February 6 – The 3rd District Court of Appeals has ruled in favor of Tehama county on a challenge to their medical marijuana cultivation ordinance.
“This isn’t the end of the battle,” said CalNORML director Dale Gieringer. “There appear to be other legal options to ensure that patients are not precluded from their access to medicine.”
Because the court interpreted the case as a “facial” challenge, it did not look at whether or not the ordinance affected the plaintiffs individually. Further proceedings could make an “as applied” challenge, in which a patient, caregiver, collective or cooperative could argue their ability to cultivate medical cannabis is infringed upon by the ordinance.
Plaintiff Jason Browne expressed disappointment that the stories of the patients affected were lost in the fray. He hopes a class action case could be brought against the county for damages by those patients. In his own case, he lives with 3-4 other patients who cannot grow their allowable 6-12 plants each, since on his parcel only 12 total plants can be grown under Tehama’s rules.
“It effectively bans collective cultivation, unless you have 160 acres of land,” Browne said. In addition, the setback limitations make it impossible for many parcel owners to grow at all. The county has failed to provide maps of zoned-out regions, Browne said, making it difficult for most to know whether or not whether their gardens are legal.
The case did address the specific regulations in Tehama, only the county’s ability to enact cultivation regulations in general. Potential criminal sanctions under the ordinance remain challengeable. The case was argued pursuant to nuisance issues, but under Tehama’s county code, nuisances can also be prosecuted criminally.