Nov 212011

Fresno County supervisors may have reaffirmed support for the county’s medical marijuana restrictions this week, but the new rules are still not a sure thing.

A lawsuit filed by attorney and medical marijuana patient Bill McPike contends that the county has no business regulating the drug. Hence, the suit claims, the county ordinance shouldn’t stand, Kurtis Alexander reports in the Fresno Bee.

McPike’s argument is similar to one pitched successfully in the city of Long Beach: that because marijuana is a federally controlled substance, meaning the federal government considers it illegal, the county can’t try to control it. Last month, a state appeals court threw out Long Beach’s medical marijuana law on those grounds.

McPike alleges that Fresno County similarly wades into an area that’s off-limits to local regulation. The county ordinance, for example, requires a business license from growers, a sure sign of trying to take charge, he explained.

“It’s a criminal violation of the Controlled Substances Act because they’re trying to regulate where the growing takes place and setting up conditions,” he said.

County attorneys did not return a phone call to comment on the lawsuit.

McPike isn’t necessarily a supporter of the federal government’s marijuana prohibition. But his case leverages the federal law to try to take down what he sees as over-restrictive county regulation.

The county ordinance bans storefront marijuana dispensaries in unincorporated areas and allows cultivation only indoors at a handful of industrial sites.

Many in the medical marijuana community don’t agree with McPike’s legal reasoning.

“Attorneys will use whatever tool they have in their power,” said Dale Gieringer, director of the pro-medical marijuana group California NORML, who called McPike’s argument “paradoxical.”

“We take issue with the whole federal pre-emption,” he said.

Gieringer’s group opposed the court decision to toss Long Beach’s ordinance because of federal law, and the group supports the city in its appeal.

In Fresno County, supervisors this week revisited the county’s medical marijuana ordinance, which took effect in September. A county-commissioned citizens group proposed loosening the law, but supervisors said no, opting to keep the current restrictions in place.

McPike’s suit against the county and Board of Supervisors, with Supervisor Susan Anderson exempted, was filed in Fresno County Superior Court on Oct. 31.

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