Pubdate: Fri, 14 Aug 2015
Source: Appeal-Democrat (Marysville, CA)
Copyright: 2015 Appeal-Democrat
Author: Eric Vodden


A Superior Court judge took under submission Thursday the question of 
whether Yuba County's ban on outdoor marijuana plants is a violation 
of the state constitution.

Yuba County Judge Benjamin Wirtschafter said after listening to about 
40 minutes of courtroom arguments that he will issue a ruling "within 60 days."

The afternoon hearing attended by more than 30 people was the latest 
courtroom proceeding in the March lawsuit filed by opponents to the 
new ordinance. Filing the action was Yuba Patients Coalition and 
seven individuals.

In addition to banning outdoor plants, the more restrictive 
regulations limit indoor plants to a dozen in a qualified accessory 
structure. It also requires growers register and pay an annual fee to 
the county.

Arguments on Thursday were the first in open court centering on the 
constitutionality of the ordinance. An earlier challenge to an 
urgency designation that allowed the ordinance to take effect 
immediately was turned down by the Third District Court of Appeal.

Among other things, the lawsuit maintains the new ordinance is 
unconstitutionally cost-prohibitive for most patients.

It says the ordinance "deprives poor qualified medical marijuana 
patients of the ability to cultivate the medicine they need, in 
accordance with state law, because they are unable to afford to pay 
for the accessory structure ..." The ordinance requires such 
structures be permitted, have electrical service and contain odor 
filtration and ventilation systems.

John Vacek, Yuba County deputy county counsel, argued in court the 
ordinance does not discriminate since "there is no constitutional 
right to cultivate marijuana."

"It does not create a new classification of person," he said. "It 
does not violate equal protection." "It doesn't compel you to do 
anything unless you want to grow pot."

Attorney Charnel James, representing the plaintiffs, argued there are 
"different levels of discrimination built into this ordinance."

She said a condition of registering to grow marijuana requires a 
waiver of the growers' right to a search of their property. That is a 
violation of the constitution's prohibition of unlawful search and seizure.

James also said wording in the ordinance is vague, which 
discriminates against those who don't understand it.

"I have lots of clients who have tried to comply and have tried to 
get a permit but haven't been able to because the ordinance is 
vague," she said.

Yuba County also cites as precedent an outdoor growing ban that was 
approved for the city of Live Oak.

But James, citing recent expert opinions that marijuana does provide 
medical relief, said the "political environment is different" than 
when Live Oak's ban was upheld.

"There is a different standard now," said James, saying the earlier 
ruling is not binding. Vacek disagreed. "The Live Oak case says there 
is no constitutional impediment to saying you can't grow marijuana, 
end of story," Vacek said.
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