The MENDOCINO COUNTRY Independent 8/19/10

Jim Hill, Edie Lerman and media. Pebbles Trippet far right. RJ photo September 11, 2009

HILL SUIT VS 9.31 CONTINUED

by Richard Johnson

    On September 11, 2009,  Potter Valley medical marijuana grower Jim Hill and four others filed suit seeking a Superior Court injunction against County Health and Safety Code Chapter 9.31 titled Medical Marijuana Regulation which includes a highly-conditioned sheriff's  permit for coops growing between 25 and 99 plants per parcel.

    The ordinance was approved 3-2 by county supervisors in May, and a fee schedule was adopted in June of this year. For more information, see www.mendocinosheriff.com.

    As an applicant for the program was raided by the DEA and COMMET in early July before she got her permit, it may be wise to see how the program works this year before applying.

    Plaintiffs have repeatedly postponed a hearing on their lawsuit, and it is once again scheduled to go before judge John Behnke on Friday, September 17 at 5:00pm. They said they are awaiting a ruling in a case involving dispensaries in the city of Anaheim, California. At the same time, the suit served as a backdrop for debate over the new ordinance while supervisors were considering it.

    The Anaheim case is not on point in that it deals with a city ordinance to ban dispensaries, whereas this is a county ordinance to regulate cultivation. On August 18, the Fourth Appellate Court sent the Anaheim case back to the trial court, overturning its decision to grant a demurrer to the city and instructing that the  declaratory judgement against a city ban on dispensaries sought by medical marijuana patient plaintiffs should be litigated.
    The appeals court specifically declared that it would not decide whether the Medical Marijuana Program prevents local governments from using nuisance abatement ordinances and penal legislation to bar the use of property for medical marijuana activitiies because plaintiffs had appealed a demurrer, not a final judgment.
    The city had argued that the federal Controlled Substances Act pre-empted California's medical marijuana laws. The appeals court rejected that argument.

    I strongly suspect the real reason for the repeated continuances is that plaintiffs’ attorneys are well aware that their suit lacks legal merit and have filed it on behalf of clients whose motive is to score political points in the runup to board debate on the ordinance.

    A month after Jim Hill filed his lawsuit, his 25-plant grow was raided and eradicated by DEA agents. He was not charged, and recently was able to regain possession of some tractors that had been seized.

An Absolute Right?

At stake in the litigation is whether state statutes and case law grant absolute rights to medical marijuana patients and those who grow for them regardless of amount or situation.

 Or in the alternative, does a county or municipality have authority to regulate the amount and circumstances of medical marijuana cultivation under its civil police powers?

Hill's lawyers are the well known criminal defense team of Edie Lerman and David Nick with offices in Ukiah and Mendocino.

Pleading, Nick argues the county has no authority to limit the amount of medical marijuana a patient can grow or have grown for them in any way because the state has pre-empted medical marijuana regulation in H& S 11362.5 et seq

He further argues the Urziceanu decision included a paragraph exempting medical marijuana from local nuisance laws.

Next, he declares the county has no authority to prevent medical marijuana patients from "organizing" -- read cultivating -- near certain land uses such as churches, schools, bus stops and youth oriented facilities.

Finally, he states that Chapter 9.31's cultivation limits of 25 or 99 plants per legal parcel are inconsistent with the Compassionate Use Act and the Medical Marijuana Program SB 420 because they could under some circumstances limit the amount of medical marijuana a patient or association may cultivate on a single parcel to less than the amounts specified in 11362.77.

These arguments are consistent with the longstanding opposition to the new ordinance by a vocal minority of cultivators who claim to speak for patients. What they argued in the committee meetings in 2009 is explicitly stated in the Hill lawsuit: they resist any government attempt to regulate their industry, just as have farmers, loggers and fishermen.

Civil Police Power:

The county's opposition brief to Hill's motion for an injunction provides ample authority to regulate medical marijuana through its constitutional police powers to abate nuisances which threaten public safety, and ample evidence that marijuana cultivation of any kind in residential neighborhoods is an attractive nuisance that poses a serious threat to public safety.

In addition, the county argues that its marijuana nuisance ordinance (aka Ordinance 4197) does not enter into a field fully occupied by state law, nor does it illegally modify or amend the Compassionate Use Act or the Medical Marijuana Program Act.

In fact, they argue that it "balances the needs of qualified patients and caregivers against the serious threats of violent crime and other health threats which potentially cause nuisances to those of the surrounding community. This balancing is entirely consistent with the right of qualified individuals to possess whatever amount of medical marijuana they may need, to form cooperatives of any overall size, and spread out growing operations and still retain defense to criminal prosecution."

Respondents' brief in this action is a direct refutation of those who have been claiming that a combination of medical marijuana statutes, the attorney general's guidelines and the Uriziceanu decision grant general or absolute rights to anyone possessing a medical recommendation or claiming to grow on behalf of such a person to cultivate unlimited amounts of marijuana at any location under any set of circumstances.

Finally, respondents argue that plaintiffs have failed to meet their burden of proof to get a preliminary injunction because they have not presented evidence they have been or will be irrevocably harmed by the ordinance, nor that they will prevail on the merits at trial.

 A Limited Defense

The opposition brief filed prepared by assistant county counsel Terry Gross for Jeanine Nadel declares at the outset that California law presumes that local land use, public health and safety regulations are not preempted by state law. In addition, the California Constitution Article XI, section 7 provides counties the authority to enact such laws, and case law has settled that there is a three-pronged test to determine if state law pre-empts local regulations which this ordinance does not meet.

In addition, she quotes a case in which the California Supreme Court instructs there is a presumption that local regulations in an area traditionally controlled by local government is not pre-empted by state law.  In addition, the CUA expressly states, "Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others." (§11362.5(b)(2))
Nadel and Gross's opposition goes on to deny that the CUA and the MMP grant an absolute or general right for anyone to cultivate, transport or distribute unlimited amounts of medical marijuana under any chosen circumstance, but only for "seriously ill Californians" to obtain and use it.

    "...not only is there no constitutional right to possess marijuana, there is no constitutional right to cultivate or access it in a manner that deprives a local entity of either local land use or health and safety police powers,." they argue.

On the contrary, the CUA has always been interpreted as a limited defense in criminal cases, providing that patients and their caregivers are exempted under certain circumstances from criminal prosecution for transportation, possession and cultivation, but not for sale or possession for sale.

Evidence of Nuisance:

In addition, Nadel has included in her opposition to the Hill suit a sworn declaration by Mendocino County sheriff captain Kurt Smallcomb that he has observed a number of violent crimes associated with marijuana cultivation over the last six years.

Specifically, Smallcomb stated that marijuana grows in excess of 25 plants are more easily spotted from both the ground and air and attract robberies, burglaries and violent crime impacting not just growers but neighbors as well.

He further stated that larger grows attract gang activity and that innocent neighbors are vulnerable to armed robbers trespassing through neighboring properties for criminal activities related to larger grows. He pointed to statistics indicating from 25-30 new cases involving violent crime associated with marijuana cultivation since 2001, and added a list of offense report numbers from the sheriff's computer system showing 38 robbery cases and 12 homicide or attempted homicides since 2000..

 In addition, there is a sworn declaration by Mendocino County air pollution control officer Chris Brown that the air quality management district receives numerous complaints of "strong, objectionable" marijuana odor in residential neighborhoods in unincorporated areas of the county, and that he has personally observed some of them. He attached a list of nearly 100 such complaint numbers and dates from 2002 to the present, mostly in the period from September to November.

The most severe nuisance to the community from cultivation of even small outdoor marijuana gardens is from armed thieves who are attracted by the odor.

Fire officials have also testified at the hearings on 9.31 that many structure fires are caused by indoor marijuana grows with unsafe, non-code electrical systems and owners are reluctant to call fire units for fear of prosecution.

This considerable evidence answers those who have been demanding justification for regulating medical marijuana through a nuisance ordinance because they are offended that their chosen medicine is thus characterized.

Interpreting Urziceanu

,Nadel and Gross specifically addressed Nick’s interpretation of the Urziceanu decision, stating the court was merely enumerating the exemptions in state law from criminal sanctions only, not civil police powers.

"Plaintiffs mistakenly rely on the Urziceanu decision for the proposition that under the MMP, section 11362.775 there is a right to form a collective to furnish medical marijuana to qualified patients that divests counties of their constitutional police powers to determine how and where collective cultivation occurs.”

Not so," she argues, pointing out that the reference to nuisance law was to the "drug house: abatement" statute which is not exclusive but an additional remedy to local civil nuisance abatement powers.

The above section of the Medical Marijuana Program Act does not provide an exemption from civil nuisance abatement, but only exempts persons growing collectively from "state criminal sanctions" for cultivation and possession on that sole basis.

The last statute listed -- 11570 (to 11578) -- specifically authorizes the civil abatement of crack houses and other properties on which habitual criminal drug activity takes place. It provides for an eviction procedure which can be initiated by any citizen or peace officer. Its criminal provision applies a contempt of court citation with a fine and or jail for persons who defy such evictions or abatement orders.