The MENDOCINO COUNTRY Independent
October 1, 2009
HILL SUIT REBUTTED, BACKBURNERED

Jim Hill, Edie Lerman and media. Pebbles Trippet far right. RJ photo September 11, 2009
hillandlerman.jpg
by Richard Johnson
    On September 11, Potter Valley medical marijuana grower Jim Hill and four others filed suit seeking a Superior Court injunction against Chapter 9.31, the county's marijuana nuisance law limiting gardens to 25  plants per parcel. The event was ballyhooed in the media including a one hour courthouse yard press conference covered in a front page Ukiah Daily Journal story and a video on ukiahvalley.tv.
    But by the end of September, county counsel Jeanine Nadel had filed an opposition prepared by her deputy Terry Gross, and plaintiffs attorneys had amended their motion delaying the hearing until next February.
    A committee of the board of supervisors is considering a fundamental rewrite of the ordinance originally passed in February 2008. The new version to be considered by the full board next year would include a conditional permit for coops to cultivate up to 99 plants per parcel issued by the sheriff's department.
    The next meeting of that committee is October 19 at 3pm. in Conference Room C, in the county admin center, 501 Low Gap Road, Ukiah.
    In my opinion, the county's opposition brief to Hill's motion for an injunction provides ample authority to regulate medical marijuana through its constitutional police powers to abate nuisances which threaten public safety, and ample evidence that marijuana cultivation of any kind in residential neighborhoods is an attractive nuisance that poses a serious threat to public safety.
    In addition, the county's legal argument lays out in detail that its marijuana nuisance ordinance (aka Ordinance 4197) does not enter into a field fully occupied by state law, nor does it illegally modify or amend the Compassionate Use Act or the Medical Marijuana Program Act.
    In fact, they argue that it "balances the needs of qualified patients and caregivers against the serious threats of violent crime and other health threats which potentially cause nuisances to those of the surrounding community. This balancing is entirely consistent with the right of qualified individuals to possess whatever amount of medical marijuana they may need, to form cooperatives of any overall size, and spread out growing operations and still retain defense to criminal prosecution."
    Respondents' brief in this action is a direct refutation of those who have been claiming that a combination of medical marijuana statutes, the attorney general's guidelines and the Uriziceanu decision grant general or absolute rights to anyone possessing a medical recommendation or claiming to grow on behalf of such a person to cultivate unlimited amounts of marijuana at any location under any set of circumstances.
    Finally, respondents argue that plaintiffs have failed to meet their burden of proof to get a preliminary injunction because they have not presented evidence they have been or will be irrevocably harmed by the ordinance, nor that they will prevail on the merits at trial.

An Absolute Right?
    Hill's lawyers are the well known criminal defense team of Edie Lerman and David Nick who have recently opened an office in Ukiah.
    At stake in the litigation is
    1) Do state statutes and case law grant absolute rights to medical marijuana patients and those who grow for them regardless of amount or situation?
    2) Or in the alternative  does a county or municipality have authority to regulate the amount and circumstances of medical marijuana cultivation under its civil police powers?
    Nick argues  the county has no authority to limit the amount of medical marijuana a patient can grow or have grown for them in any way because the state has pre-empted medical marijuana regulation in H& S 11362.5 et seq.
    He further argues the Urziceanu decision included a paragraph exempting medical marijuana from local nuisance laws.
    Next, he declares the county has no authority to prevent medical marijuana patients from "organizing" -- read cultivating -- near certain land uses such as churches, schools, bus stops and youth oriented facilities.
    Finally, he states that Chapter 9.31's cultivation limits of 25 plants per legal parcel are inconsistent with the Compassionate Use Act and the Medical Marijuana Program SB 42O because they could under some circumstances limit the amount of medical marijuana a patient or association may cultivate on a single parcel to less than the amounts specified in 11362.77.

A Limited Defense
    But the opposition brief filed by county counsel declares at the outset that California law presumes that local land use, public health and safety regulations are not preempted by state law. In addition, the California Constitution Article XI, section 7 provides counties the authority to enact such laws, and case law has settled that there is a three-pronged test to determine if state law pre-empts local regulations which this ordinance does not meet.
    In addition, she quotes a case in which the California Supreme Court instructs there is a presumption that local regulations in an area traditionally controlled by local government is not pre-empted by state law.  In addition, the CUA expressly states, "Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others." (§11362.5(b)(2))
    Nadel and Gross's opposition goes on to deny that the CUA and the MMP grant an absolute or general right for anyone to cultivate, transport or distribute unlimited amounts of medical marijuana under any chosen circumstance, but only for "seriously ill Californians" to obtain and use it.
    "...not only is there no constitutional right to possess marijuana, there is no constitutional right to cultivate or access it in a manner that deprives a local entity of either local land use or health and safety police powers,." they argue.
    In the contrary, the CUA has always been interpreted as a limited defense in criminal cases, providing that patients and their caregivers are exempted under certain circumstances from criminal prosecution for transportation, possession and cultivation, but not for sale or possession for sale.
    She quotes the case of the City of Claremont v. Darrel Kruse decision holding that state medical marijuana laws did not preclude the city from enforcing zoning and business licensing laws regulating medical marijuana dispensaries and held that the city could order he defendant's dispensary abated as a public nuisance. Fifteen pages of that decision are appended to the opposition brief.
    Attorney Nick recently lost a similar lawsuit in Palm Springs California on behalf of new plaintiffs trying to overturn a local ordinance regulating medical marijuana dispensaries as to number and location.
     He argued, as he does in Hill v. Mendocino County that state law pre-empts marijuana regulation, and the city had no authority to limit the number and zoning location of dispensaries.
    Dismissing the plaintiff's demurrer, the judge disagreed with Nick, finding state medical marijuana laws to be limited in scope, exempting only medical users and their primary caregivers from criminal liability, but not in other respects.  In the view of that court, the protection does not automatically apply to civil litigation about regulating dispensaries.     

Authority for Regulation of and Evidence of Nuisance:
    Chapter 9.31 includes a finding that it is authorized by state Government Code Section 25845 which describes in some detail and is followed precisely in the language of 8.75 and thus 9.31 how counties may enact and enforce nuisance ordinances.
    In her brief, Nadel also points out that Section 7, Article XI of the state constitution reserves to counties broad police power to determine how to best protect the public health, safety, morals and general welfare of its citizens, including the traditional powers of land use and public safety.
    In addition, Nadel has included in her opposition to the Hill suit a sworn declaration by Mendocino County sheriff captain Kurt Smallcomb that he has observed a number of violent crimes associated with marijuana cultivation over the last six years.
    Specifically, Smallcomb stated that marijuana grows in excess of 25 plants are more easily spotted from both the ground and air and attract robberies, burglaries and violent crime impacting not just growers but neighbors as well.
    He further stated that larger grows attract gang activity and that innocent neighbors are vulnerable to armed robbers trespassing through neighboring properties for criminal activities related to larger grows. He pointed to statistics indicating from 25-30 new cases involving violent crime associated with marijuana cultivation since 2001, and added a list of offense report numbers from the sheriff's computer system showing 38 robbery cases and 12 homicide or attempted homicides since 2000..
    In addition, there is a sworn declaration by Mendocino County air pollution control officer Chris Brown that the air quality management district receives numerous complaints of "strong, objectionable" marijuana odor in residential neighborhoods in unincorporated areas of the county, and that he has personally observed some of them. He attached a list of nearly 100 such complaint numbers and dates from 2002 to the present, mostly in the period from September to November.
    The most severe nuisance to the community from cultivation of even small outdoor marijuana gardens is from armed thieves who are attracted by the odor.
    This considerable evidence answers those who have been demanding justification for regulating medical marijuana through a nuisance ordinance because they are offended that their chosen medicine is thus characterized.

Interpreting Urziceanu
    While Nick characterizes Chapter 9.31 as wishful thinking on the part of the county in that it improperly seeks to modify state law, Nadel and Gross specifically addressed his interpretation of the Urziceanu decision, stating the court was merely enumerating the exemptions in state law from criminal sanctions only, not civil police powers.
    "Plaintiffs mistakenly rely on the Urziceanu decision for the proposition that under the MMP, section 11362.775 there is a right to form a collective to furnish medical marijuana to qualified patients that divests counties of their constitutional police powers to determine how and where collective cultivation occurs. Not so," she argues, pointing out that the reference to nuisance law was to the "drug house: abatement" statute which is not exclusive but an additional remedy to local civil nuisance abatement powers.
    The above section of the Medical Marijuana Program Act does not provide an exemption from civil nuisance abatement, but only exempts persons growing collectively from "state criminal sanctions" for cultivation and possession on that sole basis.
    The last statute listed -- 11570 (to 11578) -- specifically authorizes the civil abatement of crack houses and other properties on which habitual criminal drug activity takes place. It provides for an eviction procedure which can be initiated by any citizen or peace officer. Its criminal provision applies a contempt of court citation with a fine and or jail for persons who defy such evictions or abatement orders.
    Nick's interpretation is a misinterpretation of the court's "shorthand" reference to that code section, argues the county.
    Thus it would appear it is the plaintiffs who are reading what they desire into the law in their action to overturn Chapter 9.31.

A Politically Strategic Lawsuit
    The Health and Safety Committee of the BOS  rewrite of Chapter 9.31 is now titled Medical Marijuana Regulation, and includes a highly-conditioned sheriff's  permit for coops growing between 25 and 99 plants per parcel. The committee, consisting of supervisors Smith and McCowen, intends to submit this new ordinance to the full board by the first of next year.
    It is my interpretation of plaintiff's amended motion that they intended to delay a hearing on their badly flawed action all winter, and thus politically chill this process.
    It is perfectly consistent with the longstanding opposition to development of the new ordinance by a vocal minority of cultivators who claim to speak for patients: Pebbles Trippet, Tom Davenport, Beth Bosk and Shiela Dawn Tracy.
    What they have been hinting at in the committee meetings is explicitly stated in the Hill lawsuit: they resist any government attempt to regulate their industry, just as have farmers, loggers and fishermen.
    I urge responsible growers to recognize that in order to cloak themselves in the mantle of legality, they must  open their operations to public accountability and accept  reasonable limits and conditions enforced by local authorities such as those included in 9.31.
    The coop language in  the new ordinance is de facto, not de jure decriminalization. While Trippet has called for a "stand alone" coop regulation, the county has no legal authority to grant an exemption from state prohibitions on cannabis cultivation, possession, transportation or sale. It can only exempt those who qualify from its own ordinances.
    Those organizations claiming to represent patients are way out of position in attempting to delay, derail and defeat new county law that would permit cultivation of up to 99 medical marijuana plants per parcel under local nuisance ordinance. º