Medical pot advocates say Red Bluff growing ban vulnerable to lawsuits

November 04, 2009

Janet O\'Neill, The Record Searchlight

The City Council's action this week to ban indoor and outdoor marijuana cultivation is a rare move and puts Red Bluff in danger of lawsuits, spokesmen for two medical marijuana advocacy groups said Wednesday.

"Because they can't do it under state law and they'll end up in court and they'll lose," said Bruce Mirken, communications director for the Washington, D.C.-based Marijuana Policy Project. Speaking from San Francisco, Mirken described his group as the largest marijuana policy reform organization in the country.

The city's amendment to its code Tuesday also prohibits medical marijuana dispensaries, cooperatives and collectives. California's Proposition 215, the voter-approved initiative known as the Compassionate Use Act of 1996, permits marijuana use by patients under certain conditions.

Eight years later, Senate Bill 420 in part set forth guidelines for cultivation and possession of medical marijuana in an attempt to clarify the original measure.

Kris Hermes, Oakland-based spokesman for Americans for Safe Access, said to his group's knowledge, only three California cities have banned outdoor cultivation - Willits and Ukiah in Mendocino County and Cloverdale in Sonoma County.

"ASA knows of no other jurisdictions (besides Red Bluff) that have banned cultivation outright," Hermes said. With more than 30,000 members, ASA is an organization of patients, medical professionals, scientists and concerned citizens promoting safe and legal access to cannabis for therapeutic use and research, its Web site says.

Like Red Bluff, some cities "feel the odor and safety issue is sufficient to zone that kind of activity out of existence," Hermes said. But outlawing indoor growing goes one more step.

"That's ripe for a lawsuit," Hermes said. "They cannot ban all cultivation."

ASA, which also believes banning dispensaries entirely from a city or county is illegal in California, is unaware of any legal challenges to the cultivation prohibitions in the three cities Hermes mentioned, he said.

Red Bluff originally proposed only one ordinance, with city officials saying the proliferation of marijuana and collectives prompted citizen complaints and posed a threat to public safety. But before Tuesday night's meeting, a second, "urgency" ordinance also appeared that would immediately ban dispensaries and cultivation for 45 days.

That was spurred by the recent opening of the Blue Toad collective without permits, City Manager Martin Nichols said Wednesday. But before the council met, cultivation was deleted from the second document.

Nichols said City Attorney Rick Crabtree felt the cultivation would "just further complicate" the issue and because the growing season is over, it was unnecessary. A telephone message left at Crabtree's office was not returned.

Nichols acknowledged that ban opponents were vocal Tuesday about suing the city, but said at this point they were only "threatening" to take such action.

The ordinance will come before the council again on Nov. 17 for adoption, after which opponents have 30 days to initiate a referendum.

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