Pubdate: Thu, 07 Feb 2013
Source: Record Searchlight (Redding, CA)
Copyright: 2013 Record Searchlight
Author: Janet O'Neill


A medical marijuana cultivation ordinance adopted by Tehama County 
supervisors three years ago was upheld by the 3rd District Court of 
Appeal on Wednesday.

The published decision sets precedent statewide, Tehama County 
Counsel Arthur Wylene said.

"We are obviously very pleased with the ruling," Wylene said. "The 
court upheld the county's ordinance in its entirety, including all of 
the provisions that have been challenged by the plaintiffs."

Shortly after its adoption in April 2010, Jason Browne and a group of 
patients sued, arguing the ordinance was unconstitutional and 
conflicted with the voter-approved Compassionate Use Act of 1996 and 
the Medical Marijuana Program, passed in 2003 in part to clarify the 
original legislation.

Superior Court Judge Richard Scheuler dismissed the case in 2011, 
triggering the appeal.

Attorney J. David Nick, who represented the patients, did not return 
a phone call or answer an email Wednesday, nor could co-counsel E.D. 
Lerman be reached for comment.

The ordinance restricts the number of plants allowed based on parcel 
size. It also requires a 1,000-foot buffer between gardens and school 
bus stops, schools, child care centers or youth-oriented facilities.

In addition, patients must erect a 6-foot-high fence around their 
plots and register with the county Health Services Agency. The law is 
complaint-driven, with violators issued a notice to abate the 
nuisance or face the cost of having county officials tear out the plants.

"This is the first appellate court ruling that has directly opined on 
cultivation regulations," said Oakland attorney Robert Raich, a 
medical cannabis legal expert who serves on CalNORML's legal 
committee. "In that respect it is a precedent the other courts rely 
upon. That said, there are still other issues that have yet to be decided."

The court considered the case a "facial" challenge - one that 
challenges the entire ordinance in all circumstances, Raich said. 
That doesn't preclude current or future litigants from making an "as 
applied" challenge, in which an individual could argue elements of 
the ordinance restrict his or her ability to cultivate, he said.

Raich raised another point.

"The issue was argued and raised only as respect to the nuisance 
provisions of the ordinance," he said. "It was not argued that people 
who violate the ordinance could also be subject to criminal 
sanctions. Those issues could be raised by future litigants and get 
different results."

Asked whether other counties had similar ordinances on the books, 
Raich replied, "There are a number of them and I think we'll see more 
as a result of this ruling."

For his part, Wylene believes the ruling acknowledged the effort that 
went into drafting Tehama County's law.

"We are especially encouraged by the fact that the court seemed 
impressed with the very thorough consideration by the board in 
adopting the ordinance . . . and made specific references in several 
places to their findings."

Raich would like to see a shift in emphasis.

"If the local governments put even a fraction of the energy and 
creativity into responsibly regulating medical cannabis that they 
have been in trying to prohibit cultivation, then we would have a 
much better and more reasonable regulation system for the patients 
who need it in California," he said.
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