Local Restrictions on Personal Cannabis Cultivation Struck Down in Court

November 2, 2018 – San Bernardino County Superior Court Judge David Cohn has issued a ruling striking down parts of a City of Fontana ordinance placing restrictions on residential marijuana growers in the first court case limiting a local jurisdiction’s ability to regulate personal cultivation rights in California under Proposition 64 (AUMA).

The ruling is the result of a lawsuit filed against the city by the Drug Policy Alliance and the ACLU (at the urging of Cal NORML) on behalf of plaintiff Mike Harris, a retired ironworker and registered nurse seeking to cultivate marijuana in his Fontana home to ease his arthritis and pain from past injuries.

“The issue in this case is how far a city can restrict the category of persons who are entitled to grow marijuana plants, and the circumstances under which they may grow the plants, without running afoul of the AUMA’s requirement that the regulations be ‘reasonable.’ The City of Fontana has gone too far,” wrote the judge.

The ruling leaves in place the requirement to obtain a permit for indoor cultivation, but disallows the $411 initial permit fee and the $230 annual renewal fee, instead requiring the city to re-evaluate the cost of permitting based on the required changes to its ordinance.

The ruling eliminates virtually all of the permit requirements plaintiffs objected to. Specifically, it:

• Eliminates all qualifications for the applicant other than that they be at least 21 years old. Gone are the requirements that a person not have certain felony convictions, be live-scanned, and not have any outstanding code enforcement actions or payments owed to the City.

• Eliminates the requirement that there be only one “cultivation area” in a dwelling.

• Eliminates the requirement that a “cultivation area” be used exclusively for growing marijuana.

• Eliminates the prohibition on storing chemicals and explosive gases in the “cultivation area”.

• Eliminates the requirement that the cultivation area be accessible by only one locked door, and that all windows, skylights, etc. in the area be lockable.

• Eliminates the requirement that the cultivation area be accessible only by a permit holder.

• Eliminates the requirement that the residence where cultivation takes place have all plumbing, electrical and other utilities “properly permitted by the City”.

• Eliminates the requirement for a building inspection of the premises prior to issuing a permit.

“The remainder of the Ordinance may remain, although Fontana may wish to draft a less onerous ordinance instead,” the ruling states.

“We hope that this lawsuit serves as an example for other cities that have passed or are considering similar ordinances,” said Joy Haviland, staff attorney at DPA.

Prop. 64 requires local jurisdictions to allow 6-plant marijuana gardens for personal use, but permits them to “reasonably regulate” the gardens. Regulations can include forcing gardens indoors; however locals lose the ability to apply for grants to pay for law enforcement and other services if they ban personal outdoor gardens.

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