                                                                               FILED
                           NOT FOR PUBLICATION                                  JUN 13 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


SANTA BARBARA PATIENTS’                         No. 10-57024
COLLECTIVE HEALTH
COOPERATIVE, a California cooperative           D.C. No. 2:10-cv-06534-DDP-RC
corporation,

             Plaintiff-counter-defendant -      MEMORANDUM*
             Appellee,

       v.

CITY OF SANTA BARBARA, a
California municipal corporation,

             Defendant-counter-claimant -
             Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   Dean D. Pregerson, District Judge, Presiding

                       Argued and Submitted May 10, 2012
                              Pasadena, California

Before: D.W. NELSON, FISHER and CHRISTEN, Circuit Judges.

      The City of Santa Barbara appeals the district court’s order granting a

preliminary injunction in favor of Santa Barbara Patients’ Collective Health

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Cooperative (“SBPCHC”), the operator of a medical marijuana dispensary. We

have jurisdiction under 28 U.S.C. § 1292. We affirm in part, but remand for

reconsideration in light of events subsequent to the district court’s order.

      1. The district court did not abuse its discretion in granting the preliminary

injunction. See Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012). The district

court reasonably concluded that SBPCHC could likely succeed in showing that,

under the Original Ordinance, SBPCHC had acquired a vested property right to

operate a marijuana dispensary and that the Revised Ordinance, particularly the

180-day amortization period, effectively revoked SBPCHC’s permit without due

process. See World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186,

1199-1200 (9th Cir. 2004).

      2. During the pendency of this appeal, however, the City passed an

Amended Revised Ordinance, changing the amortization period from 180 days to

four years. Because the Amended Revised Ordinance appears to supersede the

district court’s principal basis for granting the preliminary injunction, we remand

to the district court so it can consider whether SBPCHC, under current

circumstances, continues to make a sufficient showing to warrant continuation of a

preliminary injunction. This inquiry will involve issues of fact and law that are

best addressed by the district court in the first instance, including consideration of

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additional arguments and evidence relevant to changed circumstances as the court

deems appropriate.

      3. Also while this appeal was pending, the California Court of Appeal

decided, and the Supreme Court of California has granted review of, Pack v.

Superior Court, 132 Cal. Rptr. 3d 633 (Ct. App. 2011), rev. granted, 268 P.3d

1063 (2012), holding that certain provisions of a Long Beach ordinance permitting

marijuana dispensaries are preempted by federal law. The parties in Pack appear

to agree that the issues before the Supreme Court of California are:

      1. Whether a municipal ordinance that affirmatively permits and regulates
      medical marijuana collectives is preempted by federal law.

      2. Whether a public entity has the legal authority to enact a total ban on
      medical marijuana collectives and related activities, in light of federal law
      preemption, the Compassionate Use Act, and the Medical Marijuana
      Program Act.

      3. Whether a public entity can authorize and regulate medical marijuana
      collectives pursuant to local land use regulations and zoning codes.

      The City and SBPCHC dispute the potential impact of a decision in Pack on

this case, but the parties agree that federal preemption was not raised before the

district court. We conclude there is some potential that the supreme court’s

decision could either moot some or all of the issues before the district court, or at

least inform the district court’s resolution of them. We leave it to the district court



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to decide in the first instance how the pendency of Pack should affect its

management of this case, including considering whether a stay of proceedings in

whole or in part is warranted. We neither express nor imply an opinion on the

ultimate merits of these issues.

      Costs on appeal to Appellee SBPCHC.

      AFFIRMED in part; REMANDED for further proceedings.




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