Jan 082014

The ink isn’t dry on the Fresno County cannabis ban that was passed Tuesday, so it’s a little early to claim 20/20 hindsight about what it all means. It doesn’t take effect until Feb. 6, and the Fresno County Planning Commission still has a cameo role to play before the curtain falls. (Anyone have a rubber stamp handy?)

Even so, some common themes that can be observed in the run-up to the ban, and in other cities and counties that have restricted dispensaries and/or outdoor cultivation. The following list is not meant to be comprehensive; feel free to add your own thoughts in the comments below.

Large-scale cannabis cultivation is out of control

The sheer number and size of cannabis gardens in Fresno County is astonishing, and that’s just accepting the sheriff’s estimate of more than 500 cannabis cultivation sites at face value. Only 113 of those were “eradicated” by assorted means in 2013, though details weren’t provided as to the actual enforcement methods. While it’s an exaggeration to claim, as sheriff’s officials do, that all of those large-scale gardens are criminal by default, it’s likely that many/most of the largest gardens are operated with criminal intent and/or with designs to pocket tax-free proceeds outside the scope of state law. Even so, the Sheriff’s Office is limited in what it can do.

Here’s where things go off the logic track: The problems that crop up with large-scale cultivation (left unregulated through county inaction, by the way) simply aren’t found with small-scale, personal cultivation. It’s one thing when thugs, “cartel” growers and others of their ilk set up camp for the summer in a neighborhood near you, causing nuisance complaints that run the gamut from shots fired and home invasions to overdrafting of well water. It’s quite another thing when you set reasonable plant limits in the 6- to 12-plant range, maybe add some fencing and setbacks in residential areas, allowing many patients to be self-sufficient. Allow larger gardens on agricultural parcels and industrial-manufacturing zoning outside the urban centers, and those collectives could serve cannabis patients who can’t grow their own. That’s just as the state Legislature and the voters intended, but such reasonable cannabis regulations were rejected by the Board of Supervisors. Go figure.

The 99-plant recommendation is the root of many evils

Do you remember back in the good old days, when the Legislature set a 6-plant threshold for personal cultivation? That was 10 long years ago, so you might be excused for forgetting, but there is a regulatory framework set forth in Senate Bill 420 both for individual patients and for collectives and dispensaries. That simple concept of small-scale, affordable, personal cultivation remains critically important for cannabis patients today, not to mention local law enforcement.

The widespread use of 99-plant recommendations, or “grower’s letters,” is one of the most blatant and obvious contributors to the spread of large-scale gardens. In the absence of clear-cut state or local regulations, it serves as the de facto equivalent of what should properly be called a permitted collective garden. There is a back story here with the 2010 Kelly court ruling, which has been widely — almost universally — misinterpreted to mean there are no growing limits at all under state law. With that barrier seemingly out of the way for state-compliant growers, demand rose for 99-plant recommendations designed to max production while avoiding mandatory federal sentences.

We won’t belabor the point of just how many plants are needed for a particular patient or product, or the lack of state permits for growers, distributors and processors. (Compare and contrast: Washington cannabis licensing regulations.) Suffice to say that when you hang dozens of 99-plant recs on a given parcel of land, the potential for crime and nuisance conditions rises dramatically. For more rational (and legally defensible) guidance, refer to the California NORML Patients Guide and California legal information from Americans for Safe Access.

Law enforcement is the biggest roadblock to reform

While the Fresno County Sheriff’s Office has clearly observed the widespread use and abuse of growers’ letters during field investigations of large-scale gardens, it hasn’t lifted a finger to do anything about it at the state or local level. The California State Sheriffs’ Association and the California Police Chiefs Association routinely oppose medical cannabis reform bills; their latest victim was Assembly Bill 604, which stalled in 2013. The Medical Cannabis Regulation and Control Act would have created the Division of Medical Cannabis Regulation and Enforcement within the Department of Alcoholic Beverage Control.

At the local level, Sheriff Margaret Mims has taken a zero-tolerance approach for years, stating time and again that cannabis remains illegal under federal law. That may be so, but that one-trick pony is looking pretty lame these days. A law is only as good as its enforcement, and the simple truth is that neither the feds nor the Sheriff’s Office have enough funding or staffing to keep up with all the illegal and quasi-legal gardens in a large county of more than 6,000 square miles. But if the sheriff wants a new ordinance to hit cannabis growers small and large, she’s going to get one from the Board of Supervisors, which made opposing “the decriminalization of marijuana crimes” part of its legislative platform.

Beyond the heavy fines and nifty new enforcement powers provided by the Fresno County cannabis ban, Sheriff Mims also has $307,000 in county funds, an agreement with Tulare County for joint marijuana enforcement, and the lion’s share of $136,000 in federal grant money awarded via the Central Valley High Intensity Drug Trafficking Area program. It’s shaping up to be a long, hot summer for cannabis growers.

  2 Responses to “Lessons learned from the Fresno County cannabis ban”

  1. Regulations such as these are esentially “takings” of private property and requires by law due compensation. The Govenor of California back in 1989 issued an executive order: D-78-89 which requires agencies to view their codes/enforcement in light of these concerns. Justice Oliver Wendell Holmes in 1922 established doctrine for the Court in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), that “[t]he general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Id., at 415.

  2. It only make sense if for personal use…6 to 12 plants. Why, why, why 99 plants!!! Marijuana can be planted up to 3 times per year. Any body, including law enforcement, knows that 99 plants will be sold somewhere illegally. Some families have multiple licenses and can plant hundreds of plants.

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