Jan 262014

Faced with a new growing ban, Fresno County cannabis patients may soon find themselves in court as criminal defendants, but MMJ advocates are urging a more proactive approach. A civil lawsuit is being planned to challenge the Fresno County ordinance, but the strategy requires support from local growers to succeed.

The lawsuit has been on the table since the Fresno County growing ban was passed by the Board of Supervisors on Jan. 7, but local activists chose to focus their initial efforts on a referendum petition that would temporarily block enforcement. As the referendum campaign hasn’t gained much traction, the only other way to stop enforcement this year is by a lawsuit that seeks a temporary restraining order, among other legal remedies.

Although the legal process isn’t cheap, it’s cheaper than running a political campaign. Political observers believe the Fresno County referendum could have succeeded easily, but only with $40,000 to $50,000 for paid signature-gatherers, advertising and other expenses. Even if the referendum had resulted in the ordinance being placed on the ballot, however, there’s no assurance that voters would have rejected the cannabis ban. A ballot initiative to override the ban would carry the same high costs to gather signatures, and an equally cloudy outlook in a county dominated by conservative Republican voters.

A lawsuit is also filled with uncertainty, but the issues and venue are quite different. Fresno County says the growing ban is consistent with Proposition 215 and Senate Bill 420; the county counsel’s office advised supervisors that the ban is legally “defensible.” The county is pinning its hopes on a California Supreme Court ruling on dispensary bans, along with an appellate court ruling that says growing can be banned too. That case involved the city of Live Oak in Sutter County; Fresno County is the first California county to ban all growing.

But medical marijuana advocates see gaping holes in the county’s legal theories. Running a dispensary is not the same as growing your own plants for personal use, and the relevant statutes and case law aren’t the same, either. With support from California NORML, cannabis attorney Joe Elford is petitioning the California Supreme Court to review the Live Oak ruling, and many of the legal arguments he invokes could be applied in Fresno County. Mr. Elford and other attorneys have described the type of “ideal” plaintiffs who would be needed to challenge the Fresno County ordinance:

  • Reside in unincorporated Fresno County.
  • Legal status as “qualified patient” and/or “primary caregiver,” as defined by Prop. 215 and SB 420.
  • Grows six (6) mature plants or fewer for personal use, in accordance with Health and Safety Code Sec. 11362.77. For couples, families and other multi-grower households, no more than twelve (12) mature plants per parcel.
  • Supportive physician who can verify Prop. 215 cannabis recommendation(s) in court, if needed.

While the legal arguments themselves are lengthy and complex, the basic argument is that SB 420 contains a 6-plant “threshold” that acts as a baseline with clear legislative intent. The specific language is found in H&S 11362.77(c): “Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a).” (emphasis added). In other words, the 6-plant limit acts as a floor, not a ceiling, and there is no statutory language that authorizes cities and counties to prohibit ALL growing.

Compare and contrast with the language in SB 420 that allows local government to regulate the “establishment” of medical cannabis dispensaries. In the landmark Riverside ruling, the California Supreme Court decided that such language showed legislative intent to allow for both dispensary regulations and dispensary bans. There is no similar language in SB 420 that discusses the “establishment” of personal cultivation sites. If it seems like we’re mincing words here, that’s exactly what lawyers and judges do for a living.

At this point, we’re only gauging interest from potential litigants. The more growers we can get on board, the stronger the case will be — and the more costs can be shared. We are hoping to assemble a top-notch legal team that includes Mr. Elford and local counsel. If you would like to contribute to the legal effort, or want information about being a possible plaintiff, please contact Fresno Cannabis.

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