County May Regulate Cultivation of Medical Marijuana

February 13, 2013 | Bulletin No. 1020998.1

A rural county passed an ordinance to regulate the cultivation of medical marijuana.  A group of individuals who are “qualified patients” challenged the constitutionality of the ordinance.  The court of appeal held that the ordinance does not conflict with the Compassion Use Act (“CUA”) or the Medical Marijuana Program (“MMP”) because neither statute gives anyone the unfettered right to cultivate marijuana for medical use.  (Browne v. County of Tehama (--- Cal.Rptr.3d ----, Cal.App. 3 Dist., February 6, 2013).

Facts

The County of Tehama (“County”) is a rural county that sought to regulate the cultivation of medical marijuana.  County’s Board of Supervisors enacted Ordinance No. 1936 “to establish reasonable regulations upon the manner in which marijuana may be cultivated, including restrictions on the amount of marijuana that may be individually, collectively, or cooperatively cultivated in any location or premises, in order to protect the public health, safety, and welfare in Tehama County.”  The Ordinance states that the regulation of cultivation “is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards.” 

Depending on the size of the premises, the Ordinance makes it a nuisance to cultivate more than a certain number of marijuana plants.  It is also a nuisance under the Ordinance “to cultivate any amount of marijuana within 1000 feet of any school, school bus stop, school evacuation site, church, park, child care center, or youth-oriented facility.”  The Ordinance requires anyone cultivating marijuana to register the premises with the County Health Service Agency to provide certain information and requires that all outdoor marijuana grows be enclosed by an opaque fence that is at least six feet high and provides setback requirements for both outdoor areas and buildings where marijuana is grown.  The Ordinance states that “Any failure to comply with the Ordinance is deemed a nuisance and subject to abatement.” 

A group of individuals who use medical marijuana and are “qualified patients” (“Patients”) filed a petition for writ of mandate or prohibition.  Patients asserted the Ordinance was unconstitutional on its face.  They asked for the court “to set aside and withdraw and rescind” the Ordinance.  The County demurred asserting that Patients failed to state facts sufficient to constitute a cause of action.  The trial court sustained the demurrer and dismissed the petition.

Decision

The court of appeal affirmed the decision of the trial court and concluded that neither the CUA nor the MMP grants anyone “an unfettered right to cultivate marijuana for medical purposes.” 

The CUA was adopted by California voters in 1996 as Proposition 215.  The CUA does not grant a blanket right for the use of medical marijuana but instead “only immunizes specific persons from prosecution under two sections of the Health and Safety Code.”  The CUA does not grant a constitutional right to use marijuana.

The MMP was passed by the Legislature in 2003 to clarify and promote the uniform application of the CUA.  The MMP created a voluntary program for qualified patients and primary caregivers to obtain identification cards.  It also provides immunity from prosecution for a range of conduct that arises from the provision of medical marijuana to qualified patients such as possession and cultivation of marijuana.  “The MMP does not, however, ‘confer on qualified patients and their caregivers the unfettered right to cultivate or dispense marijuana anywhere they choose.’” (Interestingly, this position is contrary to the State Supreme Court’s decision in People v. Kelly where the Court concluded that limitations on how much medical marijuana a qualified patient or caregiver may possess or cultivate is invalid because it amends the CUA without approval of the electorate.  See our Legal Alert on February 18, 2010, “Limitations On Amount Of Marijuana A Qualified Patient Or Caregiver May Possess Or Cultivate Is Invalid Insofar As It Burdens a Defense Under the Compassionate Use Act To A Charge Of Possessing Or Cultivating Marijuana.”

A 2010 amendment to the MMP restricts where a marijuana cooperative or dispensary may be located.  The MMP provides limits for the amount of marijuana a caregiver may legally cultivate or possess to no more than eight ounces of dried marijuana or no more than six mature or 12 immature plants for each qualified patient.  The MMP authorizes physicians to prescribe greater amounts under certain circumstances and cities and counties to establish guidelines for amounts that exceed those provided by statute.  The MMP “does not ‘prevent a city or other local governing body from adopting or enforcing’ ‘laws consistent’” with the MMP. 

Patients claimed the Ordinance is unconstitutional on its face.  The court, therefore, considered only “the text of the measure itself, not its application to the particular circumstances of an individual.”  Patients also asserted the Ordinance unconstitutionally amended the CUA.  Because only the Legislature can amend a state statute, the court noted the proper analysis is whether state law preempts the Ordinance.  The court concluded it does not. 

The CUA does not create or grant unrestricted rights to cultivate medical marijuana for medical use.  Instead, “it only provides a limited defense to certain crimes.”  The CUA does not expressly preempt regulation regarding the location or amounts of medical marijuana for cultivation.  “Since the CUA does not create a right to cultivate medical marijuana, restrictions on such cultivation do not conflict with the CUA.”  The court opined, “It is by no means clear that the CUA commands that counties permit the cultivation of marijuana for medicinal purposes.” 

The court declined to express an “opinion as to whether a local ban on cultivating medical marijuana is preempted by state law” because “[t]he Ordinance is clearly not a ban.”  The Ordinance “merely regulates and restricts locations of grows and amounts that may be grown on particular parcels.”  The court found that the Ordinance’s requirements for written physician approvals and consent of the landlord do not conflict with the CUA. 

The MMP, specifically Health and Safety Code section 11362.83, allows local governing bodies to enact laws that are consistent with the MMP.  Patients asserted that the MMP preempts County from using nuisance abatement law to prohibit the use of a property for purposes of cultivating medical marijuana.  The court found that neither immunity statute contained in the MMP “precludes a local governing body from restricting or regulating the activity and declaring a nuisance if the activity is not conducted in conformity with the restriction or regulation.”  Also, because the Ordinance’s declaration of nuisance is not solely based on the cultivation of medical marijuana, it does not conflict with Health and Safety Code section 11362.765, which provides immunity from the “drug den” abatement law. 

Patients’ arguments were premised on their erroneous interpretation that the MMP and CUA “give express authority to cultivate marijuana for medical purposes without restriction or regulation.”  The court concluded that Patients failed to show that either the MMP or CUA preempts the Ordinance.

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Mona G. Ebrahimi or Jonathan P. Hobbs | 916.321.4500