Pubdate: Sun, 27 Feb 2011
Source: Ukiah Daily Journal, The (CA)
Copyright: 2011 The Ukiah Daily Journal
Contact: http://www.ukiahdailyjournal.com/feedback
Website: http://www.ukiahdailyjournal.com/
Details: http://www.mapinc.org/media/581
Author: Tiffany Revelle
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

ARGUMENTS HEARD IN MEDICAL MARIJUANA LAWSUIT

The long-delayed lawsuit against the county of Mendocino over its 
medical marijuana ordinance was in court Friday for the first time in 
more than a year.

Local attorney E.D. Lerman and San Francisco attorney J. David Nick 
filed the lawsuit against the Mendocino County Board of Supervisors 
and Sheriff Tom Allman in September 2009, on behalf of five medical 
marijuana patients, including principal plaintiff Jim Hill.

Mendocino County Superior Court Judge John Behnke said Friday at the 
end of the half-hour hearing where both sides presented their 
arguments that he would issue a written decision. He has 90 days to do so.

The lawsuit alleges the county's medical marijuana ordinance, 
codified as Mendocino County Code 9.31, is unconstitutional because 
it limits cultivation in ways state law, outlined in Proposition 215, 
the Compassionate Use Act, does not.

Behnke said at the outset of the hearing that he would consider the 
matter a "facial challenge" because the plaintiffs don't give 
"specific instances in which the ordinance has been wrongfully applied."

The plaintiffs seek an injunction to stop the county from enforcing 
the code, which is enforced using the county's nuisance procedures -- 
a fact that rankled local growers and medical marijuana activists 
when the Board of Supervisors was revising 9.31 in 2009.

"This is a policy decision being made by the county in order to 
ameliorate insulting other people who may be insulted by those using 
medical marijuana," Nick said.

He argued that state law pre-empts any local regulation concerning 
medical marijuana.

"The county cannot ban -- municipalities cannot ban -- and prohibit 
or sanction ... what state law has expressly allowed people to do," Nick said.

He said the purpose of the Compassionate Use Act was to "take the 
stigma out" of using marijuana as a medicine, and that the county's 
treatment of its cultivation as a nuisance contradicts that.

"Everybody on this planet understood the Compassionate Use Act as 
allowing you to grow marijuana anywhere you wanted, where you have 
control, period," Nick said.

Code 9.31 makes it impossible for some people to grow marijuana where 
they live, Nick argued. He said county lawmakers should interpret 
state law in a way that promotes the purpose of state law. County 
code should "enhance access" to medical marijuana, he argued.

"Clearly, an ordinance which is prohibiting an unknown quantity of 
individuals that may not live in qualifying properties from growing 
in their very own land, that they own or rent or have control over, 
is not enhancing access," Nick said.

Allowing the 9.31 regulations to stand, he said, would contribute to 
the "crazy quilt" of regulations that change from one city or county 
to the next.

Nick said the lawsuit is similar to the Northern California 
Psychiatric Society v. city of Berkeley, where the city banned the 
use of electroshock therapy for psychiatric patients when the state allowed it.

He also cited an opinion from the state Attorney General's Office 
that "if you create ordinances which detract, limit or narrow what 
people are allowed to do under this legislation, it's pre-empted."

Attorney Terry Gross of the Mendocino County Counsel's Office 
represented the county in the hearing.

State medical marijuana law protects patients and prescribing doctors 
from criminal prosecution, but 9.31 doesn't impose criminal 
penalties, she argued.

"What we have here is a local ordinance that is regulating something 
that is legal," Gross said. "That's what zoning regulations do."

Gross read from the Compassionate Use Act, "Nothing in this action 
shall be construed to supersede legislation prohibiting persons from 
engaging in conduct that endangers others, nor condone ... marijuana 
for non-medical uses.'"

She read from the Medical Marijuana Program Act, "Nothing in this 
article shall prevent a city or other local governing body from 
adopting and enforcing laws consistent with this article,'" and a 
more recent change in the law this year.

"I don't know how the Legislature can say it more concisely or 
precisely: Nothing in this section shall prohibit a city, county or 
city and county from adopting ordinances or policies that further 
restrict the location or establishment of a marijuana collective, 
cooperative, dispensary, operator, establishment (or) provider.'"

She said the section also says the law doesn't pre-empt ordinances 
adopted prior.

"There's no implied pre-emption here," Gross said.

She continued, "I agree the intent is to enhance access, to remove 
stigma ... The county's ordinance is an attempt to balance the needs 
of medical marijuana users in the county with the needs of those who 
are impacted by sale, use, growth (of marijuana). There's no ban here 
. on marijuana or cultivation. Yes, there are people who, by virtue 
of the size of their parcel (or) location of their parcel, cannot 
cultivate marijuana, but that's what zoning regulation is about."

The restrictions are similar to those that prohibit certain types of 
agricultural uses or farm animals in certain areas.

"That is what land use regulation does," Gross said at the conclusion 
of her argument.

Nick said outside and inside the courtroom that he believes the case 
will end up before the state Supreme Court. Whichever side wins on 
this level, he noted, the other side will likely appeal.

He predicted Behnke will likely grant the county's motion to throw 
out the lawsuit, but leave room for the petitioners to amend the 
complaint and bring it back to court.
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MAP posted-by: Jay Bergstrom