Clarkston v. Valle DelRio
distribution ofmarijuana. CONCLUSION We dismiss the appeal as moot and deny eitherparty costs on appeal. A majority ofthe panel has determined this opinion will notbeprinted inthe Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

# ~ ~- Fearing,C~ 1 WE CONCUR:



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