In a lawsuit supported by California NORML (National Organization for the Reform of Marijuana Laws), Tehama County patients filed suit on June 4 against a county ordinance that limits their right to grow marijuana at home.
The lawsuit, by the law firm of Edie Lerman and J. David Nick of Ukiah, asks for a writ of mandate to strike down the Tehama ordinance.
The plaintiffs claim that the ordinance makes it impossible for them to legally exercise their Proposition 215 right to cultivate medical marijuana for themselves.
The Tehama ordinance declares it a public nuisance to grow marijuana anywhere within 1,000 feet of a school, school bus stop, church, park, or youth-oriented facility. It restricts gardens to no more than 12 mature or 24 total plants on parcels of 20 acres or less. It requires outdoor gardens to be surrounded by an opaque fence at least six feet high and located 100 feet or more from the property boundaries. Additionally it requires every patient garden to be registered with the county health services agency for a fee to be determined.
“The ordinance is an affront to property rights as well as patients’ rights,” declares Jason Browne, one of the Tehama plaintiffs. “The patient community has attempted for months to work with the county. They have snubbed us at every turn.” Browne adds, “We had no alternative but to sue.”
California NORML attorneys argue that local governments cannot legally declare activities that are protected by state law to be nuisances.
“They can’t take everyone’s rights away,” says attorney Edie Lerman. “California law states patients can have whatever they need for themselves and for collectives.” Lerman warns patients to expect a long battle, as the case is likely to go to the appellate level.
Tehama’s is the most restrictive of a number of anti-cultivation measures that have recently been proposed by local officials hostile to medical marijuana. In another lawsuit filed by Lerman & Nick, Mendocino County patients are challenging an ordinance that limits patient cultivation to 25 plants per parcel, regardless of the number of patients. The ordinance was recently amended to let collectives apply for licenses for larger gardens of up to 99 plants under certain conditions.
“The right to cultivate is fundamental to Proposition 215’s mandate that ‘seriously ill Californians have the right to obtain and use marijuana for medical purposes,’” says California NORML Director Dale Gieringer, a co-author of Proposition 215.
By Dennis McMillan
Published: June 10, 2010