LAKEPORT, Calif. – A judge on Thursday continued a hearing on several medical marijuana patients’ request for a temporary restraining order against the county for its interim urgency marijuana cultivation ordinance.
Judge David Herrick found there was not sufficient evidence of harm submitted in the filings to justify granting the temporary restraining order. However, he agreed to continue the matter until 3:30 p.m. Friday, July 27, in order to let the group’s attorney provide more proof.
San Francisco attorney Joseph Elford – who is chief legal counsel for Americans for Safe Access but is acting separately from the group in this action – noticed the county on Wednesday of the hearing to request the temporary restraining order on the ordinance, which was passed on Monday in a 4-1 vote by the Board of Supervisors.
The board’s ordinance allows for up to six plants to be grown outdoors on a half acre or less, 12 plants with a 75-foot setback on parcels of half an acre to one acre, 18 plants and a 150-foot setback on parcels one to five acres in size, 36 plants and a minimum 150 foot setback on five- to 40-acre parcels, and a maximum of 48 plants on parcels 40 acres and larger.
The ordinance, which took effect July 9, lasts for 45 days, at which point it may be extended.
Elford had told Lake County News in a Wednesday interview that he was representing three anonymous marijuana patients – two men and one woman.
However, when Elford filed the request for the temporary restraining order against the county and Sheriff Frank Rivero ahead of the hearing on Thursday, included was the name of a fourth plaintiff – Don Merrill.
Merrill is a member of the Lake County Citizens for Responsible Regulation, which was instrumental in getting the Measure D marijuana cultivation initiative on the ballot June 5, when it was overwhelmingly defeated.
He also was appointed by the Board of Supervisors to sit on its marijuana cultivation advisory committee. It was that committee’s proposed plant numbers – with some alterations – that the board had accepted Monday.
On Thursday, ahead of the hearing, the Board of Supervisors notified marijuana cultivation advisory committee members that their upcoming meeting on Monday, July 16, was canceled, and no further meetings are scheduled.
Elford’s filing – which only included information about Merrill and a John Doe marijuana patient who suffers from lung cancer – explained that Merrill, a qualified medical marijuana patient, grows 50 plants for himself and for qualified members of his collective on a property larger than 10 acres.
Before the hearing, Deputy County Counsel Bob Bridges – who along with Community Development Department Director Rick Coel represented the county at the hearing – presented Elford with a written opposition to his motion minutes before the hearing.
Bridges had only had a few hours to craft the four-page response, which Elford said he wasn’t expecting.
“Well, this is an important thing,” Bridges said.
Defense or entitlement?
Herrick arrived in the courtroom a short time later and the half-hour hearing began just before 4:45 p.m.
Looking on during the hearing were Board Chair Rob Brown – who had been the lone dissenter in the vote on the ordinance, concerned that the plant numbers were too high – and County Counsel Anita Grant.
In his arguments, Bridges pointed out that no affidavits or declarations had been submitted to support the temporary restraining order request.
“We think that casts some doubt right off the bat on the validity of the basis of the request,” he said.
When the Board of Supervisors adopted the ordinance, Bridges said they made important findings about the potential for wildland fires, sanitation issues, brandishing firearms, wildlife poaching, and groundwater and stormwater issues that affect everyone living in Lake County.
“We think the Board of Supervisors made huge findings on some very, very serious matters of public concern,” he said, asking that the court give those findings great weight.
Bridges said the county’s zoning ordinance is presumed to be both valid and constitutional, with the burden on the plaintiffs. “We would like the court to also keep that in mind.”
The Compassionate Use Act and the state’s medical marijuana program offer a defense to certain criminal conduct under California’s Health and Safety Code, Bridges argued.
Regarding Merrill, Bridges said the documents don’t state that Merrill is a primary caregiver, and thus Bridges suggested Merrill is an illegal grower. Bridges said the court shouldn’t use its power to support someone involved in illegal activity, “which Mr. Merrill appears to be engaging in.”
No matter what the activity is, it must comply with the zoning ordinances, with Bridges handing Judge Herrick two recent cases that upheld his argument and establish that the Compassionate Use Act and the state marijuana program don’t preempt local zoning.
He said the law allows the county to adopt a zoning ordinance and provide criminal penalties for noncompliance.
“We very, very much believe what we've done is legal,” Bridges said.
The belief by medical marijuana patients that they can cultivate as much marijuana as they want has resulted in “ludicrous” situations, said Bridges.
He also suggested that the Lake County Zoning Ordinance didn’t allow for marijuana cultivation until the board took action by approving the ordinance. “Any grows that existed previously to this last week don't have any vested rights, they're illegal grows,” Bridges said.
Elford said his clients were only asking to maintain the status quo, and seeking the temporary restraining order until a hearing on a permanent injunction could be held.
“We just don't want the sheriff to go out and destroy peoples’ property, take their medicine, in a way that would cause irreparable harm in the meantime,” he said.
Responding to Bridges’ statements, Elford said, “This is not illegal activity under California law.”
He said the Compassionate Use Act allows patients to cultivate and possess whatever they need, and California law takes precedence over Lake County law.
He questioned whether a locality can seek to change state law under the guise of its zoning ordinance. In addition, just because the supervisors made findings about an emergency didn’t mean those findings were valid.
“These patients right now are understandably scared,” he said.
Bridges challenged Elford’s argument that the Compassionate Use Act entitled people to use medical marijuana. He said that the act offered a criminal defense. “It’s not an entitlement.”
Judge Herrick asked if case law had established that medical marijuana use actually was a legal activity. Bridges said it requires that users comply with zoning.
“Doesn’t it extend it a little bit beyond a criminal defense?” Herrick asked.
Bridges said the courts are edging that way, but he was relying on the legislation’s language.
He told the judge that if Merrill had a problem with the plant numbers, he can grow indoors, in a greenhouse or purchase the drug from a dispensary.
“This is an incredible amount of marijuana that’s been authorized by the board,” Bridges said. “There’s no harm done to anyone here. There's lots of options.”
Concerns over lack of proof
Herrick said he didn’t have proof of the potential harm to patients before a hearing on the permanent injunction was held in 30 to 60 days.
“I’m not seeing how limiting the number of plants is going to irreparably harm anyone between now and then,” he said.
Elford said his clients were in fear of criminal enforcement as well as having the sheriff come and take their plants.
“I don't have evidence to support the conclusion that anybody, including the plaintiff, is going to be irreparably harmed in the next 30 to 60 days,” Herrick said. “That’s my point.”
Elford said his clients are serious patients without unlimited resources, and it’s “prohibitively expensive” for one of his clients to grow indoors. Neither can the man afford to buy from a dispensary.
Herrick replied that a declaration should be filed by Elford’s clients explaining why they need more than six plants between now and a hearing in 60 days.
Herrick said of the board’s interim ordinance, “It’s a presumptively lawful exercise of governmental authority.”
Regarding the need to provide more evidence and information, Elford said one of his John Doe clients was reluctant to be named.
“There are always tensions in the law. I understand that fully,” said Herrick.
Herrick said there wasn’t a sufficient showing of damage, and he could either deny the request and set a preliminary injunction hearing or continue the temporary restraining order hearing. Elford preferred the latter, but continued to worry about what enforcement efforts might occur before a decision was made.
“Our planning department doesn’t use gestapo tactics,” Bridges said, explaining that compliance is the goal and the agency gives warnings before taking action.
Elford wanted to know if enforcement of the 45-day ordinance would be occurring within the next few weeks.
Bridges – who said that by that time he had only been aware for two hours that the sheriff had been named in the suit – replied, “I have no idea what the sheriff is going to do,” but said Coel explained that his staff always begins actions with warnings.
That was the rub, said Elford. “We don’t know what the sheriff is going to do.” If deputies were to start pulling plants, it would result in irreparable harm, he argued.
“It’s not necessarily so,” replied Herrick.
While the July 27 date was set to continue the hearing, by the end of the court appearance a preliminary injunction hearing had not yet been set.
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