Local Ordinances Attack Patients’ Right to Grow
March 17 - As federal DEA pressure subsides in California, opponents of medical marijuana are pushing to impose new and unprecedented restrictions on medical marijuana cultivation through local ordinances of dubious constitutionality.
In Long Beach, a city within LA County, the city council adopted a dispensary ordinance that requires all patient collectives to grow marijuana on their own premises within the city limits. The Los Angeles DA’s office has maintained – falsely – that this is necessary under state law. In fact, state law has no such restrictions; patients from anywhere in the state can join in collective cultivation projects. Although SB 420 restricts primary caregivers to no more than one patient outside their home city or county, this doesn’t apply to collectives, and Cal NORML attorneys argue that it is an unconstitutional restriction on Prop. 215.
The LA DA’s office sought to enact similar restrictions in the city of LA’s recent ordinance, which states that “no collective may provide medical marijuana to any persons other than its members who participate in the collective cultivation of marijuana at or upon the location of that collective.” Critics, including Cal NORML, argue that collectives can legally maintain multiple cultivation locations around the state.
California NORML challenges the practicality of on-site cultivation, given that the average dispensary requires an estimated 8.75 square feet of indoor space for a typical clientele of 500 to 750 patients. At this rate, some 4 acres of grow space would be required to serve the 10,000 patients in the Long Beach area, an amount that might well alarm neighborhood groups.
Long Beach city councilmembers chose to overlook such arguments from medical marijuana proponents, accepting instead the mendacious claims of the LA County DA’s office, whose boss, Steve Cooley, has launched an anti-dispensary crusade while pursuing a political campaign for the Republican nomination for state Attorney General.
The Los Angeles and Long Beach ordinances appear destined for lengthy court challenges. The LA ordinance imposes tight zoning restrictions aimed at cutting the number of the dispensaries in the city from over 500 to just 70, a target that many think will be difficult to enforce. One lawsuit against the ordinance has already been filed by Americans for Safe Access, which argues that the ordinance violates due process because it gives dispensary applicants only seven days to find a legal location, and no maps showing what zones are legal were provided by the city.
Many other localities have proposed dubious anti-cultivation measures recently. Tehama County Supervisors are considering an ordinance that would declare it a public nuisance for anyone cultivate over12 mature or 24 immature plants on parcels of less than 20 acres. The Tehama proposal would ban any cultivation whatsoever within 1,000 ft of a school, which is almost certainly a violation of Prop. 215 patients’ fundamental right to medicine; and require every landlord to register any Prop 215 garden with the city, which violates the 5th amendment right against self-incrimination. It is scheduled to be voted on April 6.
The city of Corning in Tehama County adopted an ordinance that prohibits cultivation outdoors or in a residential structure. Gardens would have to be located in a secure detached structure in the rear yard only, removed ten feet from the property line and with a six foot solid fence and with a mechanical ventilation system and security system approved by a Building Official or the Police Dept.
Cal NORML believes that Corning’s ordinance poses an unconstitutionally burdensome limitation on patients’ right to grow their own medicine under Prop. 215. Cal NORML is interested in hearing from potential plaintiffs wishing to challenge Corning’s ordinance.
Red Bluff, another Tehama town, dropped an even more stringent proposal to ban medical marijuana cultivation entirely, after Cal NORML attorney Bill Panzer warned the city attorney that it was unconstitutional and would precipitate a lawsuit.
Shasta County Supervisors are considering a proposal that would require patients to file a zoning permit for all medical marijuana gardens. Indoor cultivation would be restricted to legally established residences; outdoor grows would be limited to 60 square feet on lots less than an acre, or 240 square feet elsewhere, and would have to be surrounded by six-foot fences.
Redding adopted an ordinance to restrict medical marijuana gardens to a maximum of 100 square feet of canopy or 10% of home or garden area – relatively liberal limits that would suffice for most, but not all, patients.
Two Mendocino County towns, Ukiah and Willits, have ordinances banning outside grows within city limits so as to mitigate the odor of marijuana. So far, no patients have challenged these laws. However, they have filed a lawsuit against a proposed Mendocino County ordinance that classifies any cultivation of 25 plants or more on a single parcel as a public nuisance.
Eureka has an ordinance on the table that would require patients to reside where they cultivate. The language is based on Arcata's ordinance and is intended to prevent homes being turned into "grow houses."
The right of individual patients to cultivate for their own medical needs is fundamental to Prop. 215. However, a stronger case can be made that cities and counties have the right to regulate larger, collective gardens and dispensaries. The right of cities to zone out dispensaries was upheld in a precedent-setting appellate court decision, Claremont v. Kruse, and is the subject of another pending case involving the city of Anaheim.
Patients interested in challenging local restrictions on home cultivation are invited to contact California NORML’s legal committee at email@example.com.