Tehama County's Ordinance Governing Cultivation of Medical Marijuana not in Conflict With Either Compassionate Use Act or Medical Marijuana Program

The Third DCA has held that a Tehama County ordinance regulating the cultivation of medical marijuana was not facially invalid as conflicting with either the Compassionate Use Act or the Medical Marijuana Program.

To address citizen concerns about the unregulated cultivation of marijuana, the Board of Supervisors of Tehama County passed Ordinance No. 1936. Among other things, the Ordinance declared it a nuisance to cultivate more than a certain number of marijuana plants, depending upon premises size; declared it a nuisance to cultivate plants within 1,000 fee of certain areas, such as schools and churches; required marijuana cultivators to register with the County; and imposed requirements for outdoor growers, such as the installation of opaque fencing around growing areas and adherence to setback requirements.

Jason Browne and other individuals (collectively, Brown) who used medical marijuana petitioned for a writ of mandate or prohibition, contending the Ordinance was unconstitutional on its face because it conflicted with the Compassionate Use Act (CUA) and the Medical Marijuana Program (MMP). The trial court sustained the County’s demurrer without leave to amend and dismissed the petition.

Browne appealed, contending the Ordinance was unconstitutional because it impermissibly amended the CUA and conflicted with the MMP by imposing restrictions, and in some cases a ban, on the right to cultivate marijuana for medical purposes.

The court of appeal affirmed, holding that Browne failed to demonstrate that the Ordinance was invalid on its face.

The court of appeal noted that Browne's challenge to the Ordinance was facial rather than as applied. The precise standard governing facial challenges has been disputed within the court, but under any of the applicable tests, whether lenient or strict, in this instance the result was the same.

First, the Ordinance was not unconstitutional as an unlawful amendment of the CUA without the consent of the electors. Only the Legislature may amend a state statute, the court explained, rendering Browne's argument inapposite.

Nor was the Ordinance unconstitutional as in conflict with the MMP. Case authority has upheld local regulations regarding, for instance, medical marijuana dispensaries, including local regulations with restrictions similar to those at issue here. The MMP has been amended subsequent to such decisions, signaling legislative approval of the decisions and of local regulation of the use of medical marijuana.

There were no similar amendments expressly on the issue of local regulation of medical marijuana cultivation, so the court considered specifically whether the Ordinance should be considered invalid as preempted by the CUA and the MMP.

Browne's argument that the Ordinance fatally conflicted with the CUA suffered a fundamental flaw arising from his incorrect view that the CUA created or granted unrestricted rights. The CUA does not grant every qualified patient the right to cultivate marijuana for medical use within their home, at any privately owned residence or location. The only “right” created by the CUA is the right of a qualified patient or his primary caregiver to possess or cultivate marijuana for personal medical purposes, upon recommendation or approval of a physician, without becoming subject to criminal punishment. Because the CUA does not create a right to cultivate medical marijuana, the court said, restrictions on such cultivation do not conflict with the CUA.

The court observed that the CUA does not expressly preempt the regulation of cultivation amounts and location of medical marijuana on particular parcels of property. Further, and simply put, for its part the Ordinance does not prohibit the cultivation of medical marijuana by qualified patients.

Browne was flatly wrong when he repeatedly characterized the Ordinance as a complete ban on the cultivation of medical marijuana. Instead, it merely regulated and restricted growing locations and amounts that could be grown on particular parcels. Such regulations have been routinely upheld, the court said. Thus Browne entiely failed to show that the Ordinance was in conflict with the CUA as part of their facial challenge.

The Ordinance did not run afoul of the MMP. That law permits local governing bodies to enact laws that are consistent with the MMP, and case authority clearly established that “consistent with” did not mean “the same as.” That is, local laws are not constrained to impose only those limitations already set out in the MMP.

Browne was likewise incorrect in arguing that the MMP preempted the County from using nuisance abatement law to bar the use of property for medical marijuana purposes. Browne cited MMP sections that provided qualified patients and their primary caregivers, as well as those who associate to cultivate marijuana for medical purposes, immunity from criminal liability and sanctions. However, the limited statutory immunity from prosecution afforded did not prevent application of the Ordinance’s nuisance provisions. None of the activities regulated in that way fell within the scope of the acts protected by the limited statutory immunity from prosecution.

Browne v. Tehama County; __ Cal.App.4th __ (Feb. 2, 2013)