Counties, cities set their own marijuana limits

Paul Boerger, Mt. Shasta News (CA)

It hasn't happened in Siskiyou County yet, but elected officials in other California counties and cities have passed ordinances governing how many marijuana plants and how much processed plant a legitimate user of medical marijuana may possess at one time.

Such ordinances are provided for in Senate Bill 420, which also mandates that counties create a medical marijuana identification card system for the purposes of confirming that the holder is a legitimate user. Siskiyou County has yet to take that step, as well.

Dilemmas abound when it comes to medical marijuana, which is the subject of two conflicting state laws - Proposition 215, which made it legal, and SB 420, which amended the original Prop. 215. Both of those laws conflict with federal law, and some have questioned whether SB 420 is constitutional because it is a bill passed by legislators amending a proposition voted into law by the people.

In some places in California, such as San Diego, the county and cities within the county have passed ordinances that allow different possession amounts.

Siskiyou County uses SB 420's minimum floor of six mature plants and eight ounces as its legal limit. Legitimate medical marijuana users who possess more than that in the county are subject to arrest and plant confiscation even if they have a doctor's recommendation for more.

Siskiyou County sheriffs will also make arrests if a legitimate user has only six plants, if the plants appear to have the potential to produce more than eight ounces of processed marijuana.

The City of San Diego, on the other hand, allows legitimate users to have as many as 24 plants and one pound of marijuana, with that amount doubling for caregivers. At the same time, the County of San Diego holds to strict SB 420 limits of six plants and eight ounces.

Humboldt County, which borders southwestern Siskiyou County, allows 99 plants with a maximum of three pounds, while El Dorado County near Sacramento has a complex system with differing amounts allowed depending on whether the growing is done indoors or outdoors and the growing season.

Siskiyou County Sheriff Rick Riggins said a medical marijuana identification card system would be “very helpful” for his department.

“It would provide a written policy,” Riggins said. “We could work out the larger recommendations ahead of time. If we could get it standardized, it would make it much easier.”

Riggins said his department began the process a few years ago, but the issue now rests with the Siskiyou County Health Department, which is responsible for implementing the program.

Siskiyou County District Attorney Kirk Andrus also supports identification cards.

“Absolutely,” Andrus said. “Anything that helps clarify who is going about it the right way would help. It would help to remove the shadow of criminality.”

Siskiyou County Public Health Director Terri Barber said the department has been busy recently with staff hires and staff reshuffling, but is now ready to tackle the issue of medical marijuana.

“It certainly is on our radar,” Barber said. “It is one of the first things we'll be talking about.”

Barber said she will be looking into whether the identification card will be verifying a doctor's recommendation for more than six plants and eight ounces.

Andrus said there is “no question” that verifying a doctor's recommendation for a larger amount of marijuana would help.

“The last thing we want to do is to have a doctor come into court and testify that a person's medical needs require 10 or 15 plants,” Andrus said. “We need to know that at the outset. The last thing we want to do is put them through the criminal process.”

On the issue of raising the number of plants and ounces above the SB 420 minimum, Andrus said, “My job is to enforce the law.” But he noted that raising the limit might help law enforcement.

“It could help in distinguishing between sick people and those growing for profit,” Andrus said. “Whatever the law is, I will enforce it.”

Riggins said the Sheriff's Department is not only caught between Proposition 215, which made medical marijuana legal, and SB 420, which amended Prop. 215, but also has to take into consideration federal laws that do not recognize any state laws making marijuana legal as medication. Marijuana is illegal, period, under federal law.

“They put us right in the middle of this thing,” Riggins said. “We are sworn to uphold the state and the US constitutions.”

Riggins said when the department encounters a garden with more than six plants and a valid recommendation from a doctor, “We take the totality of the case.”

“Each one is on an individual basis,” Riggins said. “I have no problem with someone with an illness, but a 99 plant recommendation isn't for personal use.”

Riggins noted that in the case of a very large garden, the department notifies the federal government.

“They want a lot of weight or large number of plants,” Riggins said. “We had five gardens go federal last year.”

Siskiyou County supervisor LaVada Erickson said she is in favor of the identification system, but would need more information before voting to increase plant and ounce limits.

“A card identification system would be very useful,” Erickson said. “It would provide verification. People wouldn't be fearful of showing the card. There needs to be a reasonable sense of it for us to raise the limits. We wouldn't do it just because other counties do it. I would need to see medical evidence that it is needed.”

County supervisor Jim Cook said he supports the Sheriff's position for the identification cards, but would take the medical marijuana issue a step further.

“I actually think that if doctors can give prescriptions, then perhaps the county should license growers and tax them appropriately, rather than having a dozen plants here and all over the landscape,” Cook said. “Then the county can roll the stuff and sell it to the licensed pharmacies.”

On the constitutional issue between Prop. 215 and SB 420 the State Attorney General's office, led by Jerry Brown Jr., says it has no official opinion on the matter.

“We have not issued an opinion,” said Rodney Lillyquist, chief of the Attorney General's legal opinion unit. “We have not been asked.” Lillyquist said that to his knowledge the issue has never been litigated or come before a court.

Other legal aspects of medical marijuana, however, have come before the courts and the following opinions have been given:

€ A December 2006 ruling by the San Diego Superior Court rejected the county's challenge and affirmed the state's Medical Marijuana Program and the obligation of the county to implement the ID card program mandated under SB 420;

€ A California Supreme Court decision in People v. Wright reaffirmed that SB 420 specifically provided an affirmative defense to the crime of transporting marijuana to a qualified patient or a person with a state identification card who transports or processes marijuana for his or her own personal medical use. In addition, the Court found that the amounts of marijuana described in SB 420 constitute a floor, not a ceiling, on the amount of marijuana a qualified patient may possess; and

€ The Third District Court of Appeal issued a positive decision in People v. Urziceanu affirming the legality of collectives and cooperatives, and held that SB 420 provides for a defense to marijuana distribution for collectives and cooperatives.

In a June 2005 6-3 vote, however, the Supreme Court of the United States affirmed the federal government's right to be the overriding marijuana authority when they denied the right of citizens to grow marijuana for personal use.

A 2001 Supreme Court ruling said that anyone distributing medical marijuana could be prosecuted, despite claims their activity was a medical activity.

The Hinchey-Rohrabacher Amendment, which proposed cutting off funding for the federal government's prosecution of medical marijuana cases in states that allow medical marijuana was recently defeated in the House of Representatives.

The bill, sponsored by New York Democrat Maurice Hinchey and California Republican Dana Rohrabacher, has failed each year since its introduction in 2003 to pass the House.