El Dorado County Protects Medical Cannabis Cultivation Rights for 2020

UPDATE May 5, 2020 – The El Dorado County Board of Supervisors voted today to approve an ordinance that limits cannabis cultivation to six plants per parcel, but exempts for 2020 existing personal medical gardens that have been planted under the old ordinance allowing 200, 400 or 600 square feet, depending on parcel size. The ordinance was passed as an urgency and takes effect immediately.

The last-minute amendment exempting medical gardens is in effect through December 1, 2020 and came after members of the El Dorado American Alliance for Medical Cannabis  contacted Cal NORML, and we contacted attorney Joe Elford. Elford reached out to the county counsel’s office in El Dorado, making them aware of a case he won in Lake County giving “vested rights” to existing gardens.

Attorney Dale Shafer spoke (virtually) at the BOS meeting, suggesting that the ad hoc committee on cannabis cultivation be re-convened to monitor enforcement activities this year and find a way to protect patients’ rights going forward. This was seconded by several other callers, and by Supervisors Novasel and Hidah.

April 17, 2020 – Cal NORML received notice that El Dorado County is considering a proposed cannabis cultivation ordinance at its meeting on Tuesday, April 21 at 9 AM that seeks to change the county’s existing medical cannabis cultivation rules, and instead limit all cannabis cultivation to the six plants per parcel required for in Prop. 64 (AUMA). The proposed ordinance will also allow the county to require registration for six-plant gardens, and impose fines of $1000/plant/day or more for violating the ordinance (after an abatement period).

The current El Dorado ordinance was years in the making, and allows for 200 square feet of cultivated cannabis per patient, limiting the number of patients by parcel size. The planning commission approved the new ordinance last week after hearing from county counsel that her interpretation was that AUMA required all unlicensed gardens to be six plants or fewer.

This is part of a trend of cities and counties wrongfully (or willfully?) interpreting AUMA as requiring all gardens to be limited to six plants per parcel, and scrapping their medical cannabis cultivation ordinances in the wake of AUMA. In fact, although Prop. 64 requires cities and counties to allow the cultivation of six plants per parcel, its stated purpose is not to interfere with patients’ rights under the Compassionate Use Act.

Cal NORML legal director Bill Panzer and executive director Dale Gieringer sent a letter to the El Dorado BOS which states, in part:

AUMA added Health & Safety Code §11362.1(a)(3) which affirmatively states it is lawful for a person 21 and older to cultivate up to six plants. Nothing in the section states it is illegal to grow in excess of six plants. 

In addition, AUMA added Health & Safety Code §11362.45, which states as follows:
Nothing in section 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict, or preempt:
(i) Laws pertaining to the Compassionate Use Act of 1996 [Prop. 215, which legalized the use and cultivation of medical marijuana in California].

H&S §11362.5 creates an exemption to §11358 [making cannabis cultivation illegal] for a valid patient to cultivate a number of plants reasonably related to current medical need. See People v. Kelly, 47 Cal.4th 1008, 1049 (2010).

Six plants is inadequate for many medical patients who are peacefully growing their own medicine, especially if more than one patient is living at a property. AUMA also allows a primary caregiver to grow for up to five patients without being licensed.

AUMA’s stated purpose was to expand on the rights of adults to use and cultivate cannabis, and not to impinge on patients’ rights to cultivate an adequate supply of medical cannabis for their own use. There is no need to use Prop. 64/AUMA as a reason to undo the ordinance currently in place in El Dorado County, or any other city or county in California.

Cal NORML would like to hear from patients in cities and counties who have been affected by local ordinances, or have pending ordinances, that interfere with patients’ cultivation rights.

El Dorado residents can take action by writing a letter to the Board of Supervisors and participating (virtually) in Tuesday morning’s meeting.

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