Metropolitan News-Enterprise


Friday, November 29, 2013


Page 1


C.A. Upholds Ordinance Barring Marijuana Cultivation




A city ordinance banning all cultivation of marijuana within city limits has been upheld by the Third District Court of Appeal.

The court Tuesday affirmed a Sutter Superior Court judge’s ruling in favor of the City of Live Oak. The justices rejected claims that the ordinance is preempted by state medical marijuana laws, and said the plaintiffs failed to properly develop claims that the ordinance violates due process and equal protection rights.

The rural city of 8,600 was one of the first municipalities in California to address the issue of medical marijuana cultivation when the council there unanimously passed the ordinance in 2011. The council cited the potential for property damage and increased crime, the potential creation of a nuisance in the form of noxious odors, the inability of the state laws to prevent recreational use of marijuana under the guise of medical treatment, and the city’s desire to comply with federal law banning possession and cultivation of the drug.

The plaintiffs, identifying themselves as medical marijuana patients, caregivers, and supporters, filed suit shortly after the law was passed. They argued that the ordinance was inconsistent with Proposition 215 and the Medical Marijuana Program, that they had a “constitutionally-protected right” to use marijuana for medical purposes, and that there was no rational basis for the ordinance.

The city demurred on grounds that there is no constitutional right to cultivate marijuana, and that the city’s stated bases for its enactment were rational. Judge Perry Parker agreed and sustained the demurrer.

Justice Elena Duarte, writing for the Court of Appeal, agreed with the trial judge. She cited City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, upholding a citywide ban on the operation of medical marijuana dispensaries, and said the reasoning of that case extends to a ban on cultivation.

In Inland Empire, Justice Marvin Baxter, writing for a unanimous court, said that neither the Proposition 215—the 1996 initiative known as the Compassionate Use Act and permitting use of the drug on recommendation of a physician—nor the MMP enacted eight years later preempts local land use laws.

“While some counties and cities might consider themselves well-suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens,” Baxter wrote.

Duarte emphasized, as the high court did earlier this year, the limited nature of Proposition 215. It creates a defense to prosecution under either of two Health and Safety Code sections—one dealing with possession of marijuana and the other with cultivation—if the defendant is a medical marijuana user or the “primary caregiver” for such a person.

The MMP establishes a system by which qualified users and caregivers may obtain identification cards, and extends to those users and caregivers immunity from prosecution under additional sections of the code involving sale, possession, transportation, and storage of marijuana.

Duarte wrote:

“Because…there is no right—and certainly no constitutional right—to cultivate medical marijuana, the premise of each cause of action in plaintiffs’ second amended complaint fails.”

The justice went on to say that the plaintiffs’ due process and equal protection arguments—including a claim that they were not allowed to present their objections before the city council—could not be considered because they failed to provide analysis or citation to authority.

The case is Maral v. City of Live Oak, C071822.


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