Pubdate: Thu, 07 Feb 2013
Source: Sacramento Bee (CA)
Copyright: 2013 The Sacramento Bee
Contact: http://mapinc.org/url/0n4cG7L1
Website: http://www.sacbee.com/
Details: http://www.mapinc.org/media/376
Author: Denny Walsh

COURT TOSSES CHALLENGE TO TEHAMA MEDICAL POT ORDINANCE

A challenge by medical marijuana patients to a Tehama County ordinance
that regulates marijuana cultivation was rejected Wednesday by a
Sacramento-based appellate court.

The plaintiffs contend the ordinance is impermissible under the
California Constitution because it amends the Compassionate Use Act, a
measure adopted by voters in 1996 that allows seriously ill
individuals to use marijuana as medicine if it is recommended by a
physician.

They also maintain that the ordinance  which limits the number of
plants that can be grown on an individual parcel, depending on its
size  conflicts with the Medical Marijuana Program, legislation passed
in 2003 to clarify the scope of the Compassionate Use Act and promote
its uniform application among the counties.

But a three-justice panel of the 3rd District Court of Appeal ruled
the plaintiffs' premise is flawed because neither of those state
statutes "grants petitioners, or anyone else for that matter, an
unfettered right to cultivate marijuana for medical purposes."

The ruling upholds a similar one by Tehama Superior Court Judge
Richard Scheuler.

The three justices note that the county's ordinance "does not prohibit
the cultivation of medical marijuana for qualified patients. It merely
regulates and restricts locations of grows and amounts that may be
grown on particular parcels. Since the (Compassionate Use Act) does
not create a right to cultivate medical marijuana, restrictions on
such cultivation do not conflict with the CUA."

The justices cite the Medical Marijuana Program's provision that it
does not "prevent a city or other local governing body from adopting
or enforcing ... laws consistent with this article."

Tehama's ordinance puts a limit of 12 to 99 mature plants per parcel,
depending on its size. It declares cultivation of any amount of
marijuana within 1,000 feet of any youth-oriented facility, such as a
school, to be a nuisance, and it requires anyone cultivating marijuana
to register the premises with the county's Health Service Agency,
disclosing the name of each owner or lessee and of each qualified
patient or primary caregiver participating in the cultivation.

The 21-page opinion was authored by Associate Justice Elena J. Duarte,
with the concurrences of Acting Presiding Justice M. Kathleen Butz and
Associate Justice Louis Mauro. 
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