Friday, August 7, 2020
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Court of Appeal:
County Ordinance Restricting Growing of Marijuana Plant Doesn’t Justify Seizure
By a MetNews Staff Writer
The Sixth District Court of Appeal yesterday reversed a judgment of dismissal of an action by a medical marijuana dispensary to regain possession of more than 2,000 cannabis plants seized by Santa Cruz County sheriff’s deputies based on a county ordinance forbidding the growing of more than 99 marijuana plants.
Local governments may impose land use restrictions affecting the cultivation of marijuana, Justice Adrienne M. Grover said in an opinion filed Wednesday, but that authority, she declared, does not render plants grown in violation of an ordinance “contraband,” subject to seizure.
Law enforcement agencies may retain seized property, the jurist recited, “only where the property in question is per se illegal to possess.” Since 1996, under Compassionate Use Act, possession of marijuana for medical purposes has been lawful and in 2003, the California Medical Marijuana Program Act broadened decriminalization, she pointed out.
Grover wrote:
“A valid local ordinance restricting the number of marijuana plants that can be cultivated does not change the status of medical marijuana under state criminal law (nor could it, as any attempt to do so would be pre-empted)…. Possession of medical cannabis, by those qualified according to state law, is not a crime. That necessarily means that marijuana possessed for medical purposes in compliance with state standards is not contraband per se.”
She commented:
“The concept that marijuana is not contraband subject to seizure by law enforcement is relatively new; marijuana (medical or otherwise) for so long was contraband that we may be conditioned to think of it as such. But with medical marijuana now as legal as ‘any prescription drug,’ a local ordinance cannot make it illegal to possess, even while the locality remains free to limit or prohibit commercial dispensing or cultivation.”
The judgment against plaintiff Granny Purps followed the sustaining of demurrers without leave to amend by Santa Cruz Superior Court Judge Paul P. Burdick.
While directing that the trial court, on remand, overrule demurrers to the causes of action aimed at gaining a return of the marijuana plants, the opinion says demurrers must be sustained without leave to amend to causes of action foe damages based on noncompliance with the Government Claims Act.
The case is Granny Purps, Inc. v. County of Santa Cruz, 2020 S.O.S. 3631.
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