Pubdate: Sat, 15 Feb 2014
Source: Bakersfield Californian, The (CA)
Copyright: 2014 The Bakersfield Californian
Contact:  http://www.bakersfield.com/
Details: http://www.mapinc.org/media/36
Author: James Burger

JUDGE THROWS OUT MEDICAL MARIJUANA RESTRICTIONS

Kern County's battle with medical marijuana collectives and 
cooperatives took a wild turn Friday.

Superior Court Judge Kenneth Twisselman invalidated Measure G -- the 
2012 voter-approved ordinance that limits where storefront marijuana 
operations in unincorporated Kern County can locate.

But county lawyers said that actually clears the way for Kern to 
eliminate all storefront marijuana shops in its jurisdiction, setting 
up what will likely be another round of conflict between the county 
and collectives over how medical marijuana patients obtain the drug.

Technically speaking, Kern County lost its legal battle to preserve 
Measure G on environmental grounds Friday.

Measure G states that in unincorporated Kern, medical marijuana 
collectives and cooperatives can only operate on industrial land and 
must be at least a mile from schools, day care centers, churches, 
public parks, and other collectives and cooperatives. It does not 
apply to incorporated cities in Kern; Bakersfield, for example, has 
its own restrictions.

In a case brought by a collective, Twisselman ruled that county 
officials failed to properly consider the environmental impacts of 
Measure G when Kern County supervisors sent the ordinance to voters in 2012.

He said the California Environmental Quality Act compelled the county 
to consider whether its actions might cause more pollution by forcing 
patients to drive further to get their medicine and by moving 
loitering, littering and other nuisances from one location to another.

Attorney Mike Hogan argued passionately on behalf of Kern County that 
Measure G opponents never raised environmental concerns when the 
county was pondering the creation of the ordinance and that the 
ordinance -- by its very existence -- removed environmental impacts.

But Twisselman rejected his arguments, saying that, in the limited 
context of this case, the county was obligated to seek out and 
investigate environmental impacts even if they were not raised by opponents.

And he said the county simply could not prove it had done that.

But county attorneys, in the hallway after Twisselman ordered the 
ordinance invalidated, said their loss was a practical blow to 
medical marijuana collectives and cooperatives.

"Theres no winner in this action," said Deputy Kern County Counsel 
Charles Collins.

A BAN, IN FACT

Collins said when Twisselman's order takes effect, all medical 
marijuana collectives and cooperatives become immediately illegal in 
unincorporated areas.

It's true, he said, that shops used to be permitted there and at 
least 20 were in operation. But when the Board of Supervisors voted 
to send Measure G to the voters two years ago, they also voted to 
eliminate all past ordinances that allowed collectives to set up 
storefront shops, Collins said.

He doesn't like the word "ban" because that implies the county has 
taken active action to outlaw collectives and cooperatives. But, he 
said, "the county intends to enforce its zoning ordinance."

Deputy County Counsel Devin Brown, who wrote Measure G, said there 
currently are five collectives operating in county areas -- most in 
violation of Measure G.

Long Beach attorney Jamie Hall represents T.C.E.F. Inc., the 
cooperative that sued to block Measure G. He said he's heard the 
county say collectives would become outlaws if he won, but has yet to 
see evidence supporting it.

But Hall said Friday's win throws into question all previous 
enforcement actions the county has taken to close down collectives 
and cooperatives. If Measure G disappears, so does the enforcement 
process the county used against the collectives, he said.

Collins acknowledged the county will need to address Hall's question.

"We're looking at it," he said.

NEXT STEPS

Hall said the legal ball is now in the county's court.

Either the county can go back to the drawing board and do a full 
environmental analysis of Measure G before returning it to voters or 
appeal its loss to a higher court.

Collins said the county will have to consider its options.

But has the county, in a weird way, worked its way around to a result 
that it preferred more than Measure G?

Supervisors only pushed Measure G to the voters after an attempt to 
ban all collectives and cooperatives was blocked by a 
signature-gathering drive.

Forced to ask voters to ban dispensaries -- or offer up Measure G -- 
supervisors voted to pursue the latter. Now all collectives and 
cooperatives are illegal in the county, Kern's lawyers say.

Is the county happy about that?

Deputy County Counsel Brown bristled at the thought.

Kern County fought hard, he said, waving his arm toward Twisselman's 
courtroom, to defend Measure G.
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MAP posted-by: Jay Bergstrom