Pubdate: Fri, 15 May 2015
Source: Chico Enterprise-Record (CA)
Copyright: 2015 Chico Enterprise-Record
Contact:  http://www.chicoer.com/
Details: http://www.mapinc.org/media/861
Note: Letters from newspaper's circulation area receive publishing priority
Author: Ryan Olson

JUDGE DISMISSES LAWSUIT AGAINST BUTTE COUNTY MEASURE REGULATING SIZE 
OF MARIJUANA GROWS

Chico - A judge has dismissed a lawsuit filed by four medical 
marijuana patients against Butte County over Measure A, which 
regulates the physical size of cannabis grows.

On Wednesday, a Butte County Superior Court judge sustained the 
county's demurrer challenging the sufficiency of the case, according 
to county counsel Bruce Alpert.

He said the judge dismissed the case without the ability to further 
amend the complaint.

"We're very pleased with the court's decision," Alpert said. "We felt 
we were on solid legal ground."

The plaintiffs' attorney, Scot Candell of San Rafael, said he was 
surprised by the judge's ruling because the law is clear about how a 
judge's interpretation of a voter initiative like Measure A must be 
based on the language of the initiative itself.

In February, plaintiffs Donald Ehrsam, Gina Endler, Douglas Gunning 
and Raymond Sperry filed suit, alleging that Measure A was unlawful 
and prevents them and some family members from obtaining sufficient 
cannabis to meet their medical needs.

The county first sought a demurrer to dismiss the case because the 
complaint didn't specify any cause of action. That was deemed moot 
after the plaintiffs filed an amended complaint.

For the second demurrer, Candell said one issue was that Measure A 
violates residents' equal protection rights. He said the judge sided 
with the county's argument that everyone was treated equally because 
each patient can grow in areas up to 50 square feet.

Candell said he wanted to review a transcript of the proceeding. He 
suggested there may be no upper limit on how many patients may grow 
individual 50-square-foot plots on a property.

Alpert said the plaintiffs had suggested a very tortured 
understanding of the measure, which was approved by 60 percent of 
voters last year. Individual patients may grow on a 50-square-foot 
plot, but the total size of the grow on a property is limited by parcel size.

In unincorporated Butte County, properties of a half-acre or less may 
have an indoor growing area of up to 120 square feet. Indoor or 
outdoor growing areas may be allowed on larger properties, ranging 
from 50 square feet for parcels less than 5 acres to 150 square feet 
for lots 10 acres or larger.

Candell said the plaintiffs were still considering their options 
following Wednesday's ruling. He said it is possible to seek an 
appeal with the 3rd District Court of Appeal, but there may be issues 
regarding how the county is enforcing Measure A.

Candell said he's heard complaints regarding enforcement, including 
officers coming on to properties without a warrant. He said that 
could be a federal constitutional issue.

Alpert said the county is vigorously enforcing the ordinance. 
Regarding searches, he said the county is obtaining inspection 
warrants, which are granted by a judge after considering probable cause.

The total number of Measure A cases has increased through the spring. 
On May 5, development services director Tim Snellings told the county 
Board of Supervisors that there were 210 total cases as of May 1, 
mostly in the Oroville area. That is a significant increase from the 
74 cases before April 7.

About 10 percent of cases have resulted in citations, but about 60 
percent of the cases are inactive.

Last year, the county received 176 complaints.

According to a code enforcement officer, issues at sites include 
facilities that don't have required permits, including greenhouses, 
structures, experimental water wells and extension cords. Some 
growers also don't have a notarized letter from the property owner 
granting permission to grow on the site.
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MAP posted-by: Jay Bergstrom