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Jason Browne et al v. County of Tehama et al

February 6, 2013


APPEAL from a judgment of the Superior Court of Tehama County, Richard Scheuler, Judge. (Super. Ct. No. CI63676)

The opinion of the court was delivered by: Duarte , J.



In recent years, there has been considerable litigation over the regulation, and in some cases the outright ban, of medical marijuana dispensaries. (See, e.g., City of Riverside v. Inland Empire Patient's Health & Wellness Center, Inc. (2011) formerly at 200 Cal.App.4th 885, review granted Jan. 18, 2012, S198638; City of Lake Forest v. Evergreen Holistic Collective (2012) formerly at 203 Cal.App.4th 1413, review granted May 16, 2012, S201454.) This case, which comes from a rural county, involves the county's attempt to regulate the cultivation of medical marijuana rather than its distribution.

In response to concerns about the unregulated cultivation of marijuana in Tehama County, the Board of Supervisors of Tehama County passed Ordinance No. 1936 regulating marijuana cultivation (the Ordinance). Petitioners, a group of individuals who use medical marijuana and are "qualified patients,"*fn1 petitioned for a writ of mandate or prohibition "to set aside and withdraw and rescind" the Ordinance. They asserted the Ordinance was unconstitutional on its face because it conflicted with the Compassionate Use Act and the Medical Marijuana Program and invaded their right to privacy. The petition sought a judicial declaration that the Ordinance was unconstitutional.

Defendants, the County of Tehama, the County's Board of Supervisors, and entities sued as "the Tehama County Department of Planning, Building and Code Enforcement" (hereafter collectively the County), demurred, contending the petition did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer without leave to amend and dismissed the petition.

Petitioners appeal. They contend the trial court abused its discretion in sustaining the demurrer. They contend the Ordinance is unconstitutional because it impermissibly amends the Compassionate Use Act and conflicts with the Medical Marijuana Program by imposing restrictions, and in some cases a ban, on the right to cultivate marijuana for medical purposes.

As we explain, the premise of petitioners' argument is flawed. Neither the Compassionate Use Act nor the Medical Marijuana Program grants petitioners, or anyone for that matter, an unfettered right to cultivate marijuana for medical purposes. Accordingly, the regulation of cultivation of medical marijuana does not conflict with either statute. Further, petitioners' argument that the Ordinance constitutes a complete ban on cultivating medical marijuana for certain individuals fails. Nothing in the Ordinance bans the cultivation of medical marijuana outright. Petitioners raise a facial challenge to the Ordinance and have failed to plead that its provisions ban cultivation of medical marijuana in all or most circumstances. Accordingly, we shall affirm the judgment.


The Compassionate Use Act

In 1996, California voters adopted Proposition 215, the Compassionate Use Act (CUA) (Health & Saf. Code, § 11362.5).*fn2 The CUA is intended to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana". . . ; "ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction;" and "encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." (§ 11362.5(b)(1)(A)-(C).)

Rather than granting a blanket right to use marijuana for medical purposes, the CUA only immunizes specific persons from prosecution under two sections of the Health and Safety Code. Thus, the CUA grants only "a limited immunity from prosecution." (People v. Mower (2002) 28 Cal.4th 457, 470.) The CUA provides: "Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." (§ 11362.5, subd. (d).) Thus, the CUA creates a limited defense to certain crimes, "not a constitutional right to obtain marijuana." (People v. Urziceanu (2005) 132 Cal.App.4th 747, 774 (Urziceanu).)

Despite the language of the findings and declarations evincing an intent to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes," the CUA did not create "a broad right to use marijuana without hindrance or inconvenience." (Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 928 (Ross).) "To the contrary, the only 'right' to obtain and use marijuana created by the Compassionate Use Act is the right of 'a patient, or . . . a patient's primary caregiver, [to] possess[ ] or cultivate[ ] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician' without thereby becoming subject to punishment under sections 11357 and 11358 of the Health and Safety Code." (Ross, supra, 42 Cal.4th at p. 929.)

Significantly, the CUA also provides that, "[n]othing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for non-medical purposes." (§ 11362.5, subd. (b)(2).)

The Medical Marijuana Program

In 2003, the Legislature passed the Medical Marijuana Program (MMP) (§ 11362.7 et seq.). The Legislature passed the MMP, in part, to clarify the scope of the CUA and promote its uniform application "among the counties within the state." (Stats. 2003, ch. 875, § 1.) The MMP created a voluntary program for the issuance of identification cards to qualified patients and primary caregivers. (§ 11362.71.)

The MMP also "immunizes from prosecution a range of conduct ancillary to the provision of medical marijuana to qualified patients. [Citation.]" (People v. Mentch (2008) 45 Cal.4th 274, 290 (Mentch).) "Section 11362.765 accords qualified patients, primary caregivers, and holders of valid identification cards, an affirmative defense to certain enumerated penal sanctions that would otherwise apply to transporting, processing, administering, or giving away marijuana to qualified persons for medical use." (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1171 (Kruse).) The MMP provides that specified individuals "shall not be subject, on that sole basis, to criminal liability" under sections 11357 [possession], 11358 [cultivation], 11359 [possession for sale], 11366 [maintaining location for selling, giving away or using controlled substances], 11366.5 [managing location for manufacture or storage of controlled substance], or 11570 ["drug den" abatement law]. (§ 11362.765, subd. (a), italics added.) This immunity extends to those "who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes." (§ 11362.775.) The MMP does not, however, "confer on qualified patients and their caregivers the unfettered right to cultivate or dispense marijuana anywhere they choose." (County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 869 (Hill).)

While the MMP recognizes, by granting limited immunity, the establishment of collectives for the cultivation of medical marijuana, a 2010 amendment to the MMP restricts the location of medical marijuana cooperatives, collectives or dispensaries to more than 600 feet from a school and permits a city or county to adopt ordinances to further restrict the location and establishment of such cooperatives, collectives or dispensaries. (§ 11362.768, subds. (b), (f) & (g).)

The MMP specifies the maximum amount of marijuana a patient or caregiver may legally possess or cultivate for personal medical use (no more than eight ounces of dried marijuana or more than six mature or 12 immature marijuana plants per qualified patient), authorizes physicians to prescribe greater amounts in certain instances, and authorizes cities and counties to establish guidelines that exceed the specified base amounts.*fn3 (§ 11362.77, subds. (a), (b), & (c).)

Significantly, the MMP provides that it does not "prevent a city or other local governing body from adopting or enforcing" "laws consistent with this article." (§ 11362.83, subd. (c).) A very recent amendment of the MMP, Assembly Bill 1300, expressly permits adoption and enforcement of "local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective." (§ 11362.83, subds. (a) & (b).)

The Ordinance

In response to citizen concerns, the County enacted the Ordinance "to establish reasonable regulations upon the manner in which marijuana may be cultivated, including restrictions on the amount of marijuana that may be individually, collectively, or cooperatively cultivated in any location or premises, in order to protect the public health, safety, and welfare in Tehama County." (Tehama County Code (TCC) § 9.06.020, subd. (J).) The findings supporting the Ordinance note that, "Comprehensive civil regulation of premises used for marijuana cultivation is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards. . . ." (Id., subd. (G).)

The Ordinance declares it a nuisance to cultivate more than a certain number of plants depending on the size of the premises.*fn4 The Ordinance also declares it a nuisance to cultivate any amount of marijuana within 1000 feet of any school, school bus stop, school evacuation site, church, park, child care center, or youth-oriented facility. (TCC, § 9.06.040, subd. (B).)

Anyone cultivating marijuana is required to register the premises with the Tehama County Health Service Agency, disclosing the name of each owner or lessee of the premises and of each qualified patient or primary caregiver participating in the cultivation, a copy of a current valid medical marijuana recommendation or State-issued medical marijuana card for each qualified patient, and the number of marijuana plants cultivated on the property. A fee for registration may be established. (TCC, § 9.06.040, subd. (C)(1).) If the person cultivating marijuana is not the owner of the premises, the Ordinance requires a notarized letter of consent from the owner. (Id., subd. (C)(2).)

All outdoor marijuana grows must be enclosed by an opaque fence of at least six feet in height. (TCC, § 9.06.040, subd. (C)(3).) The Ordinance establishes setback requirements for each building or outdoor area where marijuana is grown.*fn5 Any failure to comply with the ...

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