Live Oak among trailblazers amid medical pot rules
January 28, 2012
Jonanathan Edwards, Appeal-Democrat
Live Oak trail-blazed through thickets of medical marijuana law last month where few, if any, cities have journeyed.
The city of 8,600 residents became one of, if not the first city in California to ban growing medical marijuana — both indoor and outdoor — but it's one of hundreds struggling to protect residents, allow sick people their medicine and navigate state law.
James Maral, a Live Oak residnt who grows marijuana for himself and his mother, is already testing the ban and state law. Maral filed a lawsuit last week to get a temporary injunction to stop the ban, which took effect Jan. 20. A judge denied the request on a technicality, something Maral said he would remedy and take back to court in the next couple weeks.
Maral's case forces the question: Can a city or county completely ban growing and distributing marijuana? If so, where do patients like Maral, who suffers from chronic back pain and intestinal problems, get the medicine California voters decriminalized more than 15 years ago?
"Nothing is clear," said Bob Priebe, police chief of Moraga, an affluent community of 16,000 tucked away in the East Bay hills between Oakland and Walnut Creek. "That's why you find so many communities, law enforcement and planning directors waiting to see where the next turn on this whole thing is going to be."
Priebe led a "proactive" effort that ultimately resulted in the city banning dispensaries and outdoor medical marijuana grows. Patients can grow indoors so long as they do so in their main residence (not in a shed, let's say) and keep their plants out of sight."
"It was justified," Priebe said. "It certainly wasn't going to deny anyone with a legitimate medical issue from growing it in their home."
Live Oak, on the other hand, banned it, indoor and out. City Council members, in the ordinance they passed, called indoor grows "dangerous." If allowed, indoor operations would threaten residents with electrical malfunctions and robbers willing to bust down doors to steal drugs.
In Moraga, Priebe hasn't noticed any problems in the nine months since the city forced all grows inside.
"We've not had any backlash, and everyone seems to be happy," Priebe said, adding that the ban on outdoor grows and the regulation of indoor grows sparked no legal action.
Other cities haven't been as lucky. Bans on dispensaries triggered lawsuits like Maral's, some of which are now working their way to the top of the state's legal hierarchy.
The state Supreme Court has agreed to hear four cases in which cities banned dispensaries, not cultivation. Cities have focused their efforts at regulating dispensaries over the last decade, because dispensaries are easier to set up and more "aggressive," said Patrick Whitnell, general counsel for the League of California Cities.
That's starting to change, however, as people start growing in more back yards and neighbors complain about the smell and safety issues.
"They're a relatively new issue that's come up for cities and counties," Whitnell said of backyard grows. "They're becoming more and more prominent."
Tehama County Supervisor Bob Williams got wind of a problem when a few constituents called to complain about a neighbor who was constructing a 6-foot high fence around 2 acres on which they planned to grow marijuana. Williams scheduled a meeting with them.
"I was met by a young mother of three who was in tears and in fear that, if they had a grow right next to her house, she was afraid to let her kids out of her house," Williams said.
He spearheaded an ad hoc committee to explore some sort of regulation. Williams and his fellow board members ended up allowing outdoor grows, but limiting the amount of plants you could grow based on lot size.
Patients living on less than 20 acres can grow as many as 12 plants so long as they stay at least 100 feet from their neighbor's property. Someone with 20 to 160 acres of land can grow twice as many plants within 200 feet of their neighbor. Patients with spreads bigger than that can grow 99 plants with 300 feet of another property line
Tehama County didn't pursue a ban, because Proposition 215 allows patients to grow their own medicine, Williams said.
"We could end up in litigation, and it would potentially cost the county a lot of money," Williams said. "Our board didn't want to take that risk."
A lawsuit came anyway, although it was dismissed in Tehama County Superior Court, the supervisor said.
Like Priebe, Williams is looking to higher courts and Sacramento lawmakers for guidance. If Live Oak's complete ban passes legal muster, he said Tehama County would probably take another look at medical marijuana cultivation and consider banning it all together. He doesn't think he's alone.
"If Live Oak is successful, we may see a lot more cities and counties following suit," Williams said.
Violating state law
Live Oak won't be, said Kris Hermes, spokesman for Americans for Safe Access.
"They're in clear violation of the state law," Hermes said. "There's just no question that cultivation is a right under the law."
Proposition 215, or the Compassionate Use Act, exempts patients from a law that declares "every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment."
Yes, the Compassionate Use Act shields patients who grow medical marijuana from prosecution, but it doesn't guarantee them a right to grow, said Thomas Brown, an Irvine attorney who has advised cities on banning dispensaries.
Brown pointed to Assembly Bill 1300, signed by Gov. Jerry Brown last August and took effect this month. The law spells out that cities can regulate "the location, operation or establishment of a medical marijuana cooperative or collective."
Thomas Brown said he thinks the same applies to cultivation, although the issue still hasn't been hashed out in the courts.
"Cities have the right to exercise their zoning authority to prohibit cultivation outright," Thomas Brown said.
Nothing in the Compassionate Use Act makes growing marijuana special when it comes to a city's power to zone, he said. It's legal to own an auto body shop, but an owner can't plop one in the middle of a residential neighborhood if it runs afoul of that city's zoning.
"A county or city may make and enforce within its limits all local, police, sanitary and other ordinances and regulation," according to the state constitution, so long as they are "not in conflict with general laws," Thomas Brown said.
Willits, a town of about 4,900 in Mendocino County banned dispensaries in 2006 and outdoor cultivation a year later.
"It's a public nuisance," said City Manager Paul Cayer, who echoed the concerns of many Live Oak residents. "If there's marijuana growing outdoors, and people in the neighborhood see it, it brings people into the neighborhood who want to rip it off."
Also, when the marijuana plants flower, it just plain smells bad, Cayer said.
"That leads to people in their neighborhood disrupting their peace and enjoyment."
But smoking, eating and otherwise using marijuana is legitimate medicine for some people, Cayer said, and the Willits City Council wanted to give those people access to something that could ease their pain and nausea.
"It's a balancing act here to weigh somebody's legitimate right as a suffering patient of disease," Cayer said, "with the needs of the community to be secure and safe."
Balancing when you don't know the weight in the scale is hard. Whitnell said they think banning outdoor grows is within a city's right, but one way or the other, he hopes the courts decide soon and definitively.
"The main problem is the law is really in a state of flux," he said. "There's a lot of uncertainty among cities as to whether they can regulate, whether they can ban, whether they have to ban, and just how federal authorities are going to view cities who do want to allow dispensaries on a regular basis."
The Supreme Court could blaze through briefing and oral arguments and come to a decision quickly, or the justices could take a couple years, said Thomas Brown, who added that he wants it to come sooner rather than later.
"I hope the court will see the urgency of issuing a decision to provide some guidance at the local level."