Filed 4/17/23 Lawson v. Co unty of Santa Cruz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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

. H0 50208 ( Santa Cruz County Super. Ct. No. 21CV02161 )

A ppellant 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 ( C ounty)
after county law enforcement cited Lawson for the unlicensed cultivation, manufacturing,
and distribution of commercial cannabis. An administrativ e hearing officer found that Lawson’s commercial cannabis activity violated Santa Cruz County Code
section 7.128.050, which address es 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 Eight h Amendment ’s
restriction on ex cessive fines.
We affirm the judgment.2 I. FACTS AND PROCEDURAL BACKGROUND 1
In October 2020 , the County, through its s heriff’s o ffice and accompanied by personnel from the C ounty’s cannabis compliance unit and the California Department of Fish and Wildlife, executed a search warrant at Lawson’s leased p roperty in Soquel. The
search re vealed quantities of cannabis in various locations (totaling 32.26 pounds of flower, 32.40 pounds o f biomass, and 1650 grams of concentrate), manufacturing equipment for butane hash oil , labels, containers, glass tubes, and equipment recognized by the C ounty’s cannabis licensing manager as consistent with the manufacture and distribution of cannabis pro ducts.
Lawson was cited for unlicensed commercial manufactur e , distribution, and cultivation of cannabis, in violation of Santa Cruz County Code section 7.128.050 , subdivisions ( A ), ( B ), and ( C )

. The administrative citation fine d Lawson $184,370

. The

am ount 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 r equested an administrative hearing

. At the administrative hearing, held on May 6, 2021, Lawson , who was represented by counsel , c hallenged 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 C ounty’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 voter s 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 , c h

. 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 penalt y for violati ng the C ounty 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 ) a n d
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 )

. La wson also argued that the amount of the fine was so disproportionate to the limits under state law that its imposition violate d the excessive fines clause of the Eighth Amendment to the United
States Constitution

. The County responded that its ordinance f or 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 r elevant 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
re levant 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. Co de, §§ 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 f rom seeking civil penalties in
an administrative proceeding , nor limits the fine that may be imposed. The order also concluded, a pplying the “ Bajakajian factors ” (based on U nited States v. Bajakajian (1998) 524 U.S. 321 ( Bajakajian ) ), that the fine did no t 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 fac tor under the C ounty’s ordinance and reduced the amount of the fine by $10,000.
The final administrative o rder found that Lawson had used his property for cultivating, manufacturing, and distributing cannabis commercially, without a license, in
violat ion of Santa Cruz County Code section 7.128.0 50 , subdivisions (A)

– (C) , and after making findings on the issues raised in the administrativ e appeal, ordered L awson 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 t he 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 2603 8 and Health and Safety Code5

sections 11358, 11359, and 11360

. Lawson also reiterated his contention that the fine
was excessive under the Eighth Amendment.
T he County opposed Lawson’s petition . It disputed the asserted grounds for preemption , citing a 2021 appellate court decision (n ow pending review before the California Supreme Court ) , wh ich 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 Ma r

. 16, 2022, S272850 ( Wheeler ) .) The County further
asserted that the ordinances Lawson violated were neither duplicat ive 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 a lso
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 M ay 31, 2022, t he 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 err ed 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 d o 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 Eight h 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 ).) T he 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 wh ether 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 sup ported by the findings, or the findings are not supported by the evidence.” ( Ibid

. ) Whether the record supports t he agency’s findings and factual basis for its decisio n 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 act ions, 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 admini strative 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 C o. v. City of Los7

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, 137 1 .) Similarly, where the underlying facts are not in disput e , we review de novo whethe r the fine imposed by the County is excessive under the Eight h Amendment

. ( Ghirardo , supra , 8 Cal.4th at p. 801; Bajakajian , supra , 524 U.S. at p. 33 6 , 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, t he County mai ntains 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 penal ty schemes makes it unclear which fine limit he claims has preemptive effect in this matter , and, in any event, Lawson fail s 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 n egative impacts and8

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 val id local and s tate license, to “ manufacture cannabis products ” ( id

. , subd. (B)) without a valid local and s tate license, and to “ distribute cannabis or cannabis products ” ( id

. , subd. (C)) without a valid local and s tate license. The ordinance
defines in r elevant 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 license s 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 f urther 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 administra tive 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 e ach violation of the provisions of the chapter constitute s a separate violation, deems each violation “unlawful, a public nuisance, and an immediate threat to public health, safety and welfare,” and9

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 o ffice of the d istrict a ttorne y may also pursue remedies and actions available
under s tate 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 Cod e 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 MAUCR SA

. 4 The purpose of M AUCRSA “ 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 , c h

. 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 , c h

. 27, § 1.) One purpose of MAUCRSA was to consolidat e 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 l ocal requirements .” (Stats. 2017, c h . 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. ” (§ 2600 0 , subd s . (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 [admini stration 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 e ngaging in commercial cannabis activity in violation of this division.” ( Id

. , subd. ( g ).) Furthermore, it expressly disavows any preemptive effect: “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. ” ( Id. , subd. (h)(1).) It also specifies “[f] ailure to comply with the requirement of a local ordinance regulating co mmercial 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 Lawso n 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 imprisonme nt , ” of a11

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, admini sters, or gives away, or
offers to

. . . sell, furnish, administer, or give away,

. . . any cannabis ” ( i d. , § 11 3 60 , subd. (a)(2) ). Having summarized the relevant ordinances and statutes at issue, we turn to Lawson’s preemption claim.

2. Preemption Principle s 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 )

. O ur state Constitution authorizes cities and
counties to enact and enforce local ordinances which ar e “not in conflict” with the state ’s “general laws

. ” (Cal. Const., art. XI, § 7

. ) O therwise valid local legislation that conflicts
with state law is v oid. ( O ’ Connell , at p. 1065; Inland Empire , at p. 743.)
“ ‘ “ A conflict exists if the local legislati on ‘ “ 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

c ontradicto ry “ when it is inimical to or cannot be reconciled with state law

. ” ( Id

. at12

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 beco me 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 s tate C onstitution, 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 be tween 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 legaliz ation, regulation, and control of nonmedical marijuana and marijuana products for use by adults 21 years and old er , th ereby 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 ballot13

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 o r stated purpose o f MAUCRSA, which was in effect when the County cited Lawson under the local ordinances

. Th at purpose is to establish a “comprehensive system” to control and r egulate 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 t hat prevents access to minors, protects public safety, public health and the environment, as well as maintaining local control

. . . .” (Stats. 2017 , c h

. 27, § 1, subd. (g), italics added .) The Legislature thus deemed it “necessary to provide for a singl e 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 , c h

. 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, and14

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).)
MA UCRSA 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 reiterate d 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 st ate 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), a mended by Stats. 2021, c h . 530 (A ssem

. B ill No. 1138), § 1, eff. Jan. 1, 2022 .) Amend ments 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, c h

. 56 (A ssem

. B ill No. 195), § 2, eff. June 30, 2022.) The conduct described in section 26038, subdivision (a), is a person engaging in unlicense d commercial cannabis activity

. We reject the suggestion that MAUCRSA, or the voters through passage of the AUMA, manifested an express intent t o occupy the field or strictly limit civil penalties
for unlicensed commercial cannabis activity. Lawson’s rel iance 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 specif ic 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 conduc t. ( § § 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
govern ing the imposition, enforcement, collection, and administrative review of the administrative fines or pena lties ] .)
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 cove ring 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 count y 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 ” attempt ing to prohibit conduct proscribed or perm itted 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. I n certain respects ,16

the County ordinance addresses a broader range of commercial activities than the s tate criminal provisions. The County ordinance violations include packaging and storing of cannabis (under the definition of “cultivation”) (Santa Cruz C ounty 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 an y 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 purp ose. 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 cannab is 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, commerci al 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 in clude 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 ite m” so as to bring the conduct within the criminal provisions of the Health & Saf

. Code]; People v. Busch (2010) 187 Cal.App.4th17

150, 158 [same]; see also CALCRIM Nos. 2370 [standard jury instruction on cannabis planting/cultivating/processing in violation of Health & Saf. Code, § 11358 ], 23 50 [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 state s applicable to the County ordinance and the s tate 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.
I n O’Connell , the California Supreme Court held that the state’s Uniform Controlled Substances Act (UCSA) preempted a provision of Stockton ’s m unicipal c ode which provided for the forfeiture o f vehicles used to acquire controlled substances or solicit prostitution

. ( O ’ Connell , supra , 41 Cal.4th at p p

. 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 forfeitu re) is so thorough and detailed as to manifest the Legislature ’ s intent to preclude local regulation. ” ( I d

. at p. 1071. ) Relevant to the O’Connell court’s determination was the UCSA’s specific treatment of forfeiture . The UCSA limit s 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 amount s, whereas the municipal ordinance allow ed 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

. ( I

bid

. , italics omitted. ) The Supreme Court inte rpreted “t he Legislature ’ s comprehensive enactment of penalties for crimes involving controlled substances, but18

exclusion from that scheme of any provision for vehicle forfeiture for simple possessory drug offenses ” as manifesting “ a clear intent to reserv e that severe penalty for very serious drug crimes , ” thus preempting the ordinance’s incongruous forfeiture penalty

. ( Id

. at p. 1072.)
I n 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, t he 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

. a t 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 th is 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 unlawfu l for retailers, without obtaining a li cense, to sell paraphernalia designed for use with illegal drug s, and made any violation a misdemeanor carrying criminal penalt ies 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 deliver y , possess ion , or transfer of paraphernalia , by punishment not exceeding a $1,000 fine and/or one year imprisonment. ( Id

. a t pp. 1036

– 1037. ) The appellate court held that the laws were duplicative and19

contradictory, and further that the state law prohibiting distribution of drug paraphernalia was sufficiently comprehensive to exclude the local r egulation . ( Id

. at p. 1039.) It
reasoned that a lthough the state law did not expressly regulate licensing of drug paraphernalia retailers , the Legislature’s intent in enacting the law was to “t otally 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 i s 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 d iscussed 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 th at l ocal government s retain regulatory authority ove r 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 o f local cannabis businesses. We conclude the County ordinance and penalty provisions a re valid

. C. Eighth Amendment Limit on Excessive Fines Lawson contends that the fine imposed by the County vi olates the Eight h Amendment’s limit on excessive fines under the standard articulated by the United States Supreme Court in Bajakajian and applied to the s tates 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 deci de whether the County abuse d its discretion by failing t o 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.5 th at
p. 81 4 ; 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.4 th 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.4 th at p. 801; Bajakajian , supra , 524 U.S. at p. 33 6 , 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 t he United States Supreme Court and California Supreme Court have provided guidance in determining whether a fine is unconstitutional ly excessive

. The Eighth Amendment to the United States Constitution states : “Excessive bail shall not be required, nor excessive fi nes imposed, nor cruel and unusual punishments inflicted.” (U.S. Const., 8th Am en d.) 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 t hey are “grossly disproportional to the gravity of a defendant ’ s offense

. ” ( Bajakajian , supra , 524 U.S. at p. 3 3 4 .) According to Bajakajian , “[ t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportional ity: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” ( I bi d

. ) 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 l eading United States Supreme Court authority on the Eighth Amendment ’ s prohibition against excessive
fines

. Our Supreme Court also exp lained th e application of t he Eighth Amendment ’s prohibition against excessive fines to the s tates through the d ue p rocess c lause 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, 68 7 .) 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 similar22

statutes; and (4) the defendant ’ s ability to pay. ( R.J. Reynolds , at p. 728 , citing Bajakajian , supra , 524 U.S. at pp. 3 37

– 338.) Lawson has offered no support fo r 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 th e 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 fi ndings 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 enforc e its licensing regulations . T he 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 th e s e finding s , 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’s23

observations regar ding the relationship between the harm and the penalty amount. ( See R.J. Reynolds , supra , 37 Cal.4th at p. 728.)
T he 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 th e environment as one of several justifications for implement ing a statewide regulatory structure inclusive of compliance with local requirements. ( Stats. 2017 , c h

. 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 ignor es 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 thr ee times the amount of the
state l icense 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 admini strative 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 W eb site o f the California Department of Cannabis Control

. We do not consider these penalty amounts in our analysis. Despite the u tility of the state license fees for compar ing potential civil penalties under the state and local cannabis commercial licensing schem es , 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 pet ition 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 disproportiona te 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 t o recover its reasonable costs on appeal . (Cal. Rules of Court, rule 8.278(a)(2).)______________________________________ D anner, J.

WE CONCUR:

____________________________________ Bamattre

- Manoukian , Acting P. J.

____________________________________ Wilson , J.

H050208 Lawson v. County of Santa Cruz