Court ruling hits ‘criminalization’ element of Fresno County growing ban

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Dec 032015

The dismissal of a legal challenge to Fresno County’s ban on growing medical cannabis has been overturned by the Fifth District Court of Appeal.

Tuesday’s 32-page ruling rejected several arguments made by cannabis advocate Diana Kirby, who filed suit after Fresno County’s medical cannabis cultivation ban was passed in 2014. But the three-judge panel still sent the case back to Fresno County Superior Court for further proceedings, saying Kirby could challenge the “criminalization” clause of the county ban.

…We conclude that the provision in the ordinance that classifies the cultivation of medical marijuana as a misdemeanor is preempted by California’s extensive statutory scheme addressing crimes, defenses and immunities relating to marijuana. Among other things, the attempt to criminalize possession and cultivation is not consistent with the obligation [Health and Safety Code] section 11362.71, subdivision (e) imposes on local officials not to arrest certain persons possessing or cultivating marijuana. Therefore, Kirby has stated a narrow cause of action challenging the validity of the criminalization provision. We therefore reverse the judgment of dismissal.”

Right-click to download the ruling as a PDF.
Right-click to download as a Word document.

Ordinance 14-001 declares cannabis cultivation to be a public nuisance and a misdemeanor. The nuanced court ruling said violations could still be charged as a misdemeanor, but only after growers were given fair notice to abate the public nuisance and failed to do so. The growing ban was updated this year with the passage of Ordinance 15-003. Most enforcement involves citations, plant removal and heavy fines, though some growers are still charged criminally under state statutes.

Attorneys for Kirby with the Bay Area law firm of Henry G. Wykowski & Associates applauded the court’s finding that Fresno’s ordinance was “an overly broad attack” on the rights of medical marijuana patients, Courthouse News Service reported.

“Importantly, the court determined that cultivation of medical marijuana in California could in no way be deemed a criminal act,” the firm said in a statement. “As for the remainder of the court’s decision, we are evaluating our client’s options to further rectify the invidious effects of this ill-conceived ordinance.”

Ellen Komp, deputy director of California NORML, offered this response to the appellate ruling.

“This ought to invalidate any local ordinance that makes it a crime to grow or distribute marijuana despite state law. Also encouraging are the affirmations made by the court that Congress does not have the authority to compel state or local officers to enforce federal regulatory programs.”

“As we know, however, local jurisdictions and Fresno in particular are nonetheless sanctioning medical marijuana cultivation through cruel civil penalties, notwithstanding Prop. 215’s stated intent to exclude bona fide patients from ‘criminal prosecution or sanction.’” Komp said. “I see no citation, absent medical marijuana cases, for the court’s assertion that it was necessary for the state to specifically state that it intended to preclude local interference with state law. Thus it seems the ‘drug war exemption to the Constitution’ as defined in Dan Baum’s book Smoke and Mirrors is alive and well.”

While the Fifth District panel upheld the county growing ban, it said a misdemeanor could only be charged if a grower was given fair notice to remove the plants but refused to do so. The court also noted the “ambiguity” of the Compassionate Use Act and Senate Bill 420, Fresno Cannabis Association president Michael Green said.

“Cannabis patients are often treated like criminals in Fresno County,” Green said. “This ruling makes clear that the county can’t threaten patients and growers with arrest and prosecution while enforcing a civil zoning ordinance. We’re very grateful to Diana Kirby and her attorneys for taking on this important appeal.”

Sep 152015

The California Legislature passed a weighty package of medical cannabis bills Friday, which Gov. Brown is expected to sign into law. For better or worse, the Medical Marijuana Regulatory and Safety Act (MMRSA) will fundamentally change how medical cannabis is grown and sold in California. The core of the MMRSA is contained within two bills ‐ Assembly Bill 266 and Senate Bill 643 ‐ while a third bill, AB 243, addresses environmental and funding issues. [read more …]

UFCW bid to unionize cannabis reaches state Capitol

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Sep 072015

Dan Rush, a former union organizer for United Food and Commercial Workers Local 5, was recently named in a federal arrest warrant that alleges he engaged in bad-faith negotiations with cannabis dispensary owners while acting in his capacity as a union official. (Affidavit.) Rush is also accused of holding a private financial interest in a medical cannabis company seeking a dispensary permit in Oakland in 2010. Dan Rush Filing Rush is a prominent figure in [read more …]

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Cannabis water rules get Fresno hearing Thursday

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Aug 172015
Cannabis water rules get Fresno hearing Thursday

A workshop on proposed cannabis water rules is scheduled in Fresno on Thursday. The workshop begins at 1 p.m. the Fresno office of the Central Valley Regional Water Quality Control Board. (Event link, map.) The new rules will require large-scale growers to obtain a permit, or “water discharge requirement,” showing compliance with state and local regulations. The rules are designed to address environmental impacts for reported problems that include water diversions and sediment discharges in [read more …]

Fresno County judge dismisses $99K cannabis fine

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Jun 172015

Fresno County acted improperly when it imposed a $99,000 fine on a medical cannabis grower, a judge has ruled. Xiong Thao was cited for growing 99 cannabis plants in March 2014, the Fresno Bee reported, even though he had pulled up and removed the plants before the citation was issued by the Fresno County Sheriff’s Office. Fresno County Superior Court Judge Dale Ikeda said that language in the ordinance allows 15 days for removal of [read more …]

Cannabis water rules set to hit Central Valley

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Jun 112015

Water regulations aimed at cannabis farmers in the Emerald Triangle could soon find their way to the Central Valley. Cris Carrigan, director of the State Water Board’s Office of Enforcement, described the agency’s “Cannabis Cultivation Enforcement Initiative” at a January meeting of the North Coast Regional Water Quality Control Board in Santa Rosa. The Regional Water Board is set to adopt an expansive set of regulations in August as an outgrowth of a pilot program [read more …]