Pubdate: Fri, 16 Sep 2011
Source: Bakersfield Californian, The (CA)
Copyright: 2011 The Bakersfield Californian
Author: James Burger, Californian Staff Writer 


Kern County Superior Court Judge David Lampe played his cards close to
the vest Friday as lawyers for medical marijuana collectives and the
county of Kern tried to sway him to their side of the debate over the
county's 12-plant limit on medical pot cultivation.

He didn't issue a tentative ruling or speak about which way he planned
to rule.

Lampe heard arguments from Chief Deputy County Counsel Mark Nations
and medical marijuana collective attorney Phil Ganong and told them
his ruling on a preliminary injunction would be issued later.

If Lampe sides with Ganong, the county ordinance could be suspended
until the full court case is argued and decided. If Lampe sides with
Nations, the county ordinance could stay in place while the trial goes

But both Nations and Ganong acknowledged that no matter who wins,
Lampe's decision on the injunction is likely to be appealed
immediately to a higher court.

Friday's court discussion wandered into whether the two state laws
that deal with medical marijuana -- the Compassionate Use Act and the
Medical Marijuana Program Act -- make marijuana legal property and
whether Kern County sheriff's deputies have a right to use a felony
warrant to seize and destroy marijuana plants when the only rule a
grower broke is a county land use ordinance.

Ganong said most people with land use violations such as junk cars or
unsafe structures are cited and allowed a chance to clean up the mess.

Lampe acknowledged the arguments but seemed much more interested in
what he saw as the core issue of the case -- whether state law trumps
the county ordinance making it a crime to cultivate more than 12
medical marijuana plants on a single parcel of land.

In his quest for understanding, Lampe created a hypothetical marijuana
grower he called Mr. Smith.

Mr. Smith, Lampe imagined, is growing 99 plants on his single parcel
of property, and is in full compliance with the two state medical
marijuana laws.

How, Lampe asked Nations, would Kern County law enforcement handle his

Nations said the county would receive complaints, obtain a warrant,
search the property and seize the plants.

Nations argued that the county is authorized by the MMPA and CUA to
create tougher regulations on medical marijuana operations.

But Ganong argued that the MMPA allows counties to regulate only
medical marijuana collectives and cooperatives -- not the cultivation
of the plant.

Nations fired back that collectives are synonymous with growing
marijuana, so the regulation powers apply.

"That's what collectives do -- they cultivate," he

Lampe chimed in with a problem in Nations' argument.

"But that doesn't apply to my hypothetical," Lampe said. "Mr. Smith is
growing for himself."

After the hearing, Nations and Deputy County Counsel Devin Brown
pointed out that many of the arguments heard Friday were the same as
those heard in a previous hearing where Lampe refused to grant Ganong
a restraining order to stop raids on medical marijuana properties.

It comes down, Nations said, to whether state law "occupies the field"
- -- preempting county laws making cannabis cultivation illegal.

Ganong said he has no indication of how Lampe might rule in this

But he said the judge is obviously trying to approach the problem as a
good legal scholar and jurist.

In other marijuana news, Kern County elections workers continued to
verify voter signatures filed by medical marijuana advocates to block
another county ordinance that outlaws collectives and cooperatives and
makes the sale of edible medical marijuana products illegal.

Opponents of the ordinance need 17,350 valid signatures to block the
law and, potentially, send it to an election by voters.

They submitted 26,326 signatures to elections officials on Sept. 8.
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MAP posted-by: Richard R Smith Jr.