Pubdate: Thu, 09 Aug 2012
Source: Chico News & Review, The (CA)
Copyright: 2012 Chico Community Publishing, Inc.
Contact:  http://www.newsreview.com/chico/
Author: Ken Smith

WAHL OF DEFIANCE

Can New, Tougher Medi-Pot Ordinance Stand Up to Legal Challenge?

A Chico lawyer and medical-marijuana advocate contends the new
medi-pot ordinance under consideration by the Butte County Board of
Supervisors is illegal and a slap in the face to voters who recently
rejected a less-restrictive ordinance.

On July 31, the board, at the suggestion of Supervisor Larry Wahl,
voted 3-2 to direct county staff to draft an ordinance similar to that
adopted by Kings County last year. That ordinance states: "Cultivation
of medical marijuana is prohibited in all zones of the county, except
for cultivation for personal medicinal use by a qualified patient
within a secured, locked and fully enclosed structure on their
personal residence."

"They said they wanted to do this, but hopefully they won't follow
through with it, because it's undemocratic and would be very
disrespectful to their constituents," said Robert Mackenzie, a
land-use attorney who represents the group Citizens for Compassionate
Use.

"They got a pretty clear mandate from the voters," he continued,
referring to the defeat of Measure A, a ballot initiative on the
county's plan to limit marijuana cultivation based on property size,
with no plants allowed on parcels of a half-acre or smaller. That plan
was rejected by 55 percent of voters. "It seems pretty disrespectful
to say, 'Well, now we're going to do something even more
draconian.'"

Mackenzie said Measure A's defeat strengthens future legal cases if
the county is sued over a new ordinance. He made it clear he wasn't
threatening to sue the county, but added, "It's likely someone will.

"They're doing something inside of a year from the certification of
the election results, so if there is litigation it seems like the
presumption would go to the voters," Mackenzie said. "Legislative
bodies get a wide degree of deference from courts, normally, but in
this situation ... it's unlikely a court would extend that same degree
of deference to the supervisors."

Measure A was added to the June 5 primary as a result of a referendum
petition-a signature-gathering campaign to get it in the ballot
spearheaded by Citizens for Compassionate Use. Mackenzie said that
another referendum is an option, but that litigation seems a more
likely way for opponents to shut down the new ordinance.

"[The proposed ordinance] is also irresponsible, fiscally speaking,
because they're inviting themselves to be sued," Mackenzie said. "When
Mr. Wahl decided he wanted to try this ordinance out, I don't know
that he had a legal opinion from county counsel on it. If they do get
a legal opinion, I think they might realize how bad the whole deal is
and just decide to scotch this whole thing.

"We're in a wait-and-see mode, because I want to give them the chance
to do the right thing. If they do, no harm, no foul."

Mackenzie said there are legal problems with the Kings County
template, including the fact that that it bans collectives and
cooperatives and doesn't make provisions for caregivers who grow for
those who are disabled or otherwise unable to cultivate their own. He
said this is in direct defiance of state law, specifically the Medical
Marijuana Program Act, also known as Senate Bill 420, a 2003 measure
that implemented 1996's Proposition 215, which originally legalized
medical marijuana in California.

Supervisor Wahl disagrees about the proposed ordinance's legality, and
said he has spoken with county counsel, as well as people in Kings
County who vouch for the ordinance's effectiveness.

"Our major interest in mind was finding another county that had
successfully implemented that prohibition [on outdoor
cultivation].

"We've been without an ordinance for a long time," he said about the
board's action so soon after Measure A's defeat. "I think it's
appropriate we have an ordinance that protects the safety and welfare
and quiet enjoyment of residents throughout Butte County."

Wahl also rejected Mackenzie's suggestion that the supervisors'
actions were disrespectful to voters ("I don't see it that way at
all," he said) and overly restrictive.

"For some folks it probably will be; for others I don't think it is,"
he said.

Mackenzie's predictions for a possible legal battle have partly played
out recently in nearby Nevada County. On July 27, Nevada County
Superior Court Judge Sean Dowling ruled that the county couldn't
enforce the prohibition of collectives.

The ruling resulted from an injunction filed by Americans for Safe
Access after that county's board of supervisors voted 4-1 May 8 to
adopt two ordinances regulating indoor and outdoor
cultivation.

"The Court recognizes that plaintiffs suffer various illnesses, and
that their request for relief implicates not only their right to live
comfortably, but also their basic human dignity," Dowling's ruling
read in part.

"The Court also acknowledges that California recognizes marijuana as
an effective treatment for individuals like the plaintiffs ... By
democratic process, the cultivation, possession and use of medical
marijuana has been sanctioned, supported and immunized from state
criminal prosecution."
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