HomeMy WebLinkAboutScot CandellLAW OFFICES OF SCOT CAN DELL
TeL: {415) 441-177G
WWW.SFL£=GA LHELP.COtvl
August 22, 2011
Butte County Board of Supervisors
25 County Center Drive
Oroville, CA 959b5
Dear Butte County Supervisors,
4040 C]V]C CENTER DRIVE, SUITE 200
SAN RAFAEL, CA 94903
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~ROVILLE, CAL1FpRNiA
I am an attorney, and our firm had been retained to file a lawsuit against Butte County
over the passage of Butte County Ordinance number 4029, which limits the right of qualified
rnedical patients or their primary caregivers to cultivate medical cannabis for their own personal
use on their own properties in accordance with their medical needs. We believe the ordinance
violates rights established under California State Law by the Compassionate Use Act and the
Medial Marijuana Program Act. Our office completed the complaint and was waiting for the
ordinance to go into effect before filing. As the referendum halted the enforcement of the
ordinance, the complaint was never filed.
On August 9, 2011, the Board of Supervisors voted to put this same ordinance to the
voters in .Tune, 2012, anal estimated the cost of this process would be $50,000. I wanted to take
few minutes to explain why the current ordinance is unconstitutional and will be struck down
even if passed by the voters. I encourage you to discuss these points with County Counsel and
to consider passing an alternative ordinance that strikes an appropriate and legal balance
between community interests and patients' rights.
On November 4, 1996, California voters passed Proposition 215, "the Compassionate
Use Act", since codified at Health & Safety Code, section 11362.5, to "ensure that seriously ill
Californian's have the right to obtain and use marijuana for Iegal purposes." (Health & Safety
Code, § 11362.5 [emphasis added]). The voters, when approving the CUA, knew a core aspect
of the Act was authorizing seriously ill Californians, with the approval of their doctors, to
cultivate medical marijuana for their personal use. (See, Argument in Favor of Proposition 215
~ / ~
.{
["Proposition 215 allows patients to cultivate their own marijuana ...."]; Argument Against
Proposition 215 ["HOME GROWN POT * HAND ROLLED "~'OINTS" * DOES THIS SOUND
LIKE MEDICINE?"]; Rebuttal to Argument Against Proposition 2i5 ["[Proposition 215] .. .
allows marijuana to be grown for a patient's personal use."]; Analysis of Proposition 215 by the
Legislative Analyst ["This measure amends state law~to allow persons to grow or possess
marijuana for medical use when recommended by a physician."].}
The CUA did not, by its own terms, create a system by which qualified patients might
Iegally obtain marijuana. (See People v. Urziceanu (2005) 132 Ca1.App.4th 747, 768769.)
Instead, the CUA envisioned, through excepting qualified patients from criminal sanction for
possession or cultivation of marijuana, that those patients would have the right to grow
marijuana to such an extent as was necessary for their personal therapeutic use. (See Health &
Safety Code, § 11362.5, subd. (d).}
On September 10, 2003, the California Legislature enacted Senate Bi11420, Stats. 2003
c.875, the Medical Marijuana Procedures Act ("MMPA"), to provide that "Qualified patients,
persons with valid identification cards, who associate within the State of California in order
collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the
basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359,
11360, 11366, 11366.5, or 11370." (Health & Safety Code, § 11362.775; cf. Health & Safety
Code, § 11362.7 et seq.) These laws created a shelter against arrest for patients with valid
identification cards, and extended legal protection to patients who wished to cooperatively or
collectively cultivate medical marijuana for personal use. {See Urziceanu, supra, 132
Cal.App.4th at pp. 882-$83.)
The MMPA includes a provision purporting to limit the amount of dried marijuana a
patient might possess and the number of mature and immature marijuana plants a patient might
grow. {Health & Safety Code, § 11362.77.) This provision authorized cities and counties only
to allow qualified patients or their primary caregivers to exceed the Iimits otherwise set by the
legislature. (Health & Safety Code, § 11362.77, subd. {d).) There was no authorization for
cities ar counties to prohibit or limit the number of plants a patient might cultivate for his or her
personal use. The California Supreme Caurt found section 1130'2.77 unconstitutional to the
extent it creates a restraint on criminal defenses available to qualified patients, however the
provision was not struck down. (People v. Kelly (2010) 47 Ca1.4th 1008.)
The MMl'A additionally creates a voluntary registration system for medical marijuana
patients and their primary caregivers. The primary purpose of this section is to create a system
by which counties would "establish and maintain a voluntary program for the issuance of
identification cards to qualified patients." {Health & Safety Code, § 11362.71 [emphasis
added].) The voluntary identification cards allow card holders protection from "arrest for
possession, transportation, delivery, or cultivation of medical marijuana" without "reasonable
cause" to believe that the information contained in the card is false. (I6id. } However, those
patients who choose not to obtain an 'identification card do not lose the protections of the CUA.
{Ibid. )
On May 24, 2011, the Butte County Board of Supervisors {"the Board") approved an
ordinance entitled "An Ordinance of the County of Butte Adding Article T, Entitled `Medical
Marijuana Cultivation,' of Chapter 34A, Entitled `Medical Marijuana Cultivation,' of the Butte
County Code." (Butte County Ordinance, No. 4029.) Ordinance 4029 became effective on Tune
23, 2011.
The claimed authority for Ordinance 4029 was Article XI, section 7 of the California
Constitution, Health and Safety Code, sections 11362.$3 and 11362.768(f}, and Government
Code sectian 25845. {Ordinance 4029, Section 1, 34A-1.) Article XT, section 7 reads that "A
county or city~may make and enforce within its limits all local, police, sanitary, and other
ordinances and regulations not in conflict with general laws." (Cal. Const., Art. XI, sec. 7.)
Health and Safety Code, sectian 11362.83, a provision of the MMPA, states, "Nothing in this
article shall prevent a city or other local governing body from adopting and enforcing laws
consistent with this article." {Health & Safety Code, § 11362.83.} Section 11362.768, which
addresses regulation of medical marijuana collectives and cooperatives, states in subsection {f),
"Nothing in [section 11362.768] shall prohibit a city, county, or city and county from adapting
ordinances or policies that further restrict the location or establishment of a medical marijuana
cooperative, collective, dispensary, operator, establishment, or provider." {Health & Safety
Code, § 11362.768, subd. (f) [emphasis added].) Government Code, section 25845, authorizes
counties to create procedures by which nuisances maybe abated. (Gov't Code, § 25845.)
The County made a legislative finding in Ordinance 4029 that "unregulated cultivation of
marijuana in the unincorporated area of Butte County can adversely affect the health, safety, and
well-being of the County, its residents and environment." {Ordinance 4029, Section 1, 34A-2,
subd. (g).) Civil regulations of marijuana cultivation was necessary to "avoid the risks of
criminal activity, degradation of the natural envirozu~ent, malodorous smells, and indoor
electrical fre hazards that may result from unregulated marijuana cultivation." (Ibid.) It found
that cultivation within 1000 feet of schools, school bus-stops, parks, child care facilities and
other areas in which children congregate, "creates unique risks that the marijuana plants maybe
observed by juveniles, and therefore be especially vulnerable o theft or recreational consumption
by juveniles." (Ordinance 4029, Section 1, 34A-2, subd. (h).) The risks of juvenile involvement
or endangerment from criminal activity was also noted. (Ibid.}
Ordinance 4029 declares the cultivation of marijuana plants "either indoor, outdoors, or
combined on any premises ...unlawful and a public nuisance that may be abated in accozdance
with [Ordinance 4029]" if the number of plants exceed certain limitations. {Ordinance 4029,
Section 1, 34A-4, subd. {a).) If the premises is one-half acre in size or less, no plants may be
cultivated. (Ibid.) If the premises is greater than one-half acres but less than one and one-half
acres in size, no more than six mature and twelve immature plants may be cultivated, or if there
is a combination of mature and immature, no more than six mature plants and no more than
tyvelve total plants maybe cultivated. (Ibid.) If the land is greater than one and one-half acres
but less than twenty acres in size, no more than twelve mature plants or twenty four immature
plants may be cultivated, or if there is a combination of mature and immature plants, no more
than twelve mature plants and no more than twenty four total plants may be cultivated. (Ibid.)
If the land is greater than twenty acres in size but less than eighty acres in size, no more than
twenty four mature plants or forty-eight immature plants may be cultivated, or if there is a
combination of mature and immature, no more than twenty four mature plants and no more than
forty-eight total plants maybe cultivated. (.Ibid.} If the land is greater than eighty acres in size
but less than one hundred and sixty acres in size, no more than thirty-six mature plants or
seventy-two immature plants maybe cultivated, or if there is a combination of mature and
immature, no more than thirty-six mature plants and no moi°e than seventy-two total plants may
be cultivated. (.Ibid.) If the premises is one hundred and sixty acres or greater, no more than
ninety-nine plants, whether mature or immature, may be cultivated. (Ibid.)
These limitations apply "regardless of the number of qualified patients or primary
caregivers residing at the premises or participating directly or indirectly in the cultivation."
(Ordinance 4029, Section 1, 34A-4, subd. (a}.) All those cultivating on a piece of land must be
Butte County residents. (Ibid. )
Ordinance 4029 further requires registration for all those cultivating for personal use.
(Ordinance 4029, Section 1, 34A-S.) Individuals must provide the address at which marijuana is
cultivated, the name and contact information for the individual or individuals owning the land,
the name and address of each qualified patient or primary caregiver participating in the
cultivation "either directly or indirectly," copies of those patients' current valid medical
recommendation or State-issued card, the number of marijuana plants on the premises, anal any
other information the County deerrzs appropriate. (Ibid.}
Additionally, no marijuana may be grown in any amount, "whether grown collectively or
individually," indoors or outdoors, within one thousand feet of a "youth-oriented facility, a
school, a park, or any church or residential treatment facility." (Ordinance 4029, Section 1,
34A-6, § (b}, subd. {1).) Marijuana grown outdoors cannot be grown within one hundred feet of
a residential structure on a separate legal parcel. {Ordinance 4029, Section 1, 34A-b, § (b), subd.
(2).) If the outdoor plants number no more than six mature or twelve immature plants (or twelve
total plants with no more than six mature plants), those plants may be grown. no closer than
thirty feet from a separate residential structure. (Ibid.)
Ordinance 4029 provides that no pexson owning, leasing, occupying or having charge of
possession of a premises, "shall cause, allow, suffer, or permit such premises to be used for the
outdoor or indoor cultivation of marijuana" in violation of Ordinance 4029. (Ordinance 4029,
Section 1, 34A-6, § (b), subd. (3).} Any person not a Iega1 owner of a parcel who is cultivating
on that parcel must submit a notarized letter from the legal owner consenting to cultivation of
marijuana on that parcel. (Ordinance 4029, Section I, 34A-7.)
Any violation of Ordinance 4029 "shall be deemed a public nuisance" and is subject to
enforcement proceedings. (Ordinance 4029, Section 1, 34A-10.) The County may enforce
Ordinance 4029 either through civil action for injunctive relief, enforceable through civil
contempt proceedings, or through the abatement process established by Government Code,
section 25845. (Ordinance 4029, Section 1, 34A-11.) Those remedies, however, are non-
exclusive to any other procedures now in existence or in future existence to abate a nuisance.
(Ordinance 4029, Section 1, 34A-15.)
The Legislature enacted the Medical Marijuana Procedures Act to clarify regulation of
medical marijuana in the State of California. The MMPA was partly codified as Health and
Safety Code, section 11362.77, which created a limit on the number of plants an individual
might personally cultivate for medical use. Section 11362.77 included a provision on municipal
regulation of cultivation, only allowing municipalities to promulgate regulations allowing
qualified patients to exceed those cultivation limits. 1n People v. Kelly, (2010) 47 Ca1.4th 1008,
the Califozz~.ia Supreme Court held that qualified patients had a right to cultivate as many plants
as was necessary for the intended personal therapeutic use. Section 11352.77, however, remains
in effect after Kelly.
The MMPA further created a voluntary registration system for qualif ed patients. This
system was intended to create uniformity throughout the state and is evidence of the
Legislature's intent to fully occupy the f eld of registration of qualified patients.
Thus, in passing the CUA and the MMPA, the voters of the State of California and the
legislature have created a right to personally cultivate marijuana. Ordinance 4029 directly
conflicts with both the CUA and MMPA by attempting to limit, or eliminate, the right of
qualified patients in Butte County to cultivate this necessary medicine on their own personal
property. Additionally Ordinance 4029 creates a mandatory registration system which is
duplicative of, and thus preempted. by, the MNiI'A. As such, Ordinance 4C29 violates both
Article 11, section 7 of the California Constitution and Government Code, section 37100.
k'or these reasons, nothing positive can come from putting Qrdinance 4029 on the ballot,
as it will inevitably be a waste of time and resources regardless of the election's outcome. It
appears to be in the County's best interest consider and alternative Ordinance that would be
approved by both the voters and the Courts.
If you have any questions or if there is any way our office maybe of assistance to you,
please to not hesitate to ask.
Sincerely
Scot Candell