Filed 4/17/23 Lawson v. County of Santa Cruz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

STEVEN LAWSON,

Plaintiff and Appellant,

v.

COUNTY OF SANTA CRUZ,

Defendant and Respondent.

 H050208

 (Santa Cruz County

 Super. Ct. No. 21CV02161)

Appellant Steven Lawson (Lawson) seeks a writ of mandate directing the trial 

court to overturn a $174,370 civil penalty imposed by the County of Santa Cruz (County) 

after county law enforcement cited Lawson for the unlicensed cultivation, manufacturing, 

and distribution of commercial cannabis. An administrative hearing officer found that 

Lawson’s commercial cannabis activity violated Santa Cruz County Code 

section 7.128.050, which addresses County licensing requirements for the cultivation, 

manufacture, and distribution of cannabis for commercial purposes. 

On appeal, Lawson contends that the local code sections are preempted by state 

law regulating marijuana. Lawson maintains that the fines imposed by the County 

exceed the punishment authorized by state law and violate the Eighth Amendment’s

restriction on excessive fines. 

We affirm the judgment.
2

I. FACTS AND PROCEDURAL BACKGROUND1

In October 2020, the County, through its sheriff’s office and accompanied by 

personnel from the County’s cannabis compliance unit and the California Department of 

Fish and Wildlife, executed a search warrant at Lawson’s leased property in Soquel. The 

search revealed quantities of cannabis in various locations (totaling 32.26 pounds of 

flower, 32.40 pounds of biomass, and 1650 grams of concentrate), manufacturing 

equipment for butane hash oil, labels, containers, glass tubes, and equipment recognized 

by the County’s cannabis licensing manager as consistent with the manufacture and 

distribution of cannabis products. 

Lawson was cited for unlicensed commercial manufacture, distribution, and 

cultivation of cannabis, in violation of Santa Cruz County Code section 7.128.050, 

subdivisions (A), (B), and (C). The administrative citation fined Lawson $184,370. The 

amount was calculated according to Santa Cruz County Code section 7.128.210, 

subdivision (B)(3), which establishes a dollar amount for each category of product, not to 

exceed $500 per pound of cannabis flower, $100/pound of cannabis biomass, and 

$100/gram of concentrate. Lawson appealed the citation and requested an administrative 

hearing. 

At the administrative hearing, held on May 6, 2021, Lawson, who was represented 

by counsel, challenged the nature of the proceeding and the assessed penalties. Lawson’s 

counsel objected to the administrative hearing, arguing that under United States Supreme 

Court precedent, a person facing fines for conduct that could be classified as criminal is 

entitled to a trial by jury. Lawson’s counsel also objected on the ground that state law 

limited the County’s authority to collect civil penalties to the procedures and penalties 

1 These facts are drawn from the evidence presented at the administrative hearing 

on Lawson’s appeal of his administrative citation and summarized in the hearing officer’s 

decision and order. Lawson does not dispute the factual basis for the administrative

decision.
3

specified by Business and Professions Code section 26038,

2

established as part of 

Proposition 64, in which voters enacted the Control Regulate and Tax Adult Use of 

Marijuana Act (AUMA) (Prop. 64, § 6.1, approved by voters, Gen. Elec. (Nov. 8, 2016)), 

now part of the Medicinal and Adult-Use Cannabis Regulation and Safety Act 

(MAUCRSA), codified in sections 26000 to 26260 (Stats. 2017, ch. 27 (Sen. Bill No. 

94), eff. Jan. 1, 2018).3

The hearing officer heard testimony and considered both sides’ posthearing and 

supplemental briefs, in which Lawson did not dispute the factual basis for the citation but

argued that any penalty for violating the County ordinance was preempted by state law. 

As authority for his preemption argument, Lawson relied on Health and Safety Code 

sections 11358 and 11359 (which he asserted limited the imposition of fines to $500) and 

section 26038 (which he asserted limited civil penalties for unlicensed marijuana 

activities to three times the cost of a state license and forfeiture of the marijuana, but only 

through the institution of a civil action by the prosecuting authority). Lawson also argued 

that the amount of the fine was so disproportionate to the limits under state law that its 

imposition violated the excessive fines clause of the Eighth Amendment to the United 

States Constitution. 

The County responded that its ordinance for regulating both licensed and 

unlicensed cannabis cultivation and other activities is authorized by state law and argued 

that Lawson had not demonstrated the penalty imposed was excessive. In supplemental 

briefing, the County further asserted that the relevant state laws expressly allow local 

jurisdictions to exercise local control over cannabis activities and do not limit civil 

penalties for local code violations. 

2 Unspecified statutory references are to the Business and Professions Code.

3 Although Lawson refers to AUMA in this appeal, as he did in the administrative 

and trial court proceedings, MAUCRSA is the applicable state law. We summarize the 

relevant statutes in our analysis, part II.B.1, post. 
4

In June 2021, the administrative hearing officer issued a written decision and order

(order), rejecting Lawson’s preemption and excessive fine arguments and reducing the 

fine amount by $10,000. The order held that state law provisions governing criminal 

penalties for unlawful cannabis activities (e.g., Health & Saf. Code, §§ 11358, 11359) do 

not impact civil penalties for unlicensed commercial cannabis activity. The order further 

explained, based on the language and legislative history of Proposition 64 (enacting 

AUMA), that section 26038 neither prohibits the County from seeking civil penalties in 

an administrative proceeding, nor limits the fine that may be imposed. The order also 

concluded, applying the “Bajakajian factors” (based on United States v. Bajakajian 

(1998) 524 U.S. 321 (Bajakajian)), that the fine did not violate the constitutional 

prohibition on excessive fines, as Lawson had not shown the fine was disproportionate to 

his culpability and the harm, including environmental harm, attributed to unlicensed 

cannabis activity. Lastly, the order found Lawson’s first-time offender status to be a 

mitigating factor under the County’s ordinance and reduced the amount of the fine by 

$10,000. 

The final administrative order found that Lawson had used his property for 

cultivating, manufacturing, and distributing cannabis commercially, without a license, in 

violation of Santa Cruz County Code section 7.128.050, subdivisions (A)–(C), and after 

making findings on the issues raised in the administrative appeal, ordered Lawson to pay 

$174,370. 

In September 2021, Lawson filed a petition for writ of mandate/prohibition in the 

trial court under Code of Civil Procedure section 1094.5 (petition). Lawson asked the 

trial court to order the County to vacate the administrative order. Both sides filed written 

briefs which largely reiterated the legal arguments they had made in the administrative 

hearing. Lawson argued the local ordinances authorized the imposition of fines “in excess 

of the amount authorized by state law for the identical marijuana related conduct” and 

were preempted by those laws—specifically section 26038 and Health and Safety Code 
5

sections 11358, 11359, and 11360. Lawson also reiterated his contention that the fine 

was excessive under the Eighth Amendment. 

The County opposed Lawson’s petition. It disputed the asserted grounds for 

preemption, citing a 2021 appellate court decision (now pending review before the 

California Supreme Court), which rejected a similar preemption argument concerning 

criminal penalties imposed on a property owner for unlicensed cannabis activities on the 

premises. (See Wheeler v. Appellate Division of Superior Court (2021) 72 Cal.App.5th 

824, 828, review granted Mar. 16, 2022, S272850 (Wheeler).) The County further 

asserted that the ordinances Lawson violated were neither duplicative of nor in conflict 

with the referenced state statutes, and the fine imposed were not excessive.

In May 2022, the trial court issued a written order denying the petition for writ of 

mandate. The court found that state law does not preempt the local ordinances, which 

authorized the penalties set forth in Santa Cruz County Code section 7.128.210. It also 

concluded that the fine imposed was supported by the administrative hearing officer’s 

“well-reasoned analysis of the Bajakajian factors” and by substantial evidence in the 

record, and therefore did not violate the Eighth or Fourteenth Amendments. 

On May 31, 2022, the trial court entered judgment denying the petition for writ of 

mandate and ordering Lawson to pay the $174,370 fine in administrative civil penalties. 

Lawson timely appealed the judgment. 

II. DISCUSSION

Lawson contends the trial court erred in denying his petition for writ of mandate, 

because the local ordinances were preempted by state law and the fine imposed on him 

was excessive under the Eighth Amendment. The County responds that state laws 

relating to commercial cannabis activities do not preempt the local ordinance governing 

civil penalties in this case and that the trial court correctly applied the standard for 

reviewing an excessive fine claim under the Eighth Amendment. We address each issue 

in turn, starting with the standard of review and applicable legal principles. 
6

A. Applicable Standards of Review

Code of Civil Procedure section 1094.5 governs judicial review of adjudicatory 

decisions by administrative agencies. (Akella v. Regents of University of California

(2021) 61 Cal.App.5th 801, 813 (Akella).) The inquiry in such a case extends to whether 

the respondent to the administrative mandate petition (here, the County) “has proceeded 

without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was 

any prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd. (b).) An abuse of 

discretion is established if the respondent agency has failed to proceed “in the manner 

required by law, the [agency’s] order or decision is not supported by the findings, or the 

findings are not supported by the evidence.” (Ibid.) Whether the record supports the

agency’s findings and factual basis for its decision or order is a question of substantial 

evidence in light of the entire administrative record. (Id., subd. (c); Akella, at pp. 813–

814; see Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 

Cal.3d 506, 514–515.) However, to the extent the administrative decision involves a 

question of law, including the interpretation of statutes and application of judicial 

precedent, the reviewing court exercises independent judgment. (Akella, at p. 815; 

McAllister v. California Coastal Com. (2008) 169 Cal.App.4th 912, 921–922; Ghirardo 

v. Antonioli (1994) 8 Cal.4th 791, 800–801 (Ghirardo).)

In applying this standard on appeal, “we do not ‘undertak[e] a review of the trial 

court’s findings or conclusions. Instead, “we review the matter without reference to the 

trial court’s actions. In mandamus actions, the trial court and appellate court perform the 

same function.” ’ ” (Jefferson Street Ventures, LLC v. City of Indio (2015) 236 

Cal.App.4th 1175, 1197 (Jefferson Street).) 

With respect to Lawson’s appeal from the trial court’s denial of his administrative 

mandate petition, we agree with the County that the question of state law preemption is 

subject to our independent review. The “ultimate question” in a preemption challenge is 

whether the ordinance conflicts with the statute. (Sherwin-Williams Co. v. City of Los 
7

Angeles (1993) 4 Cal.4th 893, 902.) This question presents a “legal issue involving 

statutory construction and the ascertainment of legislative intent, which we [] review de 

novo.” (Spielholz v. Superior Court (2001) 86 Cal.App.4th 1366, 1371.) Similarly, 

where the underlying facts are not in dispute, we review de novo whether the fine 

imposed by the County is excessive under the Eighth Amendment. (Ghirardo, supra, 8 

Cal.4th at p. 801; Bajakajian, supra, 524 U.S. at p. 336, fn. 10.) 

B. Preemption of Commercial Cannabis Activities

Lawson argues that state law under AUMA created a comprehensive scheme that 

established limits on fines for marijuana offenses and unlicensed commercial conduct. 

He contends that in passing Proposition 64, voters set the civil and criminal penalties and 

punishment for marijuana-related conduct, including unlicensed commercial cultivation 

and sales, thus occupying the field and preempting punishment by local ordinance for the 

same conduct covered by the state statute. (See Prop. 64, § 6.1, approved by voters, Gen. 

Elec. (Nov. 8, 2016).) In support of his preemption argument, Lawson invokes the 

criminal penalties provided for in Health and Safety Code sections 11358, 11359, and 

11360, as well as the civil penalty provisions set forth in sections 26037 and 26038.

In response, the County maintains that although Lawson cites to AUMA, the 

applicable state law is MAUCRSA, since it amended and consolidated the licensing 

schemes for medical cannabis and adult-use cannabis. The County argues that Lawson’s 

reference to both criminal and civil penalty schemes makes it unclear which fine limit he

claims has preemptive effect in this matter, and, in any event, Lawson fails to 

demonstrate any preemption applies. 

1. Applicable Local and State Law

The County cited and ultimately fined Lawson under chapter 7.128 of the Santa 

Cruz County Code, governing licenses for non-retail commercial cannabis businesses.

The stated purpose of the chapter is to regulate non-retail commercial cannabis business 

in the unincorporated areas of the County and to mitigate the negative impacts and 
8

secondary effects of those activities. Such secondary effects include demands on law 

enforcement and environmental damage due to “destructive cannabis cultivation, 

manufacturing, and distribution activities.” (Santa Cruz County Code, § 7.128.010.) The 

ordinance is further “not intended to conflict” but to be interpreted in a manner 

“compatible with Federal and State enactments and in furtherance of the public purposes 

that those enactments encompass.” (Ibid.)

Lawson was found to have violated Santa Cruz County Code section 7.128.050, 

subdivisions (A), (B), and (C), which provide, respectively, that it is “unlawful” and a 

“public nuisance” for any person to “cultivate cannabis for commercial purposes” (id.,

subd. (A)) without a valid local and state license, to “manufacture cannabis products”

(id., subd. (B)) without a valid local and state license, and to “distribute cannabis or 

cannabis products” (id., subd. (C)) without a valid local and state license. The ordinance 

defines in relevant part the applicable terms, including “[c]annabis cultivation,”

considered by the County “to be an agricultural activity,” (id., § 7.128.030, subd. (E)), 

“cannabis distribution” (id., subd. (G)), and “cannabis manufacture” (id., subd. (I)). It 

also states the requirements and procedures to obtain licenses under the chapter for 

cultivation, manufacturing, and/or distribution (id., §§ 7.128.090–7.128.170), and the 

grounds for denial, suspension, or revocation of a license (id., § 7.128.190). It further 

provides that “proof of knowledge, intent, or other mental state” is not required to 

establish a violation. (Id., § 7.128.210, subd. (A).)

Regarding enforcement, the ordinance provides that violations of the chapter 

“shall be subject to administrative citation” and other measures, such as injunctive relief, 

costs of abatement or restoration, investigative costs, and attorney fees. (Santa Cruz 

County Code, § 7.128.210, subd. (A).) The ordinance provides that each violation of the 

provisions of the chapter constitutes a separate violation, deems each violation “unlawful, 

a public nuisance, and an immediate threat to public health, safety and welfare,” and 
9

authorizes fines and penalties, pursuant to Government Code section 53069.4, for 

violations of the chapter. (Ibid.) 

The civil penalties for a nonlicensee who receives an administrative citation for 

commercial cannabis activity reflect the amounts applied in Lawson’s case, including 

fines “not exceeding $100.00 per gram of cannabis concentrate, [¶] . . . $100 per pound of 

cannabis biomass, [¶] . . . [and] $500 per pound of cannabis flower.” (Santa Cruz County 

Code, § 7.128.210, subd. (B)(3)(c)–(e).) The ordinance additionally states that the 

County or office of the district attorney may also pursue remedies and actions available 

under state and local laws for any violations associated with the unlawful cannabis 

activity. (Id., subd. (G).)

Lawson contends that the ordinance provisions under which he was cited, Santa 

Cruz County Code sections 7.128.050 and 7.128.210, are preempted by state law, 

specifically Health and Safety Code sections 11358, 11359 and 11360, and section 

26038, which he cites as AUMA. Due to subsequent statutory changes, we will refer to

the relevant law as MAUCRSA.

4

The purpose of MAUCRSA “is to establish a comprehensive system to control and 

regulate the cultivation, distribution, transport, storage, manufacturing, processing, and 

4 The legislative enactment of MAUCRSA in 2017 followed that of AUMA in 

2016, pursuant to statewide voter initiative (Proposition 64). (Stats. 2017, ch. 27, (Sen. 

Bill No. 94), eff. Jan. 1, 2018.) Prior to AUMA, the Medical Cannabis Regulation and 

Safety Act (MCRSA) comprised the state regulatory framework for the licensing and 

enforcement of medicinal cannabis cultivation, manufacturing, retail sale, transportation, 

storage, delivery, and testing. AUMA established a regulatory framework for adults 21 

years of age or older to legally grow, possess, and use cannabis for nonmedicinal 

purposes, as well as to sell and distribute cannabis through a regulated business. (Stats. 

2017, ch. 27, § 1.) One purpose of MAUCRSA was to consolidate the provisions of 

MCRSA and AUMA into “a single regulatory structure for both medicinal and adult-use 

cannabis and provide for temporary licenses to those applicants that can show compliance 

with local requirements.” (Stats. 2017, ch. 27, § 1, subd. (g); Legis. Counsel’s Dig., Sen. 

Bill No. 94 (2017–2018 Reg. Sess.) Stats. 2017, ch. 27.)
10

sale of both” medicinal and adult-use cannabis and to identify “the power and duties of 

the state agencies responsible for controlling and regulating the commercial medicinal 

and adult-use cannabis industry.” (§ 26000, subds. (b), (c).) It expressly dictates that its 

provisions “shall not be interpreted to supersede or limit existing local authority” to 

enforce zoning requirements or local ordinances, including “local license, permit, or other 

authorization requirements.” (§ 26200, subd. (a)(2).) 

MAUCRSA charges the administration and enforcement of cannabis regulations 

to a specified state department, creates a state licensing process for cannabis businesses, 

and imposes civil penalties for unlicensed commercial cannabis activity. (§§ 26010–

26018 [administration provisions], 26030–26037 [enforcement provisions], 26038). 

Specifically, “A person engaging in commercial cannabis activity without a license as 

required by this division shall be subject to civil penalties of up to three times the amount 

of the license fee for each violation. Each day of operation shall constitute a separate 

violation of this section.” (§ 26038, subd. (a)(1).) It provides that in addition to civil 

penalties, “criminal penalties shall continue to apply to an unlicensed person engaging in 

commercial cannabis activity in violation of this division.” ( Id., subd. (g).) 

Furthermore, it expressly disavows any preemptive effect: “This section does not limit, 

preempt, or otherwise affect any other state or local law, rule, regulation, or ordinance 

applicable to the conduct described in subdivision (a), or otherwise relating to 

commercial cannabis activities.” (Id., subd. (h)(1).) It also specifies “[f]ailure to comply 

with the requirement of a local ordinance regulating commercial cannabis activity” as a 

basis for enforcement of disciplinary actions. (§ 26030, subd. (f).) 

Unlike section 26038, which governs civil penalties for unlicensed commercial 

cannabis activities, the Health and Safety Code provisions cited by Lawson address 

criminal sanctions. Each section, in relevant part, provides for punishment “by 

imprisonment in a county jail for a period of not more than six months or by a fine of not 

more than five hundred dollars ($500), or by both that fine and imprisonment,” of a 
11

person over 18 years old, “who plants, cultivates, harvests, dries, or processes more than 

six living cannabis plants” (Health & Saf. Code, § 11358, subd. (c)), “possesses cannabis 

for sale” (id., § 11359, subd. (b)), or “sells, furnishes, administers, or gives away, or 

offers to . . . sell, furnish, administer, or give away, . . . any cannabis” (id., § 11360, subd. 

(a)(2)).

Having summarized the relevant ordinances and statutes at issue, we turn to 

Lawson’s preemption claim.

2. Preemption Principles

To decide whether preemption applies, we follow the California Supreme Court’s 

analytical framework set out in Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 

Cal.4th 1139 (Big Creek Lumber), O’Connell v. City of Stockton (2007) 41 Cal.4th 1061

(O’Connell), and City of Riverside v. Inland Empire Patients Health & Wellness Center, 

Inc. (2013) 56 Cal.4th 729 (Inland Empire). Our state Constitution authorizes cities and 

counties to enact and enforce local ordinances which are “not in conflict” with the state’s

“general laws.” (Cal. Const., art. XI, § 7.) Otherwise valid local legislation that conflicts 

with state law is void. (O’Connell, at p. 1065; Inland Empire, at p. 743.) 

“ ‘ “A conflict exists if the local legislation ‘ “duplicates, contradicts, or enters an 

area fully occupied by general law, either expressly or by legislative implication.” ’ ” ’ ” 

(Inland Empire, supra, 56 Cal.4th at p. 743.) In other words, “[a] conflict causing 

preemption by state law can occur in three different ways: the local ordinance (1) 

duplicates state law; (2) contradicts state law; or (3) enters an area or field fully occupied 

by state law.” (Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214 

Cal.App.4th 1534, 1552.)

Local legislation is duplicative “when it is ‘coextensive’ with state law.” 

(O’Connell, supra, 41 Cal.4th at p. 1067 [providing example of local legislation that 

purports to impose the same criminal prohibition imposed by state law].) It is 

contradictory “when it is inimical to or cannot be reconciled with state law.” (Id. at 
12

p. 1068.) It enters an area or field fully occupied by state law “in either of two 

situations—when the Legislature ‘expressly manifest[s]’ its intent to occupy the legal 

area or when the Legislature ‘impliedly’ occupies the field.” (Ibid.) The Legislature’s

intent to occupy an area of law may be implied “when ‘ “(1) the subject matter has been 

so fully and completely covered by general law as to clearly indicate that it has become 

exclusively a matter of state concern; (2) the subject matter has been partially covered by 

general law couched in such terms as to indicate clearly that a paramount state concern 

will not tolerate further or additional local action; or (3) the subject matter has been 

partially covered by general law, and the subject is of such a nature that the adverse effect 

of a local ordinance on the transient citizens of the state outweighs the possible benefit to 

the” locality.’ ” (Ibid.) 

In cases involving local government regulation of an area traditionally subject to 

local government control under the grant of police power in the state Constitution, such 

as land use, “California courts will presume, absent a clear indication of preemptive 

intent from the Legislature, that such [local] regulation is not preempted by state statute.” 

(Big Creek Lumber, supra, 38 Cal.4th at p. 1149; Inland Empire, supra, 56 Cal.4th at 

p. 743.)

The party asserting preemption has the burden to demonstrate a conflict between 

the local ordinance and state law. (Big Creek Lumber, supra, 38 Cal.4th at p. 1149.) 

3. Analysis

Lawson primarily contends that the County’s ordinance is subject to field 

preemption. He contends that voters approved Proposition 64 with the express intent and 

purpose to establish a “comprehensive system” (Prop. 64, § 3, approved by voters, Gen. 

Elec. (Nov. 8, 2016)) of legalization, regulation, and control of nonmedical marijuana 

and marijuana products for use by adults 21 years and older, thereby occupying the field 

of regulating marijuana related activities, particularly as it pertains to punishment. 

Lawson relies on statements in the uncodified findings and declarations, and in the ballot 
13

materials presented to voters, to argue that voters signaled an intent for the law to

generally reduce penalties associated with cannabis conduct, and furthermore to specify 

those punishments. 

This argument fails on a number of grounds. Lawson’s characterization of the 

state statutory scheme as having occupied the field of cannabis regulation is not 

supported by the text or stated purpose of MAUCRSA, which was in effect when the 

County cited Lawson under the local ordinances. That purpose is to establish a 

“comprehensive system” to control and regulate the cultivation, distribution, transport, 

storage, manufacturing, processing, and sale of both medicinal and adult-use cannabis 

and cannabis products. (§ 26000, subd. (b).)

It is apparent that use of the term “comprehensive” in this context does not signify

an intent to occupy the field to the exclusion of local regulation. As stated in the 

uncodified findings and declarations accompanying MAUCRSA, the Legislature 

recognized the need for a system to allow state entities to implement the voters’ intent to 

issue cannabis licenses beginning in January 2018, “while avoiding duplicative costs and 

inevitable confusion among licensees, regulatory agencies, and the public and ensuring a 

regulatory structure that prevents access to minors, protects public safety, public health 

and the environment, as well as maintaining local control . . . .” (Stats. 2017, ch. 27, § 1, 

subd. (g), italics added.) The Legislature thus deemed it “necessary to provide for a 

single regulatory structure for both medicinal and adult-use cannabis and provide for 

temporary licenses to those applicants that can show compliance with local 

requirements.” (Ibid.)

That the Legislature intended for MAUCRSA not to preempt local regulations, but 

in fact to require “compliance with local requirements” (Stats. 2017, ch. 27, § 1, subd. 

(g)) as part of the state licensing scheme, is evident in various ways throughout the 

statute. As the Court of Appeal observed in Wheeler, “MAUCRSA explicitly disavows 

any legislative intention to occupy the field of commercial cannabis regulation, and 
14

explicitly contemplates that cities and counties will also impose their own licensing 

requirements and other restrictions on commercial cannabis activities.” (Wheeler, supra,

72 Cal.App.5th at p. 840, review granted, citing §§ 26030, subd. (f), 26200, subd. (a)(1).) 

MAUCRSA expressly states that its provisions “shall not be interpreted to 

supersede or limit existing local authority” to enforce local zoning requirements or 

ordinances, including “enforcement of local license, permit, or other authorization 

requirements.” (§ 26200, subd. (a)(2).) Recent legislative amendments to MAUCRSA 

have reiterated this intent in the context of civil penalty enforcement. Following 

amendments in 2021, section 26038, which Lawson cites as support for his preemption 

argument, explicitly states, “[t]his section does not limit, preempt, or otherwise affect any 

other state or local law, rule, regulation, or ordinance applicable to the conduct described 

in subdivision (a), or otherwise relating to commercial cannabis activities.” (§ 26038, 

subd. (h)(1), formerly subd. (g), amended by Stats. 2021, ch. 530 (Assem. Bill No. 1138), 

§ 1, eff. Jan. 1, 2022.) Amendments in 2022 added: “This section is meant to further the 

intent of the . . . [AUMA], which allows local governments to reasonably regulate the 

cultivation of nonmedical cannabis for personal use by adults 21 years of age and older 

through zoning and other local laws.” (§ 26038, subd. (h)(2), added by Stats. 2022, ch. 

56 (Assem. Bill No. 195), § 2, eff. June 30, 2022.) The conduct described in section 

26038, subdivision (a), is a person engaging in unlicensed commercial cannabis activity.

We reject the suggestion that MAUCRSA, or the voters through passage of the 

AUMA, manifested an express intent to occupy the field or strictly limit civil penalties 

for unlicensed commercial cannabis activity.

Lawson’s reliance on the statutory grant of authority to the county counsel (or 

local prosecuting agency) to institute legal proceedings for the purpose of enforcing the 

civil penalties provision (§ 26038, subds. (b), (e)) is misplaced. Contrary to Lawson’s 

assertion that the statutory procedure for filing a civil action in the superior court is the 

exclusive means of pursuing civil penalties for unlicensed commercial marijuana activity, 
15

and that voters intended to provide “very specific limits” on the amount of penalties for 

those activities, the statutory provisions expressly preserve local authority to adopt

regulations or ordinances applicable to unlicensed commercial cannabis conduct. 

(§§ 26200, subd. (a)(2), 26038, subd. (h)(1), (2).) Attendant to such local regulation is 

the statutory allowance for the local agency to impose an administrative fine or penalty 

on any violation of the subject ordinance. (Gov. Code, § 53069.4, subd. (a) [providing 

that a local legislative body may, by ordinance, make any violation of a local ordinance 

subject to an administrative fine or penalty and shall set the administrative procedures 

governing the imposition, enforcement, collection, and administrative review of the 

administrative fines or penalties].) 

In asserting that the $174,370 fine imposed by the County “is more severe than 

anything the voter[]s approved, and more severe than a 6-month jail term and a $500 

fine,” Lawson appears to conflate the criminal and civil penalty schemes. Lawson cites 

People v. Villarino (1955) 134 Cal.App.2d Supp. 893, for the proposition that a local 

ordinance conflicts with state law, even if the two are identical, due to “ ‘ “the inevitable 

conflict of jurisdiction which would result from dual regulations covering the same 

ground.” ’ ” (Id. at p. 897.) But Villarino involved a local ordinance imposing criminal 

sanctions for the same conduct covered by the state law (former Health & Saf. Code, 

§ 11721, criminalizing the use of or addiction to narcotics). (Villarino, at pp. 894–895.) 

The Santa Cruz County Code penalty provisions for violations of the local licensing 

requirements for non-retail, commercial cannabis businesses in the county carry only 

civil sanctions and are not, in substance, criminal. (See Cohen v. Board of Supervisors

(1985) 40 Cal.3d 277, 293 (Cohen) [distinguishing an ordinance that is “in substance a 

criminal statute” attempting to prohibit conduct proscribed or permitted by state law, 

from a local licensing law that regulates in an area not exclusive to state law].) 

Moreover, the County ordinance which Lawson was found to have violated neither 

duplicates nor contradicts the cited Health and Safety Code sections. In certain respects, 
16

the County ordinance addresses a broader range of commercial activities than the state 

criminal provisions. The County ordinance violations include packaging and storing of 

cannabis (under the definition of “cultivation”) (Santa Cruz County Code, §§ 7.128.050, 

subd. (A), 7.128.030, subds. (E)), and manufacturing of cannabis products (id., 

§ 7.128.050, subd. (C), § 7.128.030, subd. (I).) Though Lawson characterizes Health and

Safety Code sections 11358, 11359, and 11360 as preempting any punishment authorized 

by the County ordinance, they do not address those specified areas of conduct. 

Moreover, the County’s ordinance concerning cultivation is specific to cultivation for

commercial purposes without required licenses (Santa Cruz County Code, § 7.128.050, 

subd. (A)), whereas the criminal penalty for a person over 18 years old who “plants, 

cultivates, harvests, dries, or processes” cannabis (Health & Saf. Code, § 11358, subd. 

(c)) is based on the number of plants, not their commercial purpose. 

The County’s commercial cannabis licensing provisions also require “[n]o proof 

of knowledge, intent, or other mental state . . . to establish a violation” and deem each 

violation to be a public nuisance and threat to public health, safety and welfare. (Santa 

Cruz County Code, § 7.128.210, subd. (A); see also id., § 7.128.050, subds. (A)–(C) 

[making it “a public nuisance” for any person to cultivate cannabis for commercial 

purposes without a license, manufacture, cannabis products, or distribute cannabis].) The 

strict liability nature of the County’s commercial cannabis licensing scheme, intended to 

address the public nuisance posed by unlicensed, commercial cannabis cultivation, 

manufacturing, and distribution, undercuts Lawson’s argument that the local regulations 

penalize the same conduct, or are coextensive with, the state law criminal provisions. 

The state criminal statutes have been interpreted to include a mens rea element as to the 

nature or character of the marijuana as a controlled substance. (See People v. Romero

(1997) 55 Cal.App.4th 147, 153 [examining origins of the knowledge requirement as to 

the “ ‘controlled substance’ character of the item” so as to bring the conduct within the 

criminal provisions of the Health & Saf. Code]; People v. Busch (2010) 187 Cal.App.4th 
17

150, 158 [same]; see also CALCRIM Nos. 2370 [standard jury instruction on cannabis 

planting/cultivating/processing in violation of Health & Saf. Code, § 11358], 2350 

[standard jury instruction on sale or furnishing cannabis in violation of Health & Saf. 

Code, § 11360, subd. (a)], 2352 [standard jury instruction on possessing cannabis in 

violation of Health & Saf. Code, § 11359].) The different mental states applicable to the 

County ordinance and the state criminal statutes support our conclusion that the

provisions do not penalize the same conduct. 

Lawson contends the circumstances here are analogous to those in O’Connell and 

in A & B Cattle Co. v. City of Escondido (1987) 192 Cal.App.3d 1032 (A & B Cattle), 

based on what he characterizes as the pervasiveness and comprehensive nature of the 

state law governing marijuana conduct and penalties. We disagree. 

In O’Connell, the California Supreme Court held that the state’s Uniform 

Controlled Substances Act (UCSA) preempted a provision of Stockton’s municipal code 

which provided for the forfeiture of vehicles used to acquire controlled substances or 

solicit prostitution. (O’Connell, supra, 41 Cal.4th at pp. 1071, 1074.) The court 

explained, as to the forfeiture of vehicles used in acquiring controlled substances, that the 

“comprehensive nature of the UCSA in defining drug crimes and specifying penalties 

(including forfeiture) is so thorough and detailed as to manifest the Legislature’s intent to 

preclude local regulation.” (Id. at p. 1071.) Relevant to the O’Connell court’s 

determination was the UCSA’s specific treatment of forfeiture. The UCSA limits vehicle 

forfeiture as a penalty “only upon proof beyond a reasonable doubt of the vehicle’s use to 

facilitate certain serious drug crimes” involving Schedule I controlled substances in 

specified amounts, whereas the municipal ordinance allowed vehicle forfeiture “upon 

proof merely by a preponderance of evidence of a vehicle’s use” in much less serious 

crimes, including “low-grade misdemeanor[s]” not subject to vehicle forfeiture under the 

UCSA. (Ibid., italics omitted.) The Supreme Court interpreted “the Legislature’s 

comprehensive enactment of penalties for crimes involving controlled substances, but 
18

exclusion from that scheme of any provision for vehicle forfeiture for simple possessory 

drug offenses” as manifesting “a clear intent to reserve that severe penalty for very 

serious drug crimes,” thus preempting the ordinance’s incongruous forfeiture penalty. 

(Id. at p. 1072.)

In O’Connell, the legislative scheme governing controlled substances was not only 

comprehensive but also imposed limits on application of the penalty at issue, precluding 

vehicle forfeiture under circumstances the local ordinance would have allowed. 

(O’Connell, supra, 41 Cal.4th at pp. 1071–1072.) By contrast, the state legislative 

scheme governing marijuana, including penalty provisions for unlicensed conduct 

involving commercial cannabis, contains no analogous limitations that might be 

interpreted as being “so thorough and detailed as to manifest the Legislature’s intent to 

preclude local regulation.” (Id. at p. 1071.) The amount of civil penalty which may be 

pursued in a civil action under section 26038, limited to “up to three times the amount of 

the license fee for each violation,” where “[e]ach day of operation shall constitute a 

separate violation of this section” (§ 26038, subd. (a)(1)), does not preclude alternative 

civil penalties under local authority. To the contrary, as already discussed, MAUCRSA 

expressly contemplates an arrangement that enables local regulation of commercial 

cannabis activities in addition to, and in conjunction with, a comprehensive state system 

of regulation. (Id., subd. (h)(1), (2).

Lawson’s reliance on A & B Cattle is similarly unavailing. The ordinance in that 

case declared it unlawful for retailers, without obtaining a license, to sell paraphernalia 

designed for use with illegal drugs, and made any violation a misdemeanor carrying

criminal penalties not exceeding a $500 fine and/or six months’ imprisonment. (A & B 

Cattle, supra, 192 Cal.App.3d at p. 1036.) The Legislature thereafter enacted a state law 

defining drug paraphernalia and penalizing the delivery, possession, or transfer of 

paraphernalia, by punishment not exceeding a $1,000 fine and/or one year imprisonment. 

(Id. at pp. 1036–1037.) The appellate court held that the laws were duplicative and 
19

contradictory, and further that the state law prohibiting distribution of drug paraphernalia 

was sufficiently comprehensive to exclude the local regulation. (Id. at p. 1039.) It 

reasoned that although the state law did not expressly regulate licensing of drug 

paraphernalia retailers, the Legislature’s intent in enacting the law was to “totally ban the 

manufacture and distribution of drug paraphernalia as statutorily defined in California” 

and, consequently, to prohibit retail of drug paraphernalia “to the exclusion of [the] local 

ordinance.” (Id. at p. 1042.) The appellate court noted, in further support of its 

preemption conclusion, that “the Legislature included no express language permitting 

local regulation on these matters as it did” in other, similar statutory schemes. (Ibid.) 

Lawson focuses on the duplicative and contradictory penalty schemes in A & B 

Cattle, and asserts the same is true here, insofar as the County ordinance exacts 

punishment in the form of civil penalties, despite civil penalties being the province of 

section 26038. This argument ignores the relevant distinctions between overlapping 

criminal versus civil schemes discussed above (see, e.g., Cohen, supra, 40 Cal.3d at 

p. 293). It also fails to recognize the express intent of the Legislature, in establishing 

MAUCRSA and carrying out the purpose of AUMA, to ensure that local governments

retain regulatory authority over local cannabis activities, including pertaining to land use 

and business licensing.

In sum, Lawson’s preemption claim does not find support in the statutory text, 

voter or legislative intent behind the relevant state laws, or case authority. Nothing in 

section 26038, or in Health and Safety Code sections 11358, 11359 and 11360, indicates 

an express or implied intent to preempt local legislation concerning cannabis licensing

and regulation of land use and nuisance activities, or to preclude civil penalties based on 

the local licensing and regulatory scheme. The penalties imposed by the County pursuant 

to Santa Cruz County Code sections 7.128.050 and 7.128.210, are not inconsistent with 

or duplicative of the state statutory framework, which expressly provides for concurrent, 
20

local regulation of local cannabis businesses. We conclude the County ordinance and 

penalty provisions are valid. 

C. Eighth Amendment Limit on Excessive Fines

Lawson contends that the fine imposed by the County violates the Eighth 

Amendment’s limit on excessive fines under the standard articulated by the United States 

Supreme Court in Bajakajian and applied to the states through the due process clause of 

the Fourteenth Amendment. He asserts that the fine imposed “is more than 200 times”

the amount allowed by Health and Safety Code sections 11358, 11359, and 11360, for 

what he maintains is “identical conduct.”5 He also argues that the Bajakajian factors 

employed by the trial court are “inappropriate []” because the voters considered those 

same factors but elected to limit criminal fines to $500 per violation and civil penalties to 

three times the cost of a license per violation. Lawson thus appears to assert that the 

excessive fines framework under the Eighth Amendment applies but contends that the 

trial court erred in applying the factors courts use to evaluate excessive fines claims.

Lawson’s arguments miss the mark. As with other aspects of review of the 

administrative mandate petition, we must decide whether the County abused its discretion 

by failing to proceed in the manner required by law, or in a manner not supported by the 

findings and the evidence in the administrative record. (Akella, supra, 61 Cal.App.5th at 

p. 814; Code Civ. Proc., § 1094.5, subd. (b).) Although Lawson refers to the “ ‘factors’ 

employed by the trial court,” the proper point of reference in a mandamus action is not

the trial court’s findings or conclusions, but those of the administrative agency. 

(Jefferson Street, supra, 236 Cal.App.4th at p. 1197.) 

5 Lawson variously asserts that the fine imposed by the County is “more than 200 

times” the criminal penalty and, in the same argument, a “staggering 340 times more than 

the maximum of a criminal fine.” Lawson does not explain his method for calculating 

these ratios. It appears, as to the latter figure, that Lawson divides the fine imposed by a 

single violation of the applicable Health and Safety Code provision at a $500 penalty 

level ($174,370 [fine imposed] / $500 [penalty for single violation] = $348.74). 
21

Whether the fine imposed by the County is excessive under the Eighth 

Amendment is a mixed question of law and fact, which we review de novo. (Ghirardo, 

supra, 8 Cal.4th at p. 801; Bajakajian, supra, 524 U.S. at p. 336, fn. 10.) The facts 

underlying imposition of the fine, which the administrative hearing officer calculated 

based on his findings that Lawson violated Santa Cruz County Code section 7.128.050, 

subdivisions (A)–(C), are not in dispute.

Both the United States Supreme Court and California Supreme Court have 

provided guidance in determining whether a fine is unconstitutionally excessive. The 

Eighth Amendment to the United States Constitution states: “Excessive bail shall not be 

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 

(U.S. Const., 8th Amend.) In Bajakajian, the United States Supreme Court held that civil 

penalties which serve as punishment are subject to the Eighth Amendment and are 

considered “excessive” if they are “grossly disproportional to the gravity of a defendant’s 

offense.” (Bajakajian, supra, 524 U.S. at p. 334.) According to Bajakajian, “[t]he 

touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle 

of proportionality: The amount of the forfeiture must bear some relationship to the 

gravity of the offense that it is designed to punish.” (Ibid.) 

The California Supreme Court in People ex rel. Lockyer v. R.J. Reynolds Tobacco 

Co. (2005) 37 Cal.4th 707, (R.J. Reynolds) recognized Bajakajian as the leading United 

States Supreme Court authority on the Eighth Amendment’s prohibition against excessive 

fines. Our Supreme Court also explained the application of the Eighth Amendment’s

prohibition against excessive fines to the states through the due process clause of the 

Fourteenth Amendment, and the “similar protections” afforded by the state Constitution. 

(Id., at p. 728; see also Timbs v. Indiana (2019) ___ U.S. ___, 139 S.Ct. 682, 687.) The 

court identified the four considerations relevant to deciding whether a fine violates the 

principle of proportionality under Bajakajian. These are: (1) the defendant’s culpability;

(2) the relationship between the harm and the penalty; (3) the penalties imposed in similar 
22

statutes; and (4) the defendant’s ability to pay. (R.J. Reynolds, at p. 728, citing 

Bajakajian, supra, 524 U.S. at pp. 337–338.) 

Lawson has offered no support for his contention that application of the 

Bajakajian factors in this case was “inappropriate[]” or constituted legal error. In its

written order, the administrative hearing officer summarized the applicable law in 

assessing an excessive fine claim under the Eighth Amendment. The order addressed the 

four factors of culpability, relationship between harm and penalty, penalties under similar 

statutes, and the defendant’s ability to pay. As the hearing officer found, there is no 

dispute about culpability. Lawson offered no defense to the County’s evidence at the 

administrative hearing and proffered no evidence in mitigation regarding his ability to 

pay. Lawson has not challenged those findings on appeal. 

Regarding the relationship between the harm and the penalty, the hearing officer 

noted that one of the County’s justifications for the penalty amount was “the degree of 

environmental damage done by illegal cannabis activity.” The order recognized other 

harms listed by the County, including to businesses engaged in lawful cannabis activities, 

to consumers who procure cannabis products that lack state-regulated safeguards, and to 

the County’s costs to enforce its licensing regulations. The order referenced the County’s 

showing (based on an online market report) that the penalties were not excessive given 

the price per pound of cannabis flower sold on the black market, and noted that Lawson 

had not presented any evidence to the contrary. Lastly, the hearing officer addressed 

“[s]imilar statutes” in which courts have rejected excessive fine challenges to “extremely 

large penalties.” 

Lawson has not challenged these findings, which in any event are supported by the 

administrative record, nor has he attempted to distinguish the facts underlying the penalty 

in this case from the authority referenced in the administrative order. Lawson has not 

addressed the legislative authority supporting the administrative hearing officer’s 
23

observations regarding the relationship between the harm and the penalty amount. (See 

R.J. Reynolds, supra, 37 Cal.4th at p. 728.) 

The County’s ordinance expressly identifies mitigation of “damage to the natural 

environment resulting from destructive cannabis cultivation, manufacturing, and 

distribution activities” as one type of harm the commercial cannabis licensing seeks to 

mitigate. (Santa Cruz County Code, § 7.128.010.) The state Legislature similarly 

identified the effects of unregulated cannabis cultivation on the environment as one of 

several justifications for implementing a statewide regulatory structure inclusive of 

compliance with local requirements. (Stats. 2017, ch. 27, § 1, subd. (g).) In arguing that 

the “better guiding principle” to determine whether the County’s penalty was excessive 

should be the amount imposed above $500, Lawson focuses only on the monetary fine 

aspect of the criminal penalty scheme for a single violation and ignores the civil penalty 

scheme set forth in section 26038. Critically, Lawson does not attempt to compare the 

penalty under the County’s ordinance to any potential penalty under section 26038, 

subdivision (a)(1), which authorizes civil penalties of up to three times the amount of the 

state license fee for each violation, per day of operation, for a person engaging in 

commercial cannabis activity without a license as required under the state law.

6

(Id., 

subd. (a)(1).)

Having independently reviewed the administrative record, we agree with the trial 

court that the administrative order “provided a thorough and well-reasoned analysis of the 

6 The County, in its respondent’s brief, provides a comparison to penalty amounts 

provided for under section 26038 by referring to representative cannabis license fees for 

each area of activity (cultivation, distribution, manufacturing) in which Lawson was 

engaged, as published on the Web site of the California Department of Cannabis Control.

We do not consider these penalty amounts in our analysis. Despite the utility of the state 

license fees for comparing potential civil penalties under the state and local cannabis 

commercial licensing schemes, and the fact that the amounts may be an appropriate 

subject of judicial notice (Evid. Code, §§ 452, subd. (h), 459), we decline to rely on 

information that was not before the administrative hearing officer and considered in the 

order subject to the petition on review. 
24

Bajakajian factors.” Lawson has not carried his burden as appellant here to demonstrate 

error in the administrative hearing officer’s civil penalty determination. We conclude the 

penalty imposed by the County was not grossly disproportionate to the gravity of the 

ordinance violations so as to render it excessive under the framework of the Eighth 

Amendment of the United States Constitution.

III. DISPOSITION

The judgment denying the petition for writ of mandate is affirmed. Respondent is 

entitled to recover its reasonable costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
______________________________________

Danner, J.

WE CONCUR:

____________________________________

Bamattre-Manoukian, Acting P.J.

____________________________________

Wilson, J.

H050208

Lawson v. County of Santa Cruz