Jun 272013
 

Just when you think you’ve seen about everything, a citizen panel in rural Tulare County has stated the obvious: California’s crazy quilt of do-it-yourself city and county cannabis cultivation laws isn’t working.

In fact, the 2012-13 Tulare County grand jury report concluded, “Without a [medical marijuana] permit requirement and an [medical marijuana] cultivation ordinance, it is impossible for the cities to keep track of legal MM cultivations.” The report calls on Tulare County cities without ordinances to pass one, and for the others to implement cultivation permits. However, providing city-issued permits for medical cannabis could violate federal law, according to many legal experts and California appellate court rulings.

“Any additional onerous requirements on patients, like a registration process for cultivation, especially if the cultivation is for personal use, would amount to an unfair and unlawful restriction on a voter-approved initiative,” Americans for Safe Access spokesman Kris Hermes told the Fresno Bee.

The relevant portion of the grand jury report appears below. Cities aren’t legally bound to follow their recommendations, but they must file a written response. Bud’s quickie analysis of the report appears below.

MEDICAL MARIJUANA — CITY ORDINANCES

BACKGROUND

In Nov. 1996, voters passed Prop 215, and it was codified as California Health and Safety Code §11362.5. Proposition 215 (Prop 215), the California Compassionate Use Act, allows a patient suffering from certain conditions, as well as his primary caregiver, the right to lawfully possess and grow marijuana if approved by a California physician. Approved conditions include cancer, glaucoma, migraines, chronic pain, arthritis, and AIDS.

Included in Prop 215 is a provision that protects physicians from punishment relating to the recommendation of marijuana use to patients for medical purposes. Also included is protection from prosecution for a patient or the patient’s primary caregiver for possession and/or cultivation of medical marijuana. To clear up certain implementation issues surrounding Prop 215 and formulate a voluntary system to protect patients from arrest, Senate Bill (SB) #420 was signed into law on October 13, 2003, became effective on January 1, 2004 and was codified. California Health and Safety Code §11362.83 allows cities or other local governing boards to adopt and enforce ordinances that are consistent with Prop 215 and SB 420.

On October 2, 2011, a second SB 420 was signed into law and codified as Health and Safety Code §11357.5 Prior laws made possession of marijuana for sale a felony. This new law now states a person who sells, dispenses, distributes or offers to sell, dispense, or distribute marijuana is guilty of a misdemeanor punishable by county jail imprisonment up to six (6) months, or a fine not to exceed one thousand dollars ($1,000), or both fine and imprisonment.

REASON FOR INVESTIGATION

Due to controversies between Federal Regulations and California Health and Safety Codes, the 2012-2013 Tulare County Grand Jury decided to investigate and report on Medical Marijuana Cultivation (farming) within the county’s incorporated cities that are as follows:

  • Dinuba
  • Exeter
  • Farmersville
  • Lindsay
  • Porterville
  • Tulare
  • Visalia
  • Woodlake
PROCEDURES FOLLOWED

1. Reviewed relevant documentation
2. Interviewed relevant witnesses

FACTS

The following information has been provided by the cities listed.

DINUBA
  • Does have an ordinance for Medical Marijuana (MM)
  • Does not have a permit process
  • Allows persons with a medical card to cultivate MM
  • Persons in any residential zone may cultivate six (6) mature plants or twelve (12) immature plants or, if recommended by a physician, up to twenty-four (24) plants, whether mature or immature for MM.
  • The number of persons cultivating MM within the city is unknown.
EXETER
  • Does not have an ordinance allowing MM cultivation
  • Does not have a permit process
  • Does not know of any MM cultivation within its city
  • Refers all MM related issues that are in violation of local, state, or federal regulation to its Zoning Department.
FARMERSVILLE
  • Has an ordinance allowing MM cultivation
  • Has a permit application process
  • Does not permit more than eighteen (18) plants
LINDSAY
  • Has an ordinance for MM cultivation
  • Does not have a permit process
  • Is aware of one MM cultivation within its city limits and found it to be in compliance with the recommended issue
  • Prohibits the use of any land within city limits from being used in any manner that is a violation of
    state, federal or local regulations per Municipal Code §18.01.090.
PORTERVILLE
  • Does not have an ordinance for MM cultivation
  • Does not have a permit process
  • Reports approximately seventy-five (75) residences cultivating or farming MM within its city limits
  • Most of these residences have between ten (10) and twenty (20) plants. However there are some with as many as ninety-nine (99) plants.
TULARE
  • Does not have an ordinance for MM cultivation
  • Does not have a permit process
  • Is not aware of any such cultivation or farms within its city limits
  • Zoning ordinances would need to be amended to allow the growing of such crops and would be restricted to agriculture-industrial zoning districts.
VISALIA
  • Has an ordinance for MM cultivation
  • Does not have a permit process
  • Has identified locations where marijuana is being cultivated under the auspice of MM cultivation.
  • Approximately one hundred (100) locations were identified as being in violation of the city ordinance. These violations included cultivation outside an enclosed structure, exceeding the one hundred (100) square footage allowance or both structure and footage allowances.
  • Notices of violation were sent to those out of compliance with the city ordinance and approximately eighty (80) have corrected the violations.
WOODLAKE
  • Has an ordinance for MM cultivation
  • Has a permit process
  • Allows the cultivation of up to twelve (12) plants
  • There are sixteen (16) identified MM cultivations; seven (7) have been issued notices of violations.
FINDINGS/CONCLUSIONS

1. Farmersville and Woodlake are the only cities to have both an ordinance for MM cultivation and a permit requirement.
2. Dinuba and Visalia are the only cities to have an ordinance only for MM cultivation.
3. The cities of Exeter, Lindsay and Porterville do not have a MM ordinance.
4. The cities of Dinuba, Exeter, Porterville, and Visalia do not have a MM permit requirement.
5. Dinuba is unaware of the number of MM cultivations within its city. Without this knowledge, it is impossible to track those who are cultivating marijuana legally from those who are not.
6. Regardless of whether a city has an ordinance for MM cultivations, California Health and Safety Code §11362.5, allows patients and their caregivers to possess and grow Medical Marijuana.
7. Without a MM permit requirement and an MM cultivation ordinance, it is impossible for the cities to keep track of legal MM cultivations.

RECOMMENDATIONS

1. All of the incorporated cities within the county need a permit requirement and an ordinance covering MM cultivation.
2. All of the cities need to establish a uniform MM cultivation ordinance.

RESPONSES REQUIRED

Dinuba City Council
Exeter City Council
Farmerville City Council
Lindsay City Council
Porterville City Council
Tulare City Council
Visalia City Council
Woodlake City Council

BUD’S QUICKIE ANALYSIS

We start with the plaudits: A civilian grand jury is paying attention to medical cannabis cultivation. Not only that, they’re calling for consistency in city regulations and providing suggestions for positive change. That’s crazy stuff. That just doesn’t happen these days, not in an era of heightened federal and local law enforcement against all types of cannabis growers. To have this breath of fresh air and common sense blow in from rural Tulare County … well, suffice to say I’m pleasantly surprised.

Having said that, the grand jury report gets a big incomplete for failing to consider Tulare County’s outdoor cultivation moratorium and, as a result, failing to invite Tulare County to the grand jury’s marijuana garden party. Local governments are required to formally respond to grand jury reports; it would have been appropriate to get input about cannabis cultivation in the unincorporated areas of Tulare County, if only to give county staff a kick in the pants.

The report also rests on a couple of assumptions that don’t sit well with informed cannabis patients and growers. An ordinance that required dispensaries to obtain permits from the city of Long Beach violated federal law, an appelate court ruled in a closely watched case that was appealed to the California Supreme Court. Although that case became moot when Long Beach passed a new ordinance without the permit requirements, federal pre-emption remains a big concern for any local government that wishes to issue permits to dispensaries or growers. On that point, the grand jury failed to do its legal homework, and so its advice tends to add to the confusion instead of resolving it.

The other bone of contention involves the assumption that cities must keep track of all cultivation sites within their borders. Says who? The local police department? Code enforcement? It may be considered a matter of convenience to map gardens that are compliant with local ordinances, but even patient ID cards are voluntary under state law. Maintaining a database of cannabis grow sites means maintaining a database of cannabis cultivators, or multiple databases, and that prospect raises all kinds of alarm bells for state-compliant growers. Take your pick of scary scenarios, from an accidental data dump of patient records to the federal subpoena for cannabis cultivation records in Humboldt County. We may excuse the grand jury members for not considering such legal and privacy issues from the patients’ perspective, but we cannot give local government the same leeway when developing new regulations for civil enforcement.

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