Appeals court upholds Tehama County pot ordinance
The Tehama County Board of Supervisors approved the medical marijuana cultivation zoning ordinance in April 2010, declaring it a public nuisance to grow marijuana anywhere within 1,000 feet of a school, school bus stop, church, park or youth-oriented facility and regulates where and how much medical marijuana can be grown on specifics amounts of acreage.
The county ordinance states no more than 12 mature or 24 immature marijuana plants can be grown in an area 20 acres or less, and if both mature and immature plants are growing there shall be no more than 24 total.
In an area greater than 20 acres but less than 160 acres, no more than 30 mature and 60 immature plants, with no more than 60 total at one time can be grown, the ordinance states, and in an area 160 acres or greater no more than 99 plants, whether mature or immature.
The ordinance requires outdoor gardens be surrounded by an opaque fence at least six feet high and located 100 feet or more from the property boundaries; and requires every patient garden to be registered with the county health services agency.
Anyone cultivating marijuana is required to register the premises with the Tehama County Health Service Agency, disclosing the name of each owner or lessee of the premises and of each qualified patient or primary caregiver participating in the cultivation, a copy of a current valid medical marijuana recommendation or State-issued medical marijuana card for each qualified patient, and the number of marijuana plants cultivated on the property. A fee for registration may be established.
If the person cultivating marijuana is not the owner of the premises, the ordinance requires a notarized letter of consent from the owner.
— Corning Observer
A lawsuit filed against Tehama County and its marijuana cultivation ordinance has been dismissed by the 3rd District Court of Appeal.
The lawsuit was filed in Tehama County Superior Court on June 7, 2010 by J. David Nick and Editte Lerman on behalf of 12 clients. It claimed the county's ordinance makes it legally impossible for the plaintiffs to exercise their Proposition 215 right to cultivate medical marijuana for themselves.
Tehama County Superior Court Judge Richard Scheuler ruled against the lawsuit in January 2011.
In his ruling, the judge said the court "finds as a matter of law that the state medical marijuana law does not pre-empt the field of county zoning," and the county's marijuana ordinance is not pre-empted by any state law nor does it violate or conflict with any state law.
On Tuesday, the Appellate Court's three-justice panel affirmed Scheuler's ruling in a 22 page opinion written by Justice Elena Duarte.
"In recent years, there has been considerable litigation over the regulation, and in some cases the outright ban, of medical marijuana dispensaries," Duarte wrote. "This case, which comes from a rural county, involves the county's attempt to regulate the cultivation of medical marijuana rather than its distribution."
According to Scheuler, the ordinance "reveals what appears to be a standard zoning ordinance through which the county seeks to protect the health safety of the community."
In their appeal, the petitioners contend the "ordinance is unconstitutional because it impermissibly amends the Compassionate Use Act and conflicts with the Medical Marijuana Program by imposing restrictions, and in some cases a ban, on the right to cultivate marijuana for medical purposes."
According to Duarte, "the premise of the petitioners' argument is flawed."
"Nothing in the ordinance bans the cultivation of medical marijuana outright. Petitioners raise a facial challenge to the ordinance and have failed to plead that its provisions ban cultivation of medical marijuana in all or most circumstances," Duarte said.
In his ruling, Scheuler stated, "All freedoms may be limited."
The Court of Appeals also agreed with Scheuler's argument that the ordinance does not restrict or modify the limited criminal defense offered by medical marijuana laws.
Scheuler ruled the county's creating the "potential for zoning enforcement as to medical marijuana is not the same as criminalizing it," and it clearly "does not prohibit medical marijuana, but equally clearly it does seek to govern location and manner," through zoning regulations.
The Appeal Courts ruling states the 2003 Medical Marijuana Program provides that it does not "prevent a city or other local governing body from adopting or enforcing ... laws consistent with this article."
Duarte wrote, "The fundamental flaw in petitioners' argument is their misplaced view that the CUA (Compassionate Use Act) somehow creates or grants unrestricted rights. Petitioners suggest the CUA grants every qualified patient 'the right to cultivate their marijuana for medical use within the sanctity of their home.' Similarly, the petition alleged state law 'permits the cultivation of marijuana plants at any privately owned residence or location.' But the CUA does not create any such right; it only provides a limited defense to certain crimes, 'not a constitutional right to obtain marijuana.'"
The justice went on to state that it is by no means clear that the CUA commands that counties permit the cultivation of marijuana for medicinal purpose.
She wrote, "We express no opinion as to whether a local ban on cultivating medical marijuana is pre-empted by state law. The ordinance is clearly not a ban.
"Simply put, the ordinance does not prohibit the cultivation of medical marijuana by qualified patients. It merely regulates and restricts locations of grows and amounts that may be grown on particular parcels."