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.
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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.”

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