Pubdate: Thu, 28 Nov 2013
Source: Appeal-Democrat (Marysville, CA)
Copyright: 2013 Appeal-Democrat
Author: Harold Kruger


Live Oak's Ordinance Banning Medical Marijuana Cultivation Was Upheld 
This Week.

The 3rd District Court of Appeals in Sacramento said state law and 
previous court decisions "do not pre-empt a city's police power to 
prohibit the cultivation of all marijuana within that city."

The appeals court upheld an earlier decision by Sutter County 
Superior Court Judge Perry Parker.

The City Council approved the ordinance in December 2011. James 
Maral, individually and as trustee of the Live Oak Patients, 
Caregivers and Supporters Association, and others sued to stop 
enforcement of the ordinance.

In upholding Live Oak's law, the appeals court on Tuesday cited its 
own decision in a legal challenge to Tehama County's medical marijuana law.

There is no "unfettered right to cultivate marijuana for medical 
purposes," the appeals court said.

Regulation of medical marijuana cultivation does not conflict with 
Proposition 215, the Compassionate Use Act approved by voters in 
1996, or the 2003 Medical Marijuana Program approved by the 
Legislature, the appeals court said.

The state Supreme Court, in its decisions, "found neither statute 
expressly or impliedly pre-empted a zoning provision that prohibited 
a medical marijuana dispensary anywhere within the city limits," the 
appeals court said.

Maral and the others asserted "no other municipality has banned 
cultivation of medical marijuana; they suggest the city could have 
(and should have) adopted less stringent regulation," the appeals 
court said. "But the choices other cities may have made with respect 
to medical marijuana are irrelevant to our analysis of pre-emption in 
this particular case."

The appellants contended there is a right to cultivate medical marijuana.

The appeals court, however, said "there is no right - and certainly 
no constitutional right - to cultivate medical marijuana."

The appellants also raised other issues, including allegations the 
City Council violated the state's open meeting law when it enacted 
the ordinance and affected "long-cherished property rights" by 
banning medical pot cultivation.

The appeals court said the appellants "failed to make proper 
arguments on these points, (so) we decline to address them."

In rejecting the appeal, the court said the city can recoup its legal costs.

In January, the appeals court dismissed the appeal, saying the 
appellants failed to file an adequate opening brief. The appeal was 
reinstated a few weeks later.
- ---
MAP posted-by: Jay Bergstrom