                                                                        FILED
                                                                    NOVEMBER 1, 2016
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

CITY OF CLARKSTON, a Washington               )
municipal corporation,                        )         No. 33682-4-111
                                              )
                     Respondent,              )
                                              )
       v.                                     )
                                              )         UNPUBLISHED OPINION
VALLE DEL RIO, LLC, A Washington              )
Limited Liability Corporation, d/b/a          )
Greenfield Company; MATT                      )
PLEMMONS, individually and as a               )
member of Valle Del Rio, LLC; and             )
Aaron Tatum, individually and as a            )
member of Valle Del Rio, LLC,                 )
                                              )
                     Petitioners.             )

       FEARING, C.J. - The City of Clarkston sued Valle Del Rio, LLC, to enforce

Ordinance 1532 that prohibits recreational marijuana production, processing, or place of

retail sale within Clarkston. The superior court granted Clarkston a preliminary

injunction enforcing the ordinance and barring Valle Del Rio from operating a

recreational marijuana retail outlet until resolution of the suit. After Valle Del Rio

appealed the injunction, Clarkston repealed Ordinance 1532 and now allows the

operation of marijuana retail stores within city limits. Despite the mootness of this
No. 33682-4-111
Clarkston v. Valle Del Rio


appeal, the parties request that we address the merits of their dispute. Because the parties

ask us to review an order granting a preliminary injunction and the trial court never fully

addressed the merits of the dispute after a factual hearing, we decline to address the

merits of the appeal and follow the prevailing rule of dismissing moot appeals.

                                          FACTS

       On November 6, 2012, Washington voters approved Initiative 502, which

legalized the licensed production and sale of marijuana. On November 24, 2014, the City

of Clarkston adopted Ordinance 1532 that declares: "no recreational marijuana

production, processing or place of retail sale shall be permitted within this City limits in

any zone, and no entity or person shall be issued a business license for any recreational

marijuana business." Clerk's Papers (CP) at 9.

       On April 2, 2015, Matt Plemmons signed a lease for retail space in Clarkston and

spent $20,000 on improvements in order to meet state licensure requirements for a

marijuana retail store. On April 29, 2015, Plemmons and Aaron Tatum, owners of Valle

Del Rio, LLC, applied for a business license with Clarkston for the "[ r]etail sales of

paraphernalia for use with tobacco and cannabis products." CP at 104. Clarkston issued

Valle Del Rio a business license on May 5, 2015. On June 29, 2015, an undercover law

enforcement officer purchased marijuana from Valle Del Rio within Clarkston limits.




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Clarkston v. Valle Del Rio


                                       PROCEDURE

       On July 1, 2015, the City of Clarkston sued Valle Del Rio. The city requested a

declaratory judgment regarding the validity of Ordinance 1532 and injunctive relief

enjoining Valle Del Rio from continuing the retail sale of marijuana. The following day,

the trial court granted a temporary restraining order restraining Valle Del Rio from the

retail sale or distribution of marijuana within the city of Clarkston. On August 5, the trial

court conducted a hearing on show cause to compel Valle Del Rio to show why the

temporary restraining order should not remain in effect during the pendency of the action.

After the hearing, the trial court issued a preliminary injunction that extended the

restraints of the temporary restraining order.

       Valle Del Rio sought discretionary review, from this court, of the preliminary

injunction. Our court commissioner ruled that Valle Del Rio is entitled to review as a

matter of right because the injunction altered the status quo when it barred the company

from its ongoing business operations. In addition to briefing by the parties, this court

granted the State of Washington leave to file an amicus brief.

       On January 14, 2016, the City of Clarkston repealed Ordinance 1532, with the

repeal taking effect on January 19. Valle Del Rio now conducts business as a retail

recreational marijuana outlet within the City of Clarkston. Upon news that the city

repealed Ordinance 1532, we asked the parties to address whether the appeal is moot.

The parties agree the appeal is moot but ask us to render a decision anyway.

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No. 33682-4-III
Clarkston v. Valle Del Rio


                                  LAW AND ANALYSIS

       We must first determine whether to review the merits of this appeal. After the

filing of the appeal, the City of Clarkston revoked the ordinance it sought to enforce by

this suit. The parties no longer have a pending dispute. Since Clarkston no longer seeks

to preclude Valle Del Rio from conducting business, we can provide no useful relief for

the company.

       A case is moot "when it involves only abstract propositions or questions, the

substantial questions in the trial court no longer exist, or a court can no longer provide

effective relief." Spokane Research & Def Fund v. City ofSpokane, 155 Wn.2d 89, 99,

117 P.3d 1117 (2005); State v. Slattum, 173 Wn. App. 640,647,295 P.3d 788 (2013).

Generally, this court may not consider an appeal if the issue presented is moot. In re

Cross, 99 Wn.2d 373,377,662 P.2d 828 (1983); In re Det. ofR.R., 77 Wn. App. 795,

799, 895 P.2d 1 (1995).

       This court will consider a moot issue if it involves matters of continuing and

substantial public interest. Bavandv. OneWest Bank, FSB, 176 Wn. App. 475,510,309

P.3d 636 (2013). The criteria to be considered in determining whether a sufficient public

interest is involved are: (1) the public or private nature of the question presented, (2) the

desirability of an authoritative determination which will provide future guidance to public

officers, and (3) the likelihood that the question will recur. In re Cross, 99 Wn.2d at 377;

Sorenson v. City ofBellingham, 80 Wn.2d 547,558,496 P.2d 512 (1972). Washington

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No. 33682-4-111
Clarkston v. Valle Del Rio


courts have not addressed whether the dispute must fulfill all three factors before a court

resolves a moot issue.

       The parties argue that our review of this appeal would fulfill all three factors. We

agree that the appeal fulfills two of the factors. The case involves an issue of public

importance, not just one of private interest. The appeal entails the enforcement of a city

ordinance that other cities have adopted or are considering to adopt. Many entrepreneurs

seek to open retail marijuana stores, and cities face the question of whether to permit the

sale. Division II recently entertained an appeal with the identical issue, but the parties

voluntarily dismissed the appeal before the issuance of an opinion.

       We recognize the allure of an authoritative ruling on whether a city may, by

zoning ordinance, preclude marijuana sales throughout the city limits. Nevertheless, we

decline to address the merits of the appeal because of the status at which the case comes

before us. We are asked to review the validity of a preliminary injunction, not a final

decision of the superior court after a full hearing. The rules behind the issuance of a

preliminary injunction and principles behind our review of the injunction render any

decision questionable as to its solidity.

       The party who seeks relief by temporary injunction must show (1) it has a clear

legal or equitable right, (2) it has a well-grounded fear of immediate invasion of that

right, and (3) the acts complained of are either resulting in or will result in actual and

substantial injury to it. Tyler Pipe Indus., Inc. v. Dep 't ofRevenue, 96 Wn.2d 785, 792,

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No. 33682-4-111
Clarkston v. Valle Del Rio


638 P.2d 1213 (1982). More importantly, at a preliminary injunction hearing, the

plaintiff need not prove, and the trial court does not reach or resolve, the merits of the

issues underlying the three requirements for permanent injunctive relief. Tyler Pipe

Indus., Inc. v. Dep 't ofRevenue, 96 Wn.2d at 792-93. Instead, the trial court considers

only the likelihood that the plaintiff will ultimately prevail at a trial on the merits. Tyler

Pipe Indus., Inc. v. Dep 't of Revenue, 96 Wn.2d at 793. An order granting a preliminary

injunction is not a final determination on the merits of the case. League of Women Voters

v. King County Records, Elections & Licensing Servs. Div., 133 Wn. App. 374, 385, 135

P.3d 985 (2006).

       We review an order granting a preliminary injunction for abuse of discretion.

Rabon v. City of Seattle, 135 Wn.2d 278, 284, 957 P.2d 261 (1998). A trial court abuses

its discretion only when its decision is manifestly unreasonable or is based on untenable

grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       If we affirmed the superior court's issuance of a preliminary injunction, we would

merely be confirming a tentative ruling about the merits. Ifwe affirmed the trial court,

we would effectively enshrine the trial court's ruling as the law, on which the entire state

of Washington may rely, despite the trial court's ruling only addressing the probability of

success. We would also render a decision without necessarily having a full factual

record. These circumstances do not herald a decision being respected as stare decisis for

other disputes involving the enforcement of a city ordinance precluding the sale and

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No. 33682-4-III
Clarkston v. Valle Del Rio


distribution of marijuana.

                                      CONCLUSION

       We dismiss the appeal as moot and deny either party costs on appeal.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                   ~                 ~-
                                                                     1
                                             Fearing,C~

WE CONCUR:




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