1 2 3 4 5 6 7 8 9 10 11 12 13 14 FILED Super State of Ca ifornia County of Nevada IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF NEVADA AMERICANS FOR SAFE ACCESS NEVADA COUNTY CHAPTER, et ai, Plaintiffs, vs. CASE NO.: 78691 RULING ON ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION 15 De endants, COUNTY OF NEVADA, et ai, 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs move for a preliminary injunction to prohibit the enforcement of Defendant's newly enacted urgency measure (Nevada County Ordinance No. 2349) regulating certain aspects of the cultivation of marijuana. The matter having been argued and submitted, the Court rules as follows: First, it bears repeating the Court recognizes that plaintiffs suffer various illnesses, and that their request for relief implicates not only their right to live comfortably, but also their basic human dignity. The Court also acknowledges that California recognizes marijuana as an effective treatment for individuals like the plaintiffs. Secondly, the Court observes that lawsuits typically address conflict arising from competing interests. This litigation is no different. By democratic process, the cultivation, possession and use of medical marijuana has been sanctioned, supported and immunized from state criminal prosecution. The same democratic process created a system of government by
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FILED Super
State of Ca ifornia County of Nevada
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF NEVADA
AMERICANS FOR SAFE ACCESS NEVADA COUNTY CHAPTER, et ai,
Plaintiffs,
vs.
CASE NO.: 78691
RULING ON ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
15 De endants, II---------------------~~~~
COUNTY OF NEVADA, et ai,
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Plaintiffs move for a preliminary injunction to prohibit the enforcement of Defendant's
newly enacted urgency measure (Nevada County Ordinance No. 2349) regulating certain
aspects of the cultivation of marijuana. The matter having been argued and submitted, the
Court rules as follows:
First, it bears repeating the Court recognizes that plaintiffs suffer various illnesses, and
that their request for relief implicates not only their right to live comfortably, but also their
basic human dignity. The Court also acknowledges that California recognizes marijuana as an
effective treatment for individuals like the plaintiffs.
Secondly, the Court observes that lawsuits typically address conflict arising from
competing interests. This litigation is no different. By democratic process, the cultivation,
possession and use of medical marijuana has been sanctioned, supported and immunized from
state criminal prosecution. The same democratic process created a system of government by
1 which the Nevada County Board of Supervisors has been vested with the authority to enact
2 regulations and the responsibility to protect the health, safety and welfare of the general
3 public. Nevada County Ordinance No. 2349 acknowledges medical marijuana as a lawful
4 right under state law, but also identifies numerous competing public interests, including
5 protection of the public from serious crime, protection of minors, and the protection of
6 property owners in the peaceful enjoyment of their property, free of odors associated with
7 medical marijuana cultivation. Plaintiffs, on the other hand, contend that the ordinance
8 impinges on state guaranteed rights under the Compassionate Use Act, Medical Marijuana
9 Program and companion legislation. Therein the issues are joined.
10 Thirdly, the Court affirms that it is the rule of law that governs court decision making.
11 In every civil and criminal jury trial, judges instruct jurors that "You must follow the law .... "
12 and "You must not let bias, sympathy, prejudice, or public opinion influence your decision."
13 CACI Jury Instruction #5000; CalCrim Jury Instruction #200. These two fundamental
14 principles of our justice system apply equally to judges sitting without a jury.
15 For the reasons state below, the Court grants the Preliminary Injunction in part and
16 denies it in part.
17 1. To the extent that Ordinance #2349, Section G-IV 5.4 (C) and (D) prevents two or
18 more individuals from different residences, or two or more primary caregivers from different
19 residences, or any combination of individuals and primary caregivers from different
20 residences, from cultivating marijuana collectively on a single legal parcel, and in conformity
21 with the conditions and limitations otherwise required by the ordinance, County may not
22 enforce the ordinance.1
23 2. In all other respects, the request for Preliminary Injunction is denied.
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27 1 This point is conceded by Connty. Connty's Supplemental Brieffiled May 29,2012, page 2, lines 16-19.
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1 PLAINTIFFS
2 Plaintiff Patricia Smith is the president of Plaintiff Grassroots Solutions (Grassroots), a
3 California non-profit mutual benefit corporation based in Hollywood, California, formed for
4 the purpose of facilitating the collective cultivation of medical marijuana for its 15 member
5 patients who have serious and/or debilitating medical conditions. Members depend on
6 Grassroots to supply them regularly and "on time" with their medical marijuana.
7 Ms. Smith is also the president of the Nevada County Chapter of Plaintiff Americans
8 for Safe Access (ASA), an association of over 250 medical marijuana patients and primary
9 caregivers, some of whom are part of medical marijuana collectives. ASA is based in
10 Oakland, California. Members of ASA also have serious and/or debilitating medical
11 conditions. The declarations are unclear as to what extent the membership of Grassroots and
12 ASA overlap.
13 Ms. Smith, while appearing in this action in her representative capacities, is also the
14 sole individual plaintiff, and holds her primary residence in the unincorporated area of Nevada
15 County.
16 The Court finds Plaintiffs have standing to bring the action.
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ENJOINING ENFORCEMENT OF ORDINANCES GENERALLY
An injunction typically will not be granted "[tlo prevent the execution of a public
statute, by officers of the law, for the public benefit" or "[tlo prevent the exercise of a public or
private office, in a lawful manner, by the person in possession." (Civ. Code, § 3423; Code Civ.
Proc., § 526.) While these general strictures do not preclude the issuance of preliminary
injunctive relief when the constitutionality of a statute or ordinance is challenged,
nevertheless, " .... trial courts should be extremely cautious ... to enjoin law enforcement
officials from enforcing an ordinance obviously approved and adopted by duly elected
representatives of the people for the purpose of promoting and protecting public morality prior
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1 to a trial on the merits." 7978 Corporation v. Pitchess (1974) 41 Cal.App.3d 42, 46, citing to
2 City of Santa Monica v. Superior Court, (1964) 231 Cal.App.2d 223, 226.)
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DEFINITIONS
As used in this Ruling, the following abbreviations and references are adopted:
Abbreviation
AG Guidelines
BOS
County
CUA
HSC
MMP
Ord.2349
OPs
Text
The California Attorney General's "Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use"
Nevada County Board of Supervisors
County of Nevada
Compassionate Use Act (H&S §11362.5)
Health and Safety Code
Medical Marijuana Program Act (H&S §11362.7 et seq.)
Nevada County Ordinance No. 2349
All persons and entities afforded protection under the CUA and specifically under HSC §§11362.765, 11362.775 and related California case law.
NEVADA COUNTY ORDINANCE NO. 2349
Ord. 2349 was enacted May 8, 2012 by the BOS as an urgency measure to address the
County's immediate concerns about the 2012 medical marijuana cultivation growing season.
Section G-IV 5.2 (0). Specifically, the BOS found that "there is an immediate need to provide
certainty and guidance to those who might choose to Cultivate Marijuana in Nevada County
and preserve the public peace, health and safety of Nevada County residents by regulating and
addressing the public nuisances associated with Medical Marijuana Cultivation."
By its terms, Ord. 2349 regulates the location and size of indoor and outdoor medical
marijuana cultivation, as to individual medical marijuana patients, primary caregivers and
collectives. Restrictions on cultivation impose setbacks from property lines, schools and other
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1 youth facilities. Other provisions impose security, visibility and construction standards which
2 include odor control, mold, sightlines, fencing and other cultivation requirements.
3 Ord. 2349 also includes provisions that relate to enforcement, including abatement and
4 summary abatement of nuisances. See Ord. 2349, Section G-IV 5.6 through Section G-IV
5 5.19, inclusive.
6 A copy of Ord. 2349 is appended hereto as Attachment A.
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HISTORICAL DEVELOPMENT OF MEDICAL MARUANA LAW
Several decisions chart the historical development of California's medical marijuana
law. See, i.e., People v. Kelly (2010) 47 Cal.4th 1008, Qualified Patients Assn. Et al. v. City
of Anaheim (2010) 187 Cal.AppAth 734, and People v. Colvin (2012) 203 Cal.AppAth 1029?
Seminal to this discussion is the CUA, passed in 1996 by the voters as Proposition 215,
the text of which is appended as Attachment B. As explained in Colvin, supra, p. 1035,
One purpose of the CUA was 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 in the treatment" of illnesses for which marijuana provides relief. (§ 11362.5, subd. (b )(I)(A); see also People v. Wright (2006) 40 Cal.4th 81, 89-90.) A second purpose was to ensure that patients and their primary caregivers who obtain and use medical marijuana are not subject to criminal prosecution or sanction. (§ 11362.5, subd. (b)(I)(B).) The CUA therefore provided that 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 a doctor's recommendation. (§ 11362.5, subd. (d).) The CUA thus provided a limited immunity from prosecution, including a defense at trial. (People v. Mower (2002) 28 CaiAth 457, 470.)
2 It is an understatement that this is a developing area of law. In addition to numerous cases presently in Courts of Appeal, significant local ordinance cases await decision in the California Supreme Court (i.e., City of Lake Forest v. Evergreen Holistic Collective (Fourth District, Division 3); Pack v. Superior Court (City of Long Beach) (Second District, Division 3); Traudt v. City of Dana Point (Fourth District, Division 3) and People v. G, Holistic (Fourth District, Division 2.) Indeed, the most recent cases coming out of two different divisions of the Second District Court of Appeal come to conflicting conclusions. See, 420 Caregivers. LLC v. City of Los Angeles, --- Cal.Rptr.3d ----, Cal.App. 2 Dis!., Jul. 03, 2012, as modified (JuI19, 2012) and County of Los Angeles v. Alternative Medicinal Cannabis Collective. --- Cal.Rptr.3d ----, Cal.App. 2 Dis!., Jul. 02, 2012.
1013, make clear that the CUA operates as a defense to state criminal prosecution, and that it
decriminalizes possession and cultivation for QPs. However, the CUA does not grant
immunity from arrest, nor is the CUA a legalization of marijuana, which remains a controlled
substance under federal law? Parenthetically, in November 2010 California voters declined to
expand marijuana protections to full legalization by rejecting Proposition 19. (53.5% "No"
vote.4 In Nevada County, the "No" vote was higher at 55.6%.5)
The CUA is silent on the specific amount of marijuana a qualified individual might
possess or cultivate; however, the Kelly decision observed that:
to:
... the CUA (does not) specify an amount of marijuana that a patient may possess or cultivate; it states instead that the marijuana possessed or cultivated must be for the patient's "personal medical purposes." (§ 11362.5, subd. (d), italics added.) An early decision construed this provision of the CUA as establishing "that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs." (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549, italics added (Trippet).
The CUA was followed by the MMP, enacted in 2003, with express legislative intent
1. Clarify the scope of the application of the CUA and facilitate the prompt
identification of qualified patients and their designated primary caregivers in order to avoid
unnecessary arrest and prosecution of these individuals and provide needed guidance to law
3 Federal law prohibits the possession and distribution of marijuana. 21 U.S.c. §§ 812, 841(a)(1), 844 There is no exception for medical marijuana. United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483,490.
4 The Court takes judicial notice on its own motion of the following: http://www.sos.ca.gov/elections/sov/2010-general!complete-sov.pdf.
5 The Court takes judicial notice on its own motion of the following: http://www.sos.ca.gov/elections/sov/2010-general!ssovlballot-measures-summary.pdf.
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1 2. Promote uniform and consistent application of the CUA among the state's counties.
2 (Stats. 2003, ch. 875, § 1, subd. (b )(2).
3 3. Enhance the access of patients and caregivers to medical marijuana through
5 Those portions of the MMP relevant to this decision are appended as Attachment C.
6 Consistent with the CUA, HSC §11362.765 of the MMP provides that individuals are
7 not subject, on the sole basis of their status as persons protected by the statute, to criminal
8 liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. Of note is
9 § 11570, which is a drug den private or public nuisance abatement law. That provision reads
10 as follows: "Every building or place used for the purpose of unlawfully selling, serving,
11 storing, keeping, manufacturing, or giving away any controlled substance, precursor, or analog
12 specified in this division, and every building or place wherein or upon which those acts take
13 place, is a nuisance which shall be. enjoined, abated, and prevented, and for which damages
14 may be recovered, whether it is a public or private nuisance." While §1l570 does not impose
15 criminal liability for which shielding might be necessary under the CUA, nonetheless the
16 CUNMMP have been interpreted as affording protection for QPs from governmental actions
17 premised upon nuisance. Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 868, 872
18 ("Although section 11570 does not contain criminal penalties, it is widely recognized as quasi-
19 criminal in nature. (Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734,
20 755.")
21 It is within the MMP, not the CUA, that one first finds mention of such terms as
22 medical marijuana "cooperative", "collective", "dispensary", "operator", "establishment", and
23 "provider". HSC §11362.768. The use of the terms "cooperative" and "collective" are an
24 implementation of the express legislative intent, above noted.
25 Other MMP provisions clarify some of the limits in the application of the CUA. For
26 example, HSC § 11362.678(b) imposes a 600 foot radius setback from schools for certain
27 activities, and §11362.678(f) provides that local jurisdictions can provide further restrictions
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on location or establishment of cooperatives, collectives and the like. HSC § 11362.79 in
effect prohibits the smoking of marijuana where smoking is prohibited by law, within 1,000
feet of schools and certain other facilities (unless within a residence), on a school bus, while in
a motor vehicle or while operating a boat.
One of these limiting provisions, HSC § 11362.77, attempted to impose quantity
limitations on the possession and cultivation of marijuana. This limitation was addressed in
the Kelly decision and found to be invalid. Specifically, Kelly, supra, 47 Cal.4th 1008, at p.
1049, held "To the extent section 11362.77 (together with its quantitative limitations)
impermissibly amends the CUA by burdening a defense that would be available pursuant to
that initiative statute, section 11362.77 is invalid under California Constitution article II,
section 10, subdivision (c)."
Still, other provisions specifically provide for city, county, or city and county
legislative control. See HSC §11362.768(f) & (g) [regulating the location or establishment of
a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider];
and HSC §11362.83, which reserves to local authority the right to enact any ordinance or
regulation not inconsistent with the CUNMMP. In particular, HSC §11362.83 states:
Nothing in this article shall prevent a city or other local governing body from adopting and enforcing any of the following:
(a) Adopting local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective.
(b) The civil and criminal enforcement of local ordinances described in subdivision (a).
(c) Enacting other laws consistent with this article.
Finally, the MMP directed the Attorney General to develop and adopt guidelines "to
ensure the security and nondiversion of marijuana grown for medical use by patients qualified
under the (CUA)." The AG Guidelines were issued in August 2008. While the Attorney
General's views are not binding on the Courts, they are entitled to considerable weight.
(Ereedom Newspapers. Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th
821,829.)
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1 The Legislature did not define the terms "collective", "collectively", "cooperative" or
2 "cooperatively" in the MMP. The AG Guidelines flesh this out by explaining that medical
3 marijuana patients or caregivers seeking to rely on §1l362.775 must organize themselves as a
4 cooperative or collective. "No business may call itself a 'cooperative' (or 'co-op') unless it is
5 properly organized and registered as such a corporation under the Corporations or Food and
6 Agricultural Code." (A.G. Guidelines, at p. 8; Corp. Code, § 12200 et seq.; Food & Agr. Code,
7 § 54001 et seq.)
8 The AG Guidelines further define a "collective" as "a business, farm, etc., jointly
9 owned and operated by the members of a group." (Guidelines, at p. 8.) Given this joint
10 ownership and operation requirement, "a collective should be an organization that merely
11 facilitates the collaborative efforts of patient and caregiver members -- including the allocation
12 of costs and revenues." (Ibid.)
13 The Guidelines also specify that distribution or sale to nonmembers is prohibited:
14 "State law allows primary caregivers to be reimbursed for certain services (including
15 marijuana cultivation), but nothing allows individuals or groups to sell or distribute marijuana
16 to non-members. Accordingly, a collective or cooperative may not distribute medical
17 marijuana to any person who is not a member in good standing of the organization."
18 (Guidelines, at p. 10.)
19 With the foregoing history in mind, the Court now turns to the issues presented.
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PREEMPTION ISSUES
Preemption issues may arise when a conflict exists as a result of local legislation if the
measure duplicates, contradicts, or enters an area fully occupied by general law, either
expressly or by legislative implication. (Action Apartment Assn., Inc. v. City of Santa Monica
(2007) 41 Cal.4th 1232, 1242.; City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153,
1168). As more fully explained in Kruse, supra, at pp. 1168-1169:
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"Whether state law preempts a local ordinance is a question of law that is subject to de novo review. [Citation.]" (Roble Vista Associates v. Bacon (2002) 97 Cal.App.4th 335, 339.) "The party claiming that general state law preempts a local ordinance has the burden of demonstrating preemption. [Citation.]" (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1149 mig Creek Lumber).)
"[T]he 'general principles governing state statutory preemption of local land use regulation are well settled .... ' [Citations.]" (Big Creek Lumber, supra, 38 Cal.4th at p. 1150.) Under article XI, section 7 of the California Constitution, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." "'If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.' [Citation.]" (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897 (Sherwin-Williams), quoting Candid Enterprises, Inc. v. Grossmont Union High School Dis!. (1985) 39 Cal.3d 878, 885.) There are three types of conflict that give rise to preemption: ""'A conflict exists if the local legislation "'duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.""" [Citations.]" (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242.)
"'[I]t is well settled that local regulation is invalid if it attempts to impose additional requirements in a field which is fully occupied by statute.' [Citation.] ,[LJocallegislation enters an area that is "fully occupied" by general law when the Legislature has expressly manifested its intent to "fully occupy" the area [citation], or when it has impliedly done so in light of one of the following indicia of intent: "(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the" locality [citations].' [Citation.]" (American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1252.)
'''[A]bsent a clear indication of preemptive intent from the Legislature,' we presume that local regulation 'in an area over which [the local government] traditionally has exercised control' is not preempted by state law. [Citation.]" (Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 242.) A local government's land use regulation is one such area. "[W]hen local government regulates in an area over which it traditionally exercised control, such as the location of particular land uses, California courts will presume, absent a clear indication of preemptive intent from the Legislature, that such regulation is not preempted by state statute. [Citation.]" (Big Creek Lumber, supra, 38 Cal.4th at p. 1149.)
Federal Preemption: Case law is conclusive that California's statutes are not
preempted by federal law, as they seek only to decriminalize certain conduct for the purposes
of state law. (Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 757;
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County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 811, 818, 825 -828
[holding federal law making marijuana illegal did not preempt the MMPA's identification card
program])
State Preemption: The CUA and MMP do not fully occupy the field of law relating to
medical marijuana.
Under article XI, section 7 of the California Constitution, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. " ....
Local ordinances enter an area that is fully occupied by state law when the Legislature has expressly manifested its intent to fully occupy the area or when it has impliedly done so. (City of Claremont v. Kruse, supra, 177 Cal.App.4th at p. 1169.) ... [S]ection 11362.83, a part of the Medical Marijuana Program, specifically states: "Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article." Los Angeles v. Hill, supra, 192 Cal.App.4th 861, 867.
Thus, section 11362.83 allows a county to regulate the certain aspects of medical
marijuana cultivation and location so long as those regulations are consistent with the
provisions of the Medical Marijuana Program. Additionally, HSC §11362.765(f) and (g)
further permit specific regulation of collectives. The fact that the MMP has its own limitations
concerning some subjects does not mean that Ord. 2349 is inconsistent with the MMP. For
example, in Hill, supra, it was argued that, by implication, Los Angeles County could not
regulate the location of medical marijuana dispensaries (MMD) as a nuisance (HSC §11570)
because HSC §11362.768(b) prohibited such activity within 600 feet of a school. The Second
District disagreed.
The limited statutory immunity from prosecution under the "drug den" abatement law provided by section 11362.775 does not prevent the County from applying its nuisance laws to MMD's that do not comply with its valid ordinances. The possession, dispensing, cultivation, or transportation of marijuana is ordinarily a crime under California law. (§§ 11357, 11359, 11360, 11361.) Under section 11570, any building or place used in the commission of those crimes is subject to abatement as a public or private nuisance. Section 11362.775 provides, however, that "[ q]ualified patients, persons with valid identification cards, and [their] designated primary caregivers ... who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section. .. 11570." fn. 5 By its terms, the statute exempts qualified patients and their primary caregivers (who
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collectively or cooperatively cultivate marijuana for medical purposes) from nuisance laws "solely on the basis of [the] fact" that they have associated collectively or cooperatively to cultivate marijuana for medical purposes. (Italics added.) The statute does not confer on qualified patients and their caregivers the unfettered right to cultivate or dispense marijuana anywhere they choose. The County's constitutional authority to regulate the particular manner and location in which a business may operate (Cal. Const., art. XI, § 7) is unaffected by section 11362.775. (Los Angeles v. Hill, supra, 192 Cal.AppAth 861,868-869. Emphasis added.)
The same reasoning applies here. The legislature (and/or the voting public) could have
specified that medical marijuana activities, such as cultivation, are guaranteed anywhere, in
any amount, or specified expressly permitted locations and amounts limited to reasonable
medical needs. Instead, the CVA and MMP contain no provisions specifying where and under
what conditions QPs and/or collectives may cultivate, the 600 foot school rule being the
exception. Plaintiffs cite no authority to the contrary.
LIKELIHOOD OF SUCCESS ON MERITS AND BALANCING HARM
The criteria for issuing a preliminary injunction is succinctly set forth in Common
Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 446-447, as follows:
The likelihood of success on the merits and the balance-of-harm analysis are 16 ordinarily "interrelated" factors in the decision whether to issue a preliminary
injunction. (King v. Meese, supra, 43 Cal.3d 1217; 1226; IT Corp. v. County of 17 Imperial (1983) 35 Cal.3d 63, 69 .... ) The presence or absence of each factor is
usually a matter of degree, and if the party seeking the injunction can make a 18 sufficiently strong showing of likelihood of success on the merits, the trial court
has discretion to issue the injunction notwithstanding that party's inability to 19 show that the balance of harms tips in his favor. (King v. Meese, supra, 43
Cal.3d at pp. 1227-1228 [dictum].) 20
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Where there is no likelihood that plaintiffs will prevail on their claim for specific
injunctive relief, a preliminary injunction may not issue. (Ibid.)
According to Plaintiffs the "crux" of their complaint is "that Ordinance 2349 contains
various provisions that violate California law and the California Constitution," further
explaining that "California law has established a framework to guarantee safe access to
medical marijuana for all Californians, a guarantee denied to m!,!dical marijuana patients
residing in Nevada County."
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1 While County does not dispute that a "framework" exists, Ord. 2349 acknowledges
2 and purports to operate within that framework. More specifically, generalized concepts of
3 ensuring safe access to medical marijuana give way to specific regulatory controls not in
4 conflict with the CVA and MMP. The inquiry, accordingly, if what specific violations of law
8 provides: "Nothing which is done or maintained under the express authority of a statute can
9 be deemed a nuisance."
10 One form of nuisance is a "drug den" as described in HSC §11570. However, the
11 MMP affords specific protection from sanctions based on HSC § 11570 as to individual QPs
12 (HSC §11362.765) and collectives/cooperatives (HSC §11362.775).
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1179:
However, Zacks, Inc. v. City of Sausalito (2008) 165 Cal.AppAth 1163 explained at p.
Courts have, however, circumscribed the exculpatory effect of Civil Code section 3482. (Vmjabedian v. City of Madera [(1977)] 20 Cal.3d 285, 291.) The statutory immunity is available only where the acts complained of are authorized by the express terms of the statute or permit under which the justification is made, . . . or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the Legislature contemplated the doing of the very act which occasions the injury. [Citation.] Courts must scrutinize the statutes in question to ascertain whether a legislative intent exists to sanction a nuisance. (Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 102.) (Jordan v. City of Santa Barbara (1996) 46 Cal.AppAth 1245, 1258.) (Interior quotes omitted.)
22 As noted in the preemptions discussion above, the CVNMMP framework contains no
23 express provisions (and, hence, no provisions which expressly conflict with Ord. 2349)
24 concerning residential zoning, size limitations for cultivation on particular parcels, fencing,
25 setbacks, sightlines, or landlord permission, as related to the activities of individual QPs
26 cultivating medical marijuana.
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1 A different result obtains with respect to collectives and cooperatives, which are
2 implicitly authorized by the MMP, but also the subject of specific regulation expressly
3 reserved to local jurisdictions. HSC §11362.775. Ord. 2349 Section G-IV 5.2 (1) states its
4 specific purpose, consistent with state law, is not to prohibit persons from collectively
5 exercising any right otherwise granted by state law. While Ord. 2349, Section G-IV 5.3 (M)
6 gives lip service to collectives and cooperatives, the operative provisions controlling nuisance
7 effectively eviscerate the concept. Section G-IV 5.4 (C) and (D) limit cultivation to members
8 of the same residential property. 6
9 Thus, per subsection (C), "Medical Marijuana Cultivation may be undertaken only by a
10 Qualified Patient who occupies a legal Residence on a Legal Parcel or Premises proposed for
11 Cultivation as his or her primary place of residence." By this plain language, two or more
12 qualified patients of different primary residences cannot jointly cultivate.
13 In subsection (D), "A Primary Caregiver may cultivate Medical Marijuana on behalf of
14 his or her Qualified Patient(s), but only at the Qualified Patient's primary Residence and/or at
15 the Primary Caregiver's primary Residence." Implicit in this provision is that if two or more
16 individual qualified patients of different residences want to collectively grow, they can only do
17 so by designating the residential occupant of the cultivation site as their "primary caregiver".
18 The term "primary caregiver" means the individual designated by the person exempted
19 under this section who has consistently assumed responsibility for the housing, health, or
20 safety of that person.7 HSC §§11362.5(e), 11362.7(d) and Ord. 2349 Section G-IV 5.3(R).
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6 Arguments could be made that the County could ban collective and cooperative cultivation altogether. since the MMP specifically permits local governments to regulate "the establishment" of such entities. HSC §11362 768 (1) and (g) and §11632.83 (a). The MMP is unclear whether the use ofthe term "establishment" is means the creation of a collective or refers to the manner of creation of the collective. These issues may be decided in one of the cases before our Supreme Court, previously mentioned in footnote #1. However, for the purposes of this decision, since one of the expressed intents of Ord. 2349 is to permit the exercise of rights collectively, it appears the BOS intent was to permit and not prohibit the establishment of collectives.
7 A patient may not confer primary caregiver status merely by designating a person as a primary caregiver, nor does a person qualify simply by providing medical marijuana to the patient. Rather, the person must show "a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single
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1 The ordinance prohibits those QPs who do not have, need or want a primary caregiver (a
2 person "who has consistently assumed responsibility for the housing, health, or safety" of the
3 qualified patient) from coming together collectively at single legal parcel that is not the
4 primary residence of all the QPs.
5 Case law recognizes collective growing as a key element of the MMP. People v.
6 Urziceanu (2005) 132 Cal.App.4th 747; People v. Hochanadel (2009) 176 Cal.App.4th 997,
7 1014. To the extent the use of a collective or cooperative format to cultivate is the sole basis8
8 for violation of Ord. 2349, it conflicts with Civil Code §3482 and cannot be enforced.
9 Therefore the lawsuit is likely to be successful on this ground.
10 Burdens:
11 Next, Plaintiffs argue that impermissible burdens are imposed because cultivation must
12 occur in an accessory structure "requiring substantial construction, materials and investment."
13 However, Ord. 2349 does not require an "accessory structure". Rather, it requires the
14 cultivation to be accessory, or ancillary, to a primary residence. Nothing prohibits cultivation
15 within the residence, an attached garage, sunroom or the like, provided the grow is otherwise
16 in compliance with the ordinance. Because the Court disagrees with the Plaintiffs' facial
17 interpretation of the ordinance, this does not appear to be a premise for likely success on the
18 merits.
19 Further, to the extent QPs would incur additional expenses to cultivate to meet the
20 various conditions of the ordinance, the CUNMMP contain no specific provisions to the
21 contrary or in conflict. Thus, in Los Angeles v. Hill, supra, 192 Cal.App.4th 861, 870, facts
22 concerning the imposition of an $11,500 conditional use permit fee were not sufficient to show
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pharmaceutical need." Q'eople v. Mentch (2008) 45 Ca1.4th 274, 283-286; People v. Rochanadel (2009) 176 Cal.AppAth 997, 1015-1016.)
8 That is to say, the cultivation conforms to zoning, fencing, odor control, parcel size limits, etc.
15
1 inconsistency with the CVA and MMP. Likewise, secure fencing, odor control, mold control,
2 setbacks and valid electrical and plumbing permits all appear to be facially reasonable
3 measures for their intended purposes.9 Plaintiffs are unlikely to succeed on this point.
4 Plaintiffs next contend that on residential lots of less than two acres,1O the permitted
5 cultivation plot size, single plane provisions and the 100 foot setback provisions impermissibly
6 burden personal and/or collective cultivation, in some cases "making it essentially impossible
7 to accommodate cultivation of marijuana for more than one person's needs." Further,
8 Plaintiffs argue, "owners of smaller properties will find it essentially impossible to sustain a
9 collective or cooperative. In a related argument, Plaintiffs next contend that a 1,000 foot
10 setback from places where children are found, and a prohibition on cultivation in locations
11 visible to the public right of way further impermissibly limit Plaintiffs' right and violate state
12 law. Plaintiffs also argue that it is unsafe and irrational to require medical marijuana
13 cultivation to take place on residential property, thereby inviting criminal conduct into
14 peoples' homes. These concerns are addressed as a group.l1
15 Each of the above arguments are premised upon the assumption that the CVA and
16 MMP grant QPs an entitlement to cultivate any amount of medical marijuana reasonably
17 required to meet the medical needs of all medical marijuana patients and primary caregivers
18 on any property, regardless of size, configuration, or location. However, no such expansive
19 rights are conferred. As noted in Hill, supra, 192 Cal.AppAth 869, "The statute does not
20 confer on qualified patients and their caregivers the unfettered right to cultivate or dispense
21 marijuana anywhere they choose. The County's constitutional authority to regulate the
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9 Plaintiffs, even though opposed to the County's security and privacy measures, sought a sealing order in this case due to their own concerns.
10 No initial argument was made as to restrictions on parcels greater than two acres in size; however, the arguments pro and con, and the analysis, are generally the same.
II The factual support for these arguments are set forth in the Declarations of Patricia Smith, ledediah Biagi and Chris Conrad.
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particular manner and location in which a business may operate (Cal. Const., art. XI, § 7) is
unaffected by section 11362.775."
Following Plaintiffs' reasoning leads down a precipitous slippery slope. First, the
amount of marijuana grown on any particular parcel to meet the needs of the residents' on that
parcel is highly variable and impossible to predict. Not only does the County not know how
many QPs might reside on the property, but Kelly, supra, 47 Cal.4th 1008, 1012-1013 tells us
that the legal amount of marijuana in a QPs' possession is dependent on the person's particular
needs and the method of ingestion/consumption. Plaintiffs' declarations show over fifty
different individual needs and circumstances. Add to that fact that different parcels, perhaps
different strains, and different growing techniques and grower sophistication and competence
contribute to different yields. No one can seriously argue that an unlimited number of QPs, or
their collective, have the right to grow thousands of plants on the county's smallest parcel. It's
all a matter of degree. This leaves the County to choose either to not limit growing or to set
objective standards which may appear arbitrary, especially those QPs who cannot grow as
much as they need. The difficulty in setting objective standards does not, in and of itself,
mean the ordinance is an unlawful regulation, nor is it grounds for the Court to intervene.
While Plaintiffs argue the violation of their rights, and the County argues the validity
of its ordinance, one point that seems lost in the crossfire is this: The counterpoint to the
Plaintiffs' rights are the rights of the general public. The ordinance is not simply a curtailment
of the rights of 250 plaintiffs. It is a legislative act that balances the Plaintiffs' rights against
those of the public at large12• Not every citizen embraces medical marijuana. Not every
citizen wants a large medical marijuana grow next door. Some citizens may be bothered by
the smell of maturing cannabis. Not every citizen wants their children to have access to
marijuana fields. Not every citizen wants his or her family and property exposed as an
innocent bystander to crime which is related to the lawful marijuana cultivation and use at his
12 County population is approximately 98,600.
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1 neighbor's property. Not every landlord wants to put his property at risk for drug seizure. Not
2 every citizen wants to bear the public expense of law enforcement and courts in the
3 prosecution of marijuana related crime. It is these concerns, among others, that elected
4 representatives weigh and compromise in enacting a measure like Ord. 2349, and that are
5 implicit in the BOS' findings.
6 Returning to basics, medical marijuana law protects QPs from criminal prosecution.
7 They do not generally legalize marijuana, nor make it regulation-free. There is nothing in the
8 CVA or the MMP that ensures the rights of QPs (or enhances access) without regard to or at
9 the expense of the public at large. Likewise, the CVA and MMP do not require local
10 jurisdictions to compromise public safety, the protection of juveniles, or the protection of
11 property values. Instead, the MMP specifically authorizes regulation consistent with its
12 provisions. HSC §11362.83(c).
13 Thus, whether Ord. 2349 is consistent with the CVA and MMP or is overreaching to
14 the point of violating state law is really an issue of preemption and due process in the final
15 analysis, not an issue of whether the County properly exercised its legislative prerogative.
16 In this regard, medical marijuana zoning cases generally fall into two camps. First,
17 cases like Kruse supra, 177 Cal.App.4th 1153 and Hill, supra, 192 Cal.App.4th 861 do not
18 impose a blanket prohibitions on medical marijuana activities. Kruse involved a temporary
19 moratorium preventing the approval or issuance of any permit, variance, license, or other
20 entitlement for the establishment of a medical marijuana dispensary in the City of
21 Claremont.13 The issue in Hill was whether the trial court erred in granting a preliminary
22 injunction against the defendant operator of a medical marijuana dispensary who failed to
23 comply with a local ordinance by not obtaining a business license, conditional use permit and
24 zoning variance. A second line of cases stem from total prohibitions (generally dispensary
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13 The initial moratorium was 45 days, then extended to 10 months, 15 days, and further extended by one year, leading some parties and courts to argue that the effect of the moratorium was a permanent and complete ban of medical marijuana dispensaries.
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cases); however, these cases are presently pending before the Supreme Court. See footnote
#1.
This case does not involve a total prohibition, and, except for collective/cooperative
issues noted elsewhere, Ord. 2349 attempts to balance the QPs' needs and their access to
medical marijuana against the rights of the general population. The question, therefore, is
whether the ordinance does so in a way that violates state law by eliminating rights under the
CUNMMP or simply imposes regulation within the sound discretion of the BOS, being the
elected representatives of the citizens of Nevada County. Other than general themes of access,
Plaintiffs have not pointed to any provision which eliminates any right granted by the
CUNMMP as a result of the size, configuration, zoning, or other restrictions and requirements
of the ordinance.
Thus, Plaintiffs right to cultivate is not abrogated. Like any exercise of a lawful right,
however, it is not without limitations, including zoning, size of the parcel, configuration, and
compliance with setbacks, fencing, odor control, etc. An individual or a collective may not be
able to grow on every parcel, but there is no evidence of any lack of residential parcels that
would accommodate cultivation. Restriction, inconvenience, and expenses which are not
inconsistent with state law are not cause for the Court to invalidate an ordinance. See, i.e.,
County of Los Angeles v. Hill, supra, 192 Cal.AppAth 861. Further, while one might
question the BOS determinations in balancing the issues of a very complex problem, the BOS
determination, a legislative act, cannot be disturbed by the Court in the absence of a clear
violation of state law. Unless the ordinance is facially invalid, it is an abuse of the Court's
power to substitute its own legislative judgment for that of the BOS.
The questioning of the BOS' findings does not assist the Plaintiffs. As explained in
Schabarum v. California Legislature (1998) 60 Cal.AppAth 1205, 1219:
The performance of the policymaking role of the Legislature necessitates that the Legislature engage in certain factfinding processes. These are not the type of case-specific factual determinations that are intrinsic to the judicial function, but are instead "an indispensable incident and auxiliary to the proper exercise of legislative power." (Citation omitted.) "It is not the judiciary's function,
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however, to reweigh the 1egislative facts' underlying a legislative enactment." (Citation omitted.) The factual determinations necessary to the performance of the legislative function are of a peculiarly legislative character and a scope of review firmly rooted in that consideration is required. (Citation omitted.) Thus, it has been said that "[i]f the validity of a statute depends on the existence of a certain state of facts, it will be presumed that the Legislature has investigated and ascertained the existence of that state of facts before passing the law." (Citation omitted.) Moreover, the presumption of constitutionality requires that a legislative act "be deemed to have been enacted on the basis of any state of facts supporting it that reasonably can be conceived." (Citation omitted.) And, "[t]he power to determine the facts upon which appropriations are based rests exclusively in the legislative and executive branches of the government, and the function of the courts is to determine the issues of law presented by the face of the legislation and relevant facts of which they can take judicial notice." (Citation omitted.)
What all this means is that the courts will not... engage in a trial at which the court, as trier of fact, determines the factual basis upon which the Legislature may act.
Local agency findings are included in the deference given to legislative findings. Vo
v. City of Garden Grove (2004) 115 Cal.AppAth 425, 442. See also, Alfaro v. Terhune (2002)
98 Cal.AppAth 492, 510-511.
Accordingly, to the extent that Ord. 2349 restricts the size, location, zoning, setbacks,
landlord consent, Plaintiffs have not demonstrated a likelihood of prevailing on the merits. To
the extent collectives are not permitted to operate within the foregoing limitations, the
Plaintiffs have demonstrated a likelihood of success.
Vested Property Rights:
Plaintiffs next argue that they will suffer harm if Ordinance 2349 is enforced because it
will result in takings. of Plaintiffs' vested property rights. "[A] zoning ordinance may not
operate to immediately suppress or remove from a particular district an otherwise lawful
business or use already established therein." City of Los Angeles v. Gage (1954) 127
Cal.App.2d 442, 454. Plaintiffs contend that they have already established a use in that
qualified patients have already made preparations for cultivation for the season, and that such
preparations will be subject to abatement.
County, however, correctly argues that Plaintiffs' vested rights, assuming without
deciding that such vested rights exist, may be impaired or revoked where necessary to protect
20
1 the health and safety of the public, as in the case of a public nuisance. Davidson v. County of
2 San Diego (1996) 49 Cal.AppA'h 639, 638.
3 In this case, the Findings and Purpose of the Ordinance clearly demonstrates the need
4 to protect the health and safety of the public relating to a nuisance. Thus, any purported vested
5 property rights may be legally impaired.
6 Balancing of Burdens:
7 If Ord. 2349 is preempted by state law, then balancing of harm becomes a moot
8 issue14; however, for the most part, this Court does not reach that conclusion. Plaintiffs will
9 undoubtedly be harmed by enforcement of the ordinance to the extent it impinges on the rights
10 of QPs to cultivate collectively, as discussed above. They will not be harmed by the
11 application of other facially valid aspects of the ordinance.
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URGENCY
Plaintiffs contend that Ord. 2349 was invalidly enacted as an emergency measure.
Government Code §25123 provides in part, "All ordinances shall become effective 30 days
from the date of final passage, except ... (d) Those for the immediate preservation of the
public peace, health, or safety, which shall contain a declaration of the facts constituting the
urgency, and shall be passed by a four-fifths vote of the board of supervisors."
Here, the BOS made numerous findings about escalating health and safety concerns for
the 2012 growing season and the "immediate need to provide certainty and guidance" to
growers and preserve the public peace, health and safety of Nevada County residents."
While Plaintiffs question the BOS conclusion that urgency exists, they do not question
the BOS findings of fact underlying that conclusion. Rather, the argument is that these factual
findings do not "a sudden emergency" make. Plaintiffs rely on In re Hoffman, (1909) 155 Cal.
114, a case in which the factual findings (relating to milk fat content as a matter of immediate
public concern) did not support urgency.
14 See, e.g., Hill, supra, 192 Cal.AppAth 861, 866.
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The applicable legal principles are more clearly stated in Northgate Partnership v. City
of Sacramento (1984) 155 Cal.App.3d 65 at p. 69:
" In the absence of evidence to the contrary it will be assumed that a municipal legislative body in enacting an emergency ordinance acted on sufficient inquiry as to whether an emergency existed. Its declaration is prima facie evidence of the fact. Where the facts constituting the emergency or urgency are recited in the ordinance and are such that they may reasonably be held to constitute an emergency, the courts will not interfere, and they will not undertake to determine the truth of the recited facts." (45 Cal.Jur.3d, Municipalities, § 199, p. 315; fns. omitted.) Under the doctrine of separation of powers, which applies to local legislative bodies, we may not invalidate legislation in the absence of 'some overriding constitutional, statutory or charter proscription.' (City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 915-916, and fn. 7 [120 Cal.Rptr. 707].)
Further, a declaration of urgency by the Legislature will not be declared invalid unless
it appears clearly and affirmatively from the legislature's statement of facts that a public
necessity does not exist. If there is any doubt as to whether the facts do or do not state a case
of immediate necessity, that doubt should be resolved in favor of the legislative declaration.
The reason for this rule is that the question whether such necessity exists is one of fact to be
determined by the Legislature. Davis v. County of Los Angeles (1938) 12 Cal.2d 412, 422-
423; Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1253-1254.
Following the above rules of law, this Court defers to the BOS as to its findings of
urgency. This determination is compelled by the principles of separation of powers and
deference to the determination of the legislative body, which found the existence of an
immediate public necessity and acted thereon.
Separately, even if to the urgency findings failed to support an immediate effective
date for Ord. 2349, the issue is now moot. The ordinance nonetheless became effective after
30 days (June 7, 2012). Bailey v. County of Los Angeles (1956) 46 Cal.2d 132, a p.140, citing
People v. Phillips (1946) 76 Cal.App.2d 515, 521, Michelson v. City of Sacramento (1916)
173 Cal. 108, 109, In re Hoffman (1909) 155 Cal. 114, 120, Morgan v. City of Long Beach
(1922) 57 Cal.App. 134, 139, and Klassen v. Burton (1952) 110 Cal.App.2d 539, 543.
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SEVERABILITY
By its terms Ord. 2349 is severable. (Section III) Thus, if au offending provision can
be severed without substantial impact to the balance of the ordinance, the remaining
provisions of the ordinance will remain valid.
In this case, while the Court has concerns about the ordinance's application to
collectives, an order can be fashioned that resolves that issue without disturbing the BOS
legislative intent and action concerning the remainder of Ord. 2349 dealing with location,
sightlines, odor control, grow size, and the like.
DUE PROCESS
Plaintiffs' Supplemental Memorandum of Points and Authorities in Support of the
Order to Show Cause re: Preliminary Injunction filed on July 6, 2012, raises, for the first time,
an argument that Ord. 2349 violates the Federal Due Process Clause. As such contention is
not raised by the Complaint or the initial pleadings in this matter, such argument will not be
considered.
As for the contention that Ord. 2349 violates the California Constitution's Due Process
clause, such contention is not sustained. As conceded by Plaintiffs "many ofthe nuisance and
safety issues addressed by Ordinance 2349 are legitimate and rationally regulated."
[Plaintiffs's Supplement Points & Authorities filed 7/6/12; Page 12: 19-20.] The other issues
cited to by Plaintiffs as violating Due Process, relating to size of property and the
residential/rural nature of property, are "reasonably related to the accomplishment of a
legitimate governmental interest." Terminal Plaza COl]. v. City and County of San Francisco
(1986) 177 Cal.App.3d 892, 908. As explained in California Rifle & Pistol Assn. v. City of
West Hollywood (1998) 66 Cal.AppAth 1302, at p 1330:
(T)he burden lies on plaintiffs to demonstrate the unconstitutionality of 25 the statute they attack. (Cf. 7 Witkin, Summary of Cal. Law, supra,
Constitutional Law, § 58, pp. 102-103 ["A legislative act is presumed to be 26 constitutional. Unconstitutionality must be clearly shown, and doubts will be
resolved in favor of its validity .... "].) It is clear that substantive due process 27 requires a rational relationship between the objectives of a legislative
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enactment and the methods chosen to achieve those objectives. A line of substantive due process cases generally holds that the guaranty of due process in the Fifth and Fourteenth Amendments includes a "substantive" component that restricts infringement upon certain fundamental "liberty interests." (See, e.g., Reno v. Flores (1993) 507 U.S. 292, 302 [113 S.C!. 1439, 1447, 123 L.Ed.2d 1].) The substantive due process doctrine thus acts as a limitation on unreasonable and arbitrary legislation. (7 Witkin, Summary of Cal. Law, supra, Corstitutional Law, § 481, pp. 668-669; People v. Kilborn (1996) 41 Cal.AppAth 1325, 1328 [49 Cal.Rptr.2d 152] [" 'deprivation of a right is supportable only if the conduct from which the deprivation flows is prescribed by reasonable legislation that is reasonably applied; that is, the law must have a reasonable and substantial relation to the object sought to be attained.' "].) The scope of the "substantive due process" concept is indefinite. " ... the notions of fairness and reasonableness which make up the content of substantive due process ... are too general to offer any definite test .... " (8 Witkin, Summary of Cal. Law, supra, Constitutional Law, § 791, pp. 318-319.) Since there is no definite test to determine whether a statute complies with the "notions of fairness" which make up the concept of "substantive due process," and since there is no definite test to determine whether a statute is "unreasonable" or "arbitrary," courts must be cautious not to interfere with proper legislative judgment when considering claims of violation of substantive due process. Thus" ,[s]ubstantive due process' analysis must begin with a careful description of the asserted right [allegedly infringed upon], for '[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.' " (Reno v. Flores, supra, 507 U.S. at p. 302 [113 S.C!. at p. 1447].) " ' ... a Legislature does not violate due process so long as an enactment is ... reasonably related to a proper legislative goal. The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute.' " (People v. Kilborn, supra, 41 Cal.AppAth at p. 1329, quoting from Hale v. Morgan (1978) 22 Cal.3d 388, 398 [149 Cal.Rptr. 375, 584 P.2d 512].)
No fundamental right is implicated in Ord. 2349. However, the benefits of the CUA
and MMP could be considered protectable interests under the California Due Process clause.
Assuming this premise to be correct, Plaintiffs have not carried their burden. County need
only show a rational basis or relationship to the stated objective of the ordinance, not that it
considered all options or that better options could have been adopted. Specifically, Plaintiffs
raised the following points in pleadings and argument which are not otherwise addressed in
this decision:
1. Lot size versus patient needs: Plaintiffs rely on the declaration of Chris Conrad and
People v. Kelly, supra. As noted above, the individual needs and varying size of households
does not lend itself to a legislative determination of how much medical marijuana may be
24
1 grown on a particular site. While the ordinance findings note the high yield of marijuana
2 plants in Nevada County, the rationale is not related to yield. Rather, there exists a rational
3 connection between lot size and grow size, which supports the ordinance.
4 2. Contiguous grow area: County responded in oral argument that this requirement
5 rationally relates to compliance. On larger parcels, this rationale would be more compelling,
6 but nonetheless, County has shown a rational relationship.
7 3. Flat plane: County argued that the measure was related to erosion control. Again,
8 County could have implemented different erosion control measures (i.e., terracing or berms),
9 but the court is not free to substitute its judgment for that ofthe County's legislative branch.
10 4. Invisibility (Section G-IV 504(1)(2) and 0)(2): These two provisions essentially
11 provide that neither the marijuana itself, nor any exterior evidence of cultivation shall be
12 visible from a public road or publicly traveled private road. These provisions are related to
13 public safety and security for the cultivation site. County conceded that otherwise confonning
14 fencing would not be considered exterior evidence of cultivation.
15 5. Landlord declaration requirements: Use of the land in a lawful manner consistent
16 with the landlord tenant relationship and the knowledge of the landlord would appear to be
17 rationally related to the objectives of the ordinance.
18 6. Setbacks: The MMP imposes a 600 foot setback with respect to schools. Setbacks
19 are rationally related to the objectives of the ordinance and the MMP.
20 EQUAL PROTECTION
21 Plaintiffs next contend that Ord. 2349 violates the Federal and California Equal
22 Protection Clauses, which require that "similarly situated" persons receive like treatment
23 under the law. California Rifle and Pistol Association Inc. v. City of West Hollywood (1998)
24 66 Cal.Appo4th 1302, 1326. However, legislation which does not involve suspect
25 classifications or fundamental rights may classify and treat persons differently so long as there
26 is any reasonably conceivable set of facts providing a rational basis for the classification. FCC
27 v. Beach Communications (1993) 508 US 307, 313.
28 25
1 Here, the Ordinance does not adopt any classifications of similarly situated groups. To
2 the extent that Plaintiffs argue that not all growers are wealthy, have the necessary land, or
3 may have the ability to cultivate their own, such argument is without merit. These are not
4 classifications. Additionally, the Equal Protection clause does not require persons in different
5 circumstances to be treated as if their situations are similar. People v. Rhodes (2005) 126
6 Cal.App.4th 1374, 1383. Moreover, even if such classifications did exist, those classifications
7 are rationally related to a legitimate purpose, as described in the Findings and Purpose of the
8 Ordinance.
9 REQUEST FOR JUDICIAL NOTICE
10 County's Request for Judicial Notice filed July 20,2012, is granted in its entirety.
11 OBJECTIONS TO EVIDENCE
12 County's Objections to portions of the Declaration of Patricia Smith are sustained as to
13 numbers 6, and 7 and County's Objections to portions of the Declaration of Chris Conrad are
14 sustained as to 16, 18, 20, 21-23, and 30, based on lack ofrequired foundational basis,
15 inadmissible opinion, conclusion and speculation, and hearsay. The remaining objections are
16 overruled.
17 Plaintiffs' objections to the evidence are sustained in their entirety. The Kropf
18 declaration, p. 2, II. 8-9 lacks foundation. Exhibits Band C thereto could be judicially
19 noticeable as to the existence of such reports, but the content contains inadmissible hearsay.
20 Exhibits D and E lack foundation to support judicial notice.
21 CONCLUSION
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Counsel for Plaintiffs shall prepare the Order Granting the Preliminary Injunction In
Part and Denying the Preliminary Injunction In Part.
DATED: July 27,2012. SEAN P. DOWlING
SEAN P. DOWLING Judge of the Superior Court
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ORDINANCE No. 2349
ATTACHMENT A
ORDINANCE N 13L\C\ 0,, ______ _
OF THE BOARD OF SUPERVISORS OF THE COUNTY OF NEVADA
AN URGENCY ORDINANCE ADDING ARTICLE 5 TO CHAPTER IV OF THE NEVADA COUNTY GENEUAL CODE REGARDING MEDICAL MARl.JUANA CUL TlVA TION
THE BOARD OF SUPERVISORS OF THE COUNTY OF NEVADA, STATE OF CALIFORNIA, ORDAINS AS FOLLOWS
SECTION I:
Article 5 of Chapter IV of the Nevada County General Code is hereby added to read as shown in Exhibit A attached hereto and incorporated herein by this reference.
SECTION II:
The County finds that this Article is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15061(b){3) (there is no possibility the activity in question may have a significant effect on the environment). In addition to the foregoing general exemptions, the following categorical exemptions apply: Sections 15308 (actions taken as authorized by local ordinanc.e to assure protection of the environment) and 15321 (action by agency for enforcement of a law, general rule, standard or objective administered or adopted by the agency, including by direct referral to the County Counsel as appropriate for judicial enforcement).
SECTION III:
Severability. If any provision of this Article or the application thereof to any person or circumstance is held invalid, the remainder of this Article, including the application of such part or provision to other circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Article are severable. The Board of Supervisors hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that anyone (1) or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be held unconstitutional, invalid or unenforceable.
SECTION IV:
Pursuant to Government Code section 25123(d), this Ordinance shall take effect and be in force immediately upon the passage hereof, and before the expiration of fifteen (15) days after its passage it shall be published once, with the names of the Supervisors voting for and against same in the Union & Sierra S~n a newspaper of general circulation printed and published in the County of Nevada.
PASSED AND ADOPTED by the Board of Supervisors of the County of Nevada at a regular meeting of said Board, held on the ~ day of JY!IDr......_-, 2012, by the following vote of said Board:
ATTEST:
DONNA LANDI Clerk of the Board of SupervisQrs
MM/DD/YYYY cc:
5/9/2012 Sheriff County Counsel The Union Si~r~a StUl
Ayes: Supervisors Nathan Beason, Edward Scofield, ancl Hank Weston, and Ted S. Owens.
Noes: Supervisor Terry Lamphier.
Absent: None.
Abstain: None.
~ Ted S. Owen:::sc','-7C"h=-a Ti rc:----
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EXHIBIT A
MEDICAL MARIJUANA CULTIVATION
Section G-IV 5.1 Authority and Title.
Pursuant to the authority granted by Article XI, section 7 of the California Constitution, Health and Safety Code section 11362.83, and Government Code section 25845, the Board of Supervisors does enact this Article.
Section G-IV 5.2 Findings and Purpose
(A) In 1996, the voters of the State of California approved Proposition 215 (codified as California Health and Safety Code Section 11362.5 and entitled "The Compassionate Use Act of 1996").
(B) Proposition 215 was intended to enable persons who are in need of marijuana for medical purposes to use it without fear of criminal prosecution under limited, specified circumstances. Proposition 215 further provides that "nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, or to condone the diversion of marijuana for non-medical purposes." The ballot arguments supporting Proposition 215 expressly acknowledged that "Proposition 215 does not allow unlimited quantities of marijuana to be grown anywhere."
(C) In 2004, the Legislature enacted SB 420 (codified as California Health and Safety Code SectIon 11362.7 et seq.) to clarify the scope of Proposition 215, and to provide qualifying patients and primary caregivers who collectively or cooperatively CUltivate marijuana for medical purposes with a limited defense to certain specified State criminal st(Itutes.
(D) California Health & Safety Code section 11362.83 expressly allows cities and counties to adopt and enforce ordinances that are consistent with Senate Bill 420.
(E) The Federal Controlled Substances Act, 21 U.S.C. sections 801, et seq., classifies marijuana as a Schedule I Drug, which is defined as a drug or other SUbstance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United States, and that has nol been accepted as safe for use under medical supervision. The Federal Controlled Substances Act makes it unlawful, under federal law, for any person to cultivate, manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense marijuana. The Federal Controlled Substances Act contains no exemption for the cultivation, manufacture, distribution, dispensation, or possession of marijuana for medical purposes.
(F) The County's unique geographic and climatic conditions, which include dense forested areas receiving substantial precipitation, along with the sparse population in many areas of the County, provide conditions that are favorable to marijuana CUltivation. Marijuana growers can (Ichieve a high per-plant yield because of the County's favorable growing conditions. The Federal Drug Enforcement Administration reports that various types of marijuana plants under various planting conditions may yield averages of 236 grams (about one-half pound) to 846 grams (nearly two pounds). Based Oll lawellforcement
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seizures, yields in Nevada County have tended to be at the higher end of this range. The "street value" of a single cannabis plant is substantial. As of 2012, per pound prices for domestically produced high-grade cannabis sold illegally within Northern California can reach $2,000 to $5000. A single marijuana plant cultivated within the County can thus yield $4,000 or more in saleable marijuana.
(G) Proposition 215 and Senate Bill 420 primarily address the criminal law, providing qualifying patients and primary caregivers with limited immunity from state criminal prosecution under certain identified statutes. Neither Proposition 215 nor Senate Bill 420, nor the Attorney General's August 2008 Guidelines forthe Security and NonDiversion of Marijuana Grown for Medical Use adopted pursuant to Senate Bill 420, provides comprehensive civil regulation of premises used for marijuana CUltivation. The unregulated cultivation of marijuana in the unincorporated area of Nevada County can adversely affect the health, safety, and well-being of the County and its residents. 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 that may result from unregulated marijuana cultivation. These risks are especially significant if the amount of marijuana cultivated on a single premises is not regulated and substantial amounts of marijuana are thereby allowed to be concentrated in one place.
(H) Cultivation of any amount of marijuana at locations or premises within 1000 feet of schools, school bus stops, school evacuation sites, churches, parks, child care centers, or youth-oriented facilities creates unique risks that the marijuana plants may be observed by juveniles, and therefore be especially vulnerable to theft or recreational consumption by juveniles. Further, the potential for criminal activities associated with marijuana cultivation in such locations poses heightened risks that juveniles will be involved or endangered. Therefore, cultivation of any amount of marijuana in such locations or premises is especially hazardous to public safety and welfare, and to the protection of children and the person(s) cultivating the marijuana.
(I) As recognized by the Attorney General's August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, the cultivation or other concentration of marijuana in any location or premises without adequate security increases the risk that surrounding homes or businesses may be negatively impacted by nuisance activity such as lOitering or crime. In addition, the Indoor Cultivation of Marijuana without compliance with basic building code requirements creates increased risks of electrical fire, mold, mildew, plumbing issues and other damage to persons and property,
(J) It is the purpose and intent of this ArtiCle to implement State law by regulating the cultivation of medical marijuana in a manner consistent with State law. It is also the intent of this Article to balance the needs of medical patients and their caregivers and which promotes the health, safety, and general welfare of the residents and businesses within the unincorporated territory of the County of Nevada. This Article IS intended to be consistent with Proposition 215 and Senate Bill 420 and towards that end, it is not intended to prohibit persons from individually, collectively, or cooperatively exercising any right otherwise granted by State law. Rather, the intent and purpose of this Article is to establish reasonable regulations regarding the manner in Which marijuana may be cultivated, including restrictions on the amount of marijuana that may be individually,
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collectively, or cooperatively cultivated in any location or premises, in order to protect the public health, safety, and welfare in Nevada County.
(K) The limited right of qualified patients and their primary caregivers under State law to cultivate marijuana plants for medical purposes does not confer the right to create or maintain a public nuisance. By adopting the regulations contained in this Article, the County will achieve a significant reduction in the aforementioned harms caused or threatened by the unregulated cultivation of marijuana in the unincorporated area of Nevada County.
(L) Nothing in this Article shall be construed to allow the use of marijuana for non-medical purposes, or allow any activity relating to the cultivation, distribution or consumption of marijuana that is otherwise illegal under State or Federal law. No provision of this Article shall be deemed to be a defense or immunity to any action brought against any person in Nevada County by the Nevada County District Attorney, the Attorney General of the State of California, or the United States of America.
(M) According to the Nevada County Sheriff, the amount of Marijuana cultivated in Nevada County increases significantly with each growing season and is increasingly occurring in residential areas, in close proximity to residences, and on vacant, unsupervised and unsecured properties. In 2011, Nevada County has experienced a dramatic increase in citizen complaints regarding the odor, threats to public safety and other nuisances that unregulated Cultivation sites can create.
(N) Cultivation sites have been the subject of serious criminal activity and associated violence including armed robberies, assault, battery, home invasion robberies and burglaries. An increasing number of sites are very visible to, and easily accessible by, the public, including children and youth. To protect the Marijuana, some of these Cultivation sites use aggressive and vicious dogs, booby-trap devices and persons with weapons that threaten severe bodily harm or death to those who attempt to access the site. Left unregulated, Cultivation sites also result in loitering, increased traffic, noise, environmental health issues, unreasonable odors and other public nuisances that are harmful to the public health, safety and welfare of the surrounding community and its residents.
(0) In Nevada County, the typical growing season for Marijuana is approximately April through September of each year. Surrounding counties have adopted restrictions and, in some cases, bans on the Cultivation of Marijuana in their jurisdictions. If left unregulated for another growing season, itis likely that Nevada County will encounter increasing numbers of Marijuana Cultivation sites of increasing sizes, in locations which conflict with the provisions of this Ordinance and operated in manners which creates public nuisance to the surrounding community and its residents. Due to the start ofthe current Marijuana grow season there is an immediate need to provide certainty and guidance to those who might choose to Cultivate Marijuana in Nevada County and preserve the public peace, health and safety of Nevada County residents by regulating and addressing the public nuisances associated with Medical Marijuana Cultivation. In addition, if Medical Marijuana cultivation is not immediately regulated,large quantities of illegal Marijuana cultivation sites will be introduced into the local market in the near term.
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Section G-IV 5.3 Definitions. As used herein the following definitions shall apply:
(A) "Child Care Center" means any licensed child care center, daycare center, or childcare home, or any preschool.
(8) "Church" means a structure or leased portion of a structure, which is used primarily for religious worship and related religious activities.
(C) "Cultivation" or "Cultivate" means the planting, growing, harvesting, drying, processing or storage of one or more Marijuana plants or any part thereof in any location, indoor or outdoor, including from within a fully enclosed and secure building.
(D) "Enforcing Officer" means the Sheriff, or his authorized deputies or designees, who is authorized to enforce this Article.
(E) "Fence" is defined in Section L-II 4.2.6 of the Nevada County Land Use and Development Code and Section G-IV 5.4(1)(1) of this Article, and is further defined as a wall or barrier connected by boards, masonry, rails, panels or any other materials approved by the Planning Director for the purpose of enclosing space or separating parcels of land. For purposes of this Article, the term "Fence" does not include walls, tarpaulins, scrap material, bushes or hedgerows.
(F) "Hazardous Materials" means any substance that is "flammable, reactive, corrosive or toxic", as further defined in California Health and Safety Code Sections 25501 and 25503.5, as may be amended.
(G) "Hearing Officer" means a person designated by the Board of Supervisors to conduct administrative lien hearings as provided in Section G-IV 5.9 of this Article,
(H) "Identification card" shall have the same definition as California Health and Safety Code Section 11362.5 et seq., as may b.e amended.
(I) "Indoor" or "Indoors" means within a fully enclosed and secure structure that complies with the California Building Code (CBC), as adopted by the County of Nevada, that has a complete roof enclosure supported by connecting walls extending from the ground to the roof, and a foundation, slab, or equivalent base to which the floor is securely attached. The structure must be secure against unauthorized entry, accessible only through one or more lockable doors, and constructed of solid materials that cannot easily be broken through, such as 2" x 4" or thicker studs overlain with 3/8" or thicker plywood or equivalent materials. . requirement.
(J) "Legal Parcel" means any parcel of real property that may be separately sold in compliance with the Subdivision Map Act (Division 2 (commencing with Section 66410) of Title 7 of the California Government Code).
(K) "Marijuana" shall have the same meaning as that set forth in Health and Safety Code section 11018, as may be amended. Marijuana, Medical Marijuana, and the Cultivation thereof, as defined in this Article shall not b.e considered an agricultural activity, operation or facility under Civil Code section 3482.5 or an Agricultural Product as defined in Section
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L-II 3.3 of the Nevada County Land Use and Development Code, or an Agricultural Operation as defined in Sections L-II 3.3, L-II 6.1 and L-XIV 1.1 of the Nevada County Land Use and Development Code.
(L) "Medical Marijuana" shall mean Marijuana recommended by a licensed physician, in accordance with California Health and Safety Code sections 11362.5 through 11362.83, commonly referred to as the Compassionate Use Act and the Medical Marijuana Program Act.
(M) "Medical Marijuana Collective" means Qualified Patients and/or designated Primary Caregivers of Qualified Patients, who associate, or form a cooperative in accordance with Section 12300 of the Corporations Code, within the unincorporated area of the County in order to collectively or cooperatively cultivate Marijuana for medical purposes, as provided in Health and Safety Code Section 11362.775, as may be amended. The term collective shall include "cooperative" unless the context clearly indicates otherwise.
(N) "Outdoor" or "Outdoors" means any location that is not "indoors" within a fully enclosed and secure structure as defined herein.
(0) (0) "Outdoor Living Area" means any patio, deck, barbecue, sitting area, dining area, , pool, hot tub, enclosed yard or other outdoor space or amenity which is designed and/or used for outdoor living and entertainment.
(P) "Parcel" means a '~Legal Parcel" as defined herein.
(Q) "Premises" means a single, Legal Parcel of property. Where contiguous Legal Parcels are under common ownership or control, such contiguous Legal Parcels shall be counted as a single "Premises" for purposes of this Article.
(R) "Primary Caregiver" shall have the definition as Health and Safety Code Section 11362.7(d), as may be amended.
(S) "Qualified Patient" shall have the definition as Health and Safety Code Sections 11362.7(c) and (f), as may be amended.
(T) "Residence" shall mean a fully enclosed structure used for human occupancy and shall have the same meaning as "domicile."
(U) "School" means an institution of learning for minors, whether public or private, offering a regular course of instruction required by the California Education Code. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college or university.
(V) "School Bus Stop" means any location designated in accordance with Califomia Code of Regulations, Title 13, section 1238, to receive school buses, as defined in California Vehicle Code section 233, or school pupil activity buses, as defined in Vehicle Code section 546.
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(W) "School Evacuation Site" means any location designated by formal action of the governing body, Superintendent, or principal of any school as a location to which juveniles are to be evacuated to, or are to assemble at, in the event of any emergency or other incident at the school.
(X) "Sheriff" or "Sheriff's Office" means the Nevada County Sheriff's Office or the authorized representatives thereof.
(Y) "Youth-oriented facility" means any facility that caters to or provides services primarily intended for minors, or the individuals who regularly patronize, congregate or assemble at the establishment are predominantly minors.
(A) The Cultivation of Marijuana, either Indoors or Outdoors, on any Parcel or Premises in an area or in a quantity greater than as provided herein, or in any other way not in conformance with or in violation of the provisions of this Article, is hereby declared to be a public nuisance that may be abated in accordance with this Article, and by any other means available by law. The provisions of Section L-II 5.19 (Nonconforming Uses and Structures) of the Nevada County Land Use and Development Code shall not apply to the Cultivation of Marijuana hereby declared to be a public nuisance.
(B) Medical Marijuana Cultivation is prohibited on any Parcel or Premises within the unincorporated territory of Nevada County except as an accessory use to a legally established Residence on a Legal Parcel.
(C) Except as provided in Section 5.4(D) of this Article, Medical Marijuana Cultivation may be undertaken only by a Qualified Patient who occupies a legal Residence on a Legal Parcel or Premises proposed for Cultivation as his Of her primary place of residence.
(D) A Primary Caregiver may cultivate Medical Marijuana on behalf of his or her Qualified Patient(s), but only at the Qualified Patient's primary Residence and/or at the Primary Caregiver's primary Residence, and only in conformance with all applicable State and local regulations and all limitations set forth in this Article.
(E) Indoor Cultivation may occur only within a legal structure that meets the definition of Indoor and complies with all applicable proVisions of the County's Land Use and Development Code. Any accessory structure used for Cultivation of Marijuana shall be ventilated with odor control filters, and shall not create an odor, humidity or mold problem on the Premises or on adjacent Premises. Cultivation within any detached accessory structure that does not meet the definition of Indoor shall be considered Outdoor Cultivation.
(F) All electrical and plumbing used for Indoor Cultivation of Marijuana shall be installed with valid electrical and plumbing permits issued and inspected by the Nevada County Building Department, which building permits shall only be issued to the legal owner of the Premises. The collective draw from all electrical appliances on the Premises shall not exceed the maximum rating of the approved electrical panel for the primary legal
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Residence on the Parcel. The maximum rating shall be as established in the manufacturer specifications for the approved electrical panel.
(G) The following limitations apply to Cultivation of Medical Marijuana on each Premises located within the unincorporated area of Nevada County, regardless of the number of Qualified Patients or Primary Caregivers residing at the Premises or participating directly or indirectly in the Medical Marijuana Cultivation activity. These limitations shall be imposed notwithstanding any assertion that the person(s) Cultivating the Marijuana are the Primary Caregiver(s) for Qualified Patients or that such person(s) are collectively or cooperatively Cultivating Marijuana.
(1) Premises located within any area zoned primarily for residential uses (e.g., R-1, R-2, R-3 or R-A) shall be limited to the following:
a. Premises with a gross area of less than two acres shall be limited to 100 contiguous square feet of Indoor Cultivation area.
b. Premises with a gross area of two acres or more shall be limited to:
a. 75 contiguous square feet of Outdoor Cultivation area; or
b. Outdoor Cultivation of up to six (6) mature or immature Marijuana plants if grown in grow bags or pots which are 25-gallons or smaller, and all such plants are grown in a single, clearly designated contiguous grow area; or
c. 100 contiguous square feet of Indoor Cultivation area.
(2) Premises loc.ated within any area zoned primarily for rural uses (e.g., AG, AE, FR, or TPZ) shall be limited to the following:
a. Premises with a gross area of less than two acres shall be limited to 100 contiguous square feet of Indoor Cultivation area or 150 contiguous square feet of Outdoor Cultivation area.
b. Premises with a gross area of two acres but less than five acres shall be limited to 300 contiguous square feet of Outdoor Cultivation area or 100 contiguous square feet of Indoor Cultivation area.
c. Premises with a gross area of five acres but less than ten acres shall be limited to 400 contiguous square feet of Outdoor Cultivation area or 100 contiguous square feet of Indoor Cultivation area.
d. Premises with a gross area often acres but less than twenty acres shall be limited to 600 contiguous square feet of Outdoor Cultivation area or 100 contiguous square feet of Indoor Cultivation area.
e. Premises with a gross area of 20 acres or mote shall be limited to 1000 contiguous square feet of Outdoor Cultivation area or 100 contiguous square feet of Indoor Cultivation area.
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(3) The Indoor or Outdoor Cultivation of Marijuana, in any amount or quantity, on property located in any other zoning district is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this Article.
(H) The following setbacks shall apply to all Indoor and Outdoor Cultivation areas and shall be measured in a straight line from the nearest point of the Fence or other enclosure required by Section G-IV 5.4(1)(1) to either the nearest exterior wall of a residential structure on a Legal Parcel under separate ownership or the nearest boundary line of any Outdoor Living Area on a Legal Parcel under separate ownership.
(1) On Parcels located within any area zoned primarily for residential uses (e.g., R-1, R-2, R-3 or R-A):
a. If the Parcel is less than two gross acres, one hundred (100) feetfrom any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcel.
b. If the Parcel is 2 gross acres or greater, two hundred (200) feet from any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcel.
(2) On Parcels located within any area zoned primarily for rural uses (e.g., AG, AE, FR, TPZ):
a. If the Parcel is less than two gross acres, one hundred (100) feetfrom any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcel.
b. If the Parcel is at least 2 gross acres but less than 10 acres, One hundred fifty (150) feet from any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcel.
c. If the Parcel is at least 5 gross acres but less than 10 acres, Two hundred (200) feet from any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcel.
d. If the Parcel is at least 10 gross acres but less than 20 acres, two hundredfifty(250) feet from any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcel.
e. If the Parcel is 20 gross acres or greater, three hundred (300) feet from any legal Residence or Outdoor Living Area located on an adjacent separate Legal Parcel.
(3) In a mobile home park as defined in Health and Safety Code Section 18214.1, one hundred (100) feet from a mobile home that is under separate ownership.
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(I) Cultivation of Marijuana is prohibited on any Parcel or Premises located within the following areas:
(1) Upon any Premises located within one thousand (1000) feet of any School, School Bus Stop, School Evacuation Site, Church, Park, Child Care Center, or YouthOriented Facility Such distance shall be measured in a straight line from the Fence or other enclosure required by Section G-IV(I)(1) to the nearest boundary line of the Premises upon which the School, School Bus Stop, School Evacuation Site, Church, Park, Child Care Center, or Youth-Oriented Facility is located.
(2) In any location where the Marijuana would be visible from the public right of way or publicly traveled private roads at any stage of growth.
(3) Within any setback area required by Section G-IV 5.4(H).
(J) All Cultivation areas shall comply with the fol/owing requirements:
(1) All Marijuana Cultivated Outdoors must be fully enclosed within an translucent (but not transparent), sight obscuring Fence of at least six (6) but not more than eight (8) feet in height that fully encloses the garden area. The Marijuana shall be
. shielded from public view at all stages of growth. Should the Marijuana plant(s) grow higher than the Fence, the plants shall be cut so as to not extend higher than such Fence. All Fences shal/ comply with Section L-II 4.2.6 of the Nevada County Land Use and Development Code and shall be sufficient to conceal the Marijuana from public view. The Fence must be adequately secure to prevent unauthorized entry and include a locking gate that shall remain locked at all times when a Oualified Patient or Primary Caregiver is not present within the Cultivation area. Said Fence shall not violate any other ordinance, code section or provision of law regarding height and location restrictions and shall not be constructed or covered with plastic or cloth except shade cloth may be used on the inside of the Fence. Bushes or hedgerows shall not constitute an adequate Fence under this subsection. All Indoor Cultivation areas shall be adequately secure to prevent unauthorized entry, including a secure locking mechanism that shall remain locked at al/ times when a Oualified Patient or Primary Caregiver is not present within the Cultivation area.
(2) There shall be no exterior evidence of Indoor or Outdoor Cultivation from a public right-of-way or publicly traveled private road.
(3) Outdoor Cultivation areas shall be ona single plane and shall be clearly staked or marked as an Outdoor Cultivation area for purposes of determining compliance with the requirements set forth in Section G-IV 5.4(G). No portion of any Marijuana plant, including any portion of the plant's canopy, shall extend outside of the Outdoor Cultivation area.
(4) Marijuana Cultivation shall not adversely affect the health, safety, or general welfare of persons at the Cultivation site or at any nearby residence by creating dust, glare, heat, noise, noxious gasses, odor, smoke, traffic, or vibration, by the use or storage of hazardous materials, processes, products or wastes, or by any
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other way. The Indoor or Outdoor Cultivation of Marijuana shall not subject residents of neighboring parcels who are of normal sensitivity to reasonably objectionable odors.
(5) No person owning, leasing, occupying, or having charge or possession of any Parcel or Premises within the County shall cause, allow, suffer, or permit such Premises to be used for the Outdoor or Indoor Cultivation of Medical Marijuana in violation of the California Health and Safety Code or this Article.
(6) The use of light assistance for the Outdoor Cultivation of Marijuana shall not exceed a maximum of four hundred (400) walls of lighting capacity per one hundred (100) square feet of Cultivation area.
(7) All lights used for the Indoor or Outdoor Cultivation of Marijuana shall be shielded and downcast or otherwise positioned in a manner that will not shine light or allow light glare to exceed the boundaries of the Parcel upon which they are placed, and shall comply with the requirements of Section L-If 4.2.8 . .0. of the Nevada County Land Use and Development Code. Grow fight systems associated with Indoor Cultivation shall be shielded to confine light and glare to the interior of the structure and shall conform to all applicable building and electrical codes. Grow light systems shall not be allowed for Outdoor Cultivation.
(8) The Indoor or OutdOor Cultivation of Marijuana shall not exceed the noise level standards as set forth in the County General Plan.
(9) Wherever Medical Marijuana is grown, a copy of a current and valid, State-issued Medical Marijuana identification card, physician recommendation or Affidavit as set forth in this Section must be displayed in such a manner as to allow law enforcement officers to easify see the recommendation or Affidavit without having to enter any buifding of any type. If a Qualified Patient has a verbal medical recommendation, then the Qualified Patient shall provide an Affidavit selling forth. the name and contact information of the physician making the recommendation, the date of the recommendation and amount(s) of Marijuana recommended by the physician. The Affidavit shall be signed under penalty of perjury under the laws of the State of California.
(10) If the person(s) Cultivating Marijuana on any Legal Parcel islare notthe legal owner(s) of the parcel, the person(s) who is Cultivating Marijuana on such Parcel shall (a) give written notice to the legal owner(s) of the Parcel prior to commencing Cultivation of Marijuana on such Parcel, and (b) shall obtain a signed and notarized leller from the legal owner(s) consenting to the Cultivation of Marijuana on the Parcel. The person(s) Cultivating Marijuana shall obtain this written letter of consent from the legal owner prior to Cultivating Marijuana on the Premises and at least annually thereafter. A copy of the most current letter of consent shall be displayed in the same immediate area as the recommendations set forth in section G-IV 5.4(J)(9), in such a manner as to allow law enforcement officers to easily see the letter of consent without having to enter any building of any type. The person(s) Cultivating Marijuana shall maintain the original letter of consent on the Premises at which Marijuana is being Cultivated and shalf provide the original
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letter to the Enforcing Officer for review and copying upon request. The Sheriff may prescribe forms for such letters.
(11) The use of Hazardous Materials shall be prohibited in the Cultivation of Marijuana except for limited quantities of Hazardous Materials that are below State of California threshold levels of 55 gallons of liquid, 500 pounds of solid, or 200 cubic feet of compressed gas. Any Hazardous Materials stored shall maintain a minimum setback distance of 100-feet from any private drinking water well, spring, water canal, creek or other surface water body, and 200-feet from any public water supply well. The production of any Hazardous Waste as part of the Cultivation process shall be prohibited.
(K) Nothing herein shall limit the ability of Fire District or other appropriate County employees or agents from entering the property to conduct the inspections authorized by or necessary to ensure compliance with this Art.icle or the ability of the Sheriff to make initial inspections or independent compliance checks. The Sheriff is authorized to determine the number and timing of inspections that may be required.
Section G-IV 5.5 Change in Land Use.
The County shall encourage any person proposing to construct or operate a new or relocated School, School Bus Stop, School Evacuation Site, Church, Park, Child Care Center, or YouthOriented Facility to consider whether the proposed location of such use is within one thousand (1000) feet of a Premises upon which Marijuana is known to be cultivated. Upon request, the Sheriff's Office shall inform any person proposing to construct or operate a new or relocated School, School Bus Stop, School Evacuation Site, Church, Park, Child Care Center, or YouthOriented Facility regarding whether there is a Premises upon which Marijuana is known to be Cultivated within one thousand (1000) feet of the proposed location of such use, and, if so, shall also inform the person, owning, leasing, occupying, or having charge or possession of the Premises upon which Marijuana is known to be cultivated that such a use is being proposed within one thousand (1000) feet of the Premises.
Section G-IV 5.6 Notice to Abate Unlawful Marijuana Cultivation.
Whenever the Enforcing Officer determines that a public nuisance as described in this Article exists on any Premises within the unincorporated area of Nevada County, he or she is authorized to notify the owner(s) and/or occupant(s) of the Premises, through issuance of a "Notice to Abate Unlawful Marijuana Cultivation;" provided, however, that nothing in this Article shall affect or preclude the Sheriff from taking immediate abatement actiOn without notice of any Marijuana which is Cultivated, possessed, or distributed in violation of state law.
Section G-IV 5.7 Contents of Notice
The Notice set forth in Section G-IV5.6 shall be in writing and shall:
(A) Identify the owner(s) of the Parcel upon which the nuiSance exists, as named in the records of the County Assessor, and identify the occupanl(s), if other than the owner(s), and if known or reasonably identifiable.
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(B) Describe the location of such Parcel by its commonly used street address, giving the name or number of the street, road or highway and the number, if any, of the property.
(C) Identify such Parcel by reference to the Assessor's Parcel Number.
(D) Contain a statement that unlawful Marijuana Cultivation exists on the Parcel and that it has been determined by the Enforcing Officer to be a public nuisance as described in this Article.
(E) Describe the unlawful Marijuana Cultivation that exists and the actions required to abate it.
(F) Contain a statement that the legal owner or occupant is required to abate the unlawful Marijuana Cultivation within five (5) calendar days after the date that said Notice was served.
(G) Contain a statement that the legal owner or occupant may, within five (5) calendar days after the date that said Notice was served, make a request in writing to the Clerk of the Board of Supervisors for a hearing to appeal the determination of the Enforcing Officer that the conditions existing constitute a public nUisance, or to show other cause why those conditions should not be abated in accordance with the Notice and the provisions of this Article.
(H) Contain a statement that, unless the legal owner or occupant abates the unlawful Marijuana Cultivation, or requests a hearing before the Board of Supervisors or its designee, within the time prescribed in the Notice, the Enforcing Officer will abate the nuisance at the legal owner and/or occupant's expense. It shall also state that the abatement costs, including administrative costs, may be made a special assessment added to the County assessment rolf and become a lien on the real property, or be placed on the unsecured tax roll.
Section G-IV 5.8 Service of Notice to Abate
The Notice set forth in Sections G-IV 5.6 and G-IV 5.7 shall be served in the following manner:
(A) By delivering it personally to the legal owner of the Parcel and to the occupant, or by mailing it by regular United States mail, together with a certificate of mailing, to the occupant of the Parcel at the address thereof, and to any non-occupying legal owner at his or her address as it appears on the last equalized assessment roll, except that:
(1) If the records of the County Assessor show that the ownership has changed since the last equalized assessment roll was completed, the Notice shall also be mailed to the new owner at his or her address as it appears in said records, or
(2) In the event that, after reasonable effort, the Enforcing Officer is unable to serve the Notice as set forth above, service shall be accomplished by posting a copy of the Notice on the Parcel upon which the nuisance exists as follows: Copies of the Notice shall be posted along the frontage of the subject Parcel, and at such other locations on the Parcel reasonably likely to provide notice to the owner and any
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person known by the Enforcing Officer to be in possession of the Parcel. In no event shall fewer than two (2) copies of the Notice be posted on a Parcel pursuant to this section.
(B) The date of service is deemed to be the date of personal delivery or posting, or three (3) days after deposit in the U.S. Mail.
Section G-IV 5.9 Administrative Review.
(A) The Board of Supervisors delegates the responsibility to conduct a lien hearing in conformance with this Article to a Hearing Officer.
(B) Any person upon whom a Notice to Abate Unlawful Marijuana Cultivation has been served may appeal the determination of the Enforcing Officer that the conditions set forth in the Notice constitute a public nuisance to the Hearing Officer, or may show cause before the Hearing Officer why those conditions should not be abated in accordance with the provisions of this Article. Any such administrative review shall be commenced by filing a written request for a hearing with the Sheriff's Office within five (5) calendar days after the date that said Notice was served. The written request shall include a statement of all facts supporting the appeal. The time requirement for filing such a written request shall be deemed jurisdictional and may not be waived. In the absence of a timely filed written request that complies fully with the requirements of this Section, the findings of the Enforcing Officer contained in the Notice shall become final and conclusive on the sixth day following service of the Notice.
(C) Upon timely receipt of a written request for hearing which complies with the requirements of this Section, the Sheriff's Office shall set a hearing date not less than five (5) days or more than thirty (30) days from the date the request was filed. The Sheriff's Office shall send written notice of the hearing date to the requesting party, to any other parties upon whom the Notice was served, and to the Enforcing Officer.
(0) Any hearing conducted pursuant to this Article need not be conducted according to technical rules relating to evidence, witnesses and hearsay. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. The Hearing Officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time.
(E) The Hearing Officer may continue the administrative hearing from time to time.
(F) The Hearing Officer shall consider the matter de novo, and may affirm, reverse, or modify the determinations contained in the Notice to Abate Unlawful Marijuana Cultivation. The Hearing Officer shall issue a written decision in the form of a resolution, which shall include findings relating to the existence or nonexistence of the alleged unlawful Marijuana Cultivation, as well as findings concerning the propriety and means of abatement of the conditions set forth in the Notice. Such decision shall be mailed to, or personally served upon, the party requesting the hearing, any other parties upon whom the Notice was served, and the Enforcing Officer.
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(G) The decision of the Hearing Officer shall be final and conclusive.
Section G-IV 5.10 Liability for Costs.
(A) In any enforcement action brought pursuant to this Article, whether by administrative proceedings, judicial proceedings, or summary abatement, each person who causes, permits, suffers, or maintains the unlawful Marijuana Cultivation to exist shall be liable for all costs incurred by the County, including, but not limited to, administrative costs, and any and all costs incurred to undertake, or to cause or compel any responsible party to undertake, any abatement action in compliance with the requirements of this Article, whether those costs are incurred prior to, during, or following enactment of this Article;
(8) n any action by the Enforcing Officer to abate unlawful marijuana cUltivation under this Article, whether by administrative proceedings, judicial proceedings, or summary abatement, the prevailing party shall be entitled to a recovery of the reasonable attomeys' fees incurred. Recovery of attorneys' fees under this subdivision shall be limited to those actions or proceedings in which the County elects, at the initiation of that action or proceeding, to seek recovery of its own attorneys' fees. In no action, administrative proceeding, or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attomeys' fees incurred by the County in the action or proceeding.
Section G-IV 5.11 Abatement by Owner or Occupant.
Any owner or occupant may abate the unlawful Marijuana Cultivation or cause it to be abated at any time prior to commencement of abatement by, or at the direction of, the Enforcing Officer.
Section G-IV 5.12 Enforcement.
(A) Whenever the Enforcing Officer becomes aware that an owner or occupant has failed to abate any unlawful Marijuana Cultivation within five (5) days of the date of service of the Notice to Unlawful Marijuana Cultivation, unl.ess timely appealed, or as of the date of the decision of the Hearing Officer requiring such abatement, the Enforcing Officer may take one or more of the following actions:
(1) Enter upon the property and abate the nuisance by County personnel, or by private contractor under the direction of the Enforcing Officer. The Enforcing Officer may apply to a court of competent jurisdiction for a warrant authorizing entry upon the property for purposes of undertaking the work, if necessary. If any part of the work is to be accomplished by private contract, that contract shall be submitted to and approved by the Board of Supervisors prior to commencement of work. Nothing herein shall be construed to require that any private contract under this Code be awarded through competitive bidding procedures where such procedures are not required by the general laws of the State of California; and/or
(2) Request that the County Counsel commence a civil action to redress, enjoin, and abate the public nuisance; and/or
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(3) Issue administrative citations in accordance with Section L·II 5.23, et seq., of the Nevada County Land Use and Development Code; and/or
(4) Take any other legal action as may be authorized under State or local law to abate and/or enforce the provisions of this Article.
Section G·IV 5.13 Accounting.
The Enforcing Officer shall keep an account of the cost of every abatement carried out and shall render a report in writing, itemized by parcel, to the Hearing Officer showing the cost of abatement and the administrative costs for each parcel.
Section G-IV 5.14 Notice of Hearing on Accounting: Waiver by Payment.
Upon receipt of the account of the Enforcing Officer, the Sheriff's Office shall deposit a copy of the account pertaining to the property of each owner in the mail addressed to the owner and include therewith a notice informing the owner that, at a date and time not less than five (5) business days after the date of mailing of the notice, the Hearing Officer will meet to review the account and that the owner may appear at said time and be heard. The owner may waive the hearing on the accounting by paying the cost of abatement and the cost of administration to the Enforcing Officer prior to the time set for the hearing by the Hearing Officer. Unless otherwise expressly stated by the owner, payment of the cost of abatement and the cost of administration prior to said hearing shall be deemed a waiver of the right thereto and an admission that said accounting is accurate and reasonable.
Section G-IV 5.15 Hearing on Accounting.
(A) At the time fixed, the Hearing Officer shall meet to review the report of the Enforcing Officer. An owner may appear at said time and be heard on the questions whether the accounting, so far as it pertains to the cost of abating a nuisance upon the land of the owner is accurate and the amounts reported reasonable. The cost of administration shall also be reviewed.
(8) The report of the Enforcing Officer shall be admitted into evidence. The owner shall bear the burden of proving that the accounting is not accurate and reasonable.
(C) The Hearing Officer shall also determine whether or not the owner(s) had actual knowledge of the unlawful Marijuana Cultivation, or could have acquired such knowledge through the exercise of reasonable diligence. If it is determined at the hearing that the owner(s) did not have actual knowledge of the unlawful Marijuana Cultivation, and could not have acquired such knowledge through the exercise of reasonable diligence, costs for the abatement shall not be assessed against such Parcel or otherwise attempted to be collected from the owner( s) of such Parcel.
Section G·IV 5.16 Modifications.
The Hearing Officer shall make such modifications in the accounting as it deems necessary and thereafter shall confirm the report by resolution.
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Section G-IV 5.17 Special Assessments and Lien.
The Board of Supervisors may order that the cost of abating nuisances pursuant to this Article and the administrative costs as confirmed by the Board be placed upon the County tax roll by the County Auditor as special assessments against the respective parcels of land, or placed on the unsecured roll, pursuant to section 25845 of the Government Code; provided, however, that the cost of abatement and the cost of administration as finally determined shall not be placed on the tax roll if paid in full prior to entry of said costs on the tax roll. The Board of Supervisors may also cause notices of abatement Ii.en to be recorded against the respective parcels of real property pursuant to section 25845 of the Government Code.
Section G-IV 5.18 Summary Abatement.
Notwithstanding any other provision of this Article, when any unlawful Marijuana Cultivation constitutes an immediate threat to the public health or safety, and where the procedures set forth in Sections G-IV 5.6 through G-IV 5.12 would not result in abatement of that nuisance within a short enough time period to avoid that threat, the Enforcing Officer may direct any officer or employee of the County to summarily abate the nuisance. The Enforcing Officer shall make reasonable efforts to notify the persons identified in Section G-IV 5.7 but the formal notice and hearing procedures set forth in this Article shall not apply. The County may nevertheless recover its costs for abating that nuisance in the manner set forth in Sections G-IV 5.13 through G-IV5.17.
Section G-IV 5.19 No Duty to Enforce.
Nothing in this Article shall be construed as imposing on the Enforcing Officer or the County of Nevada any duty to issue a Notice to Abate Unlawful Marijuana Cultivation, nor to abate any unlawful Marijuana Cultivation, nor to take any other action with regard to any unlawful Marijuana Cultivation, and neither the Enforcing Officer nor the County shall be held liable for failure to issue an order to abate any unlawful Marijuana Cultivation, nor for failure to abate any unlawful Marijuana Cultivation, nor for failure to take any other action with regard to any unlawful Marijuana Cultivation.
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HSC §11362.5 (COMPASSIONATE USE ACT)
(a) This section shall be known and may be cited as the Compassionate Use Act of 1996.
(b) (1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
(A) 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 in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
(B) To 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.
(C) To 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.
(2) Nothing 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 nonmedical purposes.
(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
(d) 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.
(e) For the purposes of this section, "primary caregiver" means the individual designated by the person exempted under this section who has consistentl y assumed responsibility for the housing, health, or safety of that person.
ATTACHMENT B
1 MEDICAL MARIJUANA PROGRAM
2 HSC § 11362. 7
3 For purposes of this article, the following definitions shall apply:
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(c) "Person with an identification card" means an individual who is a qualified patient who has applied for and received a valid identification card pursuant to this article.
(d) "Primary caregiver" means the individual, designated by a qualified patient orby a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person, and may include any of the following:
(1) In any case in which a qualified patient or person with an identification card receives medical care or supportive services, or both, from a clinic licensed pursuant to Chapter 1 (commencing with Section 1200) of Division 2, a health care facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2, a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 (commencing with Section 1568.01) of Division 2, a residential care facility for the elderly licensed pursuant to Chapter 3.2 (commencing with Section 1569) of Division 2, a hospice, or a home health agency licensed pursuant to Chapter 8 (commencing with Section 1725) of Division 2, the owner or operator, or no more than three employees who are designated by the owner or operator, of the clinic, facility, hospice, or home health agency, if designated as a primary caregiver by that qualified patient or person with an identification card.
(2) An individual who has been designated as a primary caregiver by more than one qualified patient or person with an identification card, if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver.
(3) An individual who has been designated as a primary caregiver by a qualified patient or person with an identification card who resides in a city or county other than that of the primary caregiver, if the individual has not been designated as a primary caregiver by any other qualified patient or person with an identification card.
(e) A primary caregiver shall be at least 18 years of age, unless the 23 primary caregiver is the parent of a minor child who is a qualified patient or a
person with an identification card or the primary caregiver is a person 24 otherwise entitled to make medical decisions under state law pursuant to
Sections 6922, 7002, 7050, or 7120 of the Family Code. 25
(f) "Qualified patient" means a person who is entitled to the protections 26 of Section 11362.5, but who does not have an identification card issued
pursuant to this article. 27
28 ATTACHMENT C, Page 1
1 (g) "Identification card" means a document issued by the State Department of Health Services that document identifies a person authorized to
2 engage in the medical use of marijuana and the person's designated primary caregiver, if any.
3 (h) "Serious medical condition" means all of the following medical
4 conditions:
5 (1) Acquired immune deficiency syndrome (AIDS).
6 (2) Anorexia.
7 (3) Arthritis.
8 (4) Cachexia.
9 (5) Cancer.
10 (6) Chronic pain.
11 (7) Glaucoma.
12 (8) Migraine.
13 (9) Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis.
14 (10) Seizures, including, but not limited to, seizures associated with
15 epilepsy.
16 (11) Severe nausea.
17 (12) Any other chronic or persistent medical symptom that either:
18 (A) Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990
19 (Public Law 101-336).
20 (B) If not alleviated, may cause serious harm to the patient's safety or
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physical or mental health.
HSC §11362.765
(a) Subject to the requirements of this article, the individuals specified in . 24 subdivision (b) shall not be subject, on that sole basis, to criminal liability
under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. 25 However, nothing in this section shall authorize the individual to smoke or
otherwise consume marijuana unless otherwise authorized by this article, nor 26 shall anything in this section authorize any individual or group to cultivate or
distribute marijuana for profit. 27
28 (b) Subdivision (a) shall apply to all of the following:
ATTACHMENT C, Page 2
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(1) A qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use.
(2) A designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes, in amounts not exceeding those established in subdivision ( a) of Section 11362.77, only to the qualified patient ofthe primary caregiver, or to the person with an identification card who has designated the individnal as a primary caregiver.
(3) Any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person. '
( c) A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360. [Added by Stats. 2003, Ch. 875, Sec. 2. Effective January 1, 2004]
HSC §11362.768
(a) This section shall apply to individuals specified in subdivision (b) of Section 11362.765.
(b) No medical marijuana cooperative, collective, dispensary, operator, 16 establishment, or provider who possesses, cultivates, or distributes medical
marijuana pursuant to this article shall be located within a 600-foot radius of a 17 school.
18 ( c) The distance specified in this section shall be the horizontal distance measured in a straight line from the property line of the school to the closest
19 property line of the lot on which the medical marijuana cooperative, collective, dispensary, operator, establishment, or provider is to be located without regard
20 to intervening structures.
21 (d) This section shall not apply to a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider that is also a
22 licensed residential medical or elder care facility.
23 (e) This section shall apply only to a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider that is authorized by
24 law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a local business
25 license.
26 (f) Nothing in this section shall prohibit a city, county, or city and county from adopting ordinances or policies that further restrict the location or
27 establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider.
28 ATTACHMENT C, Page 3
1 (g) Nothing in this section shall preempt local ordinances, adopted prior to January 1, 2011, that regulate the location or establishment of a medical
2 marijuana cooperative, collective, dispensary, operator, establishment, or provider.
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(h) For the purposes of this section, "school" means any public or private school providing instruction in kindergarten or grades 1 to 12, inclusive, but does not include any private school in which education is primarily conducted in private homes. [Added by Stats. 2010, Ch. 603, Sec. 1. Effective January 1, 2011]
HSC §11362.77
(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.
(b) If a qualified patient or. primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs.
(c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a).
(d) Only the dried mature processed flowers of female cannabis plant or 15 the plant conversion shall be considered when determining allowable quantities
of marijuana under this section. 16
(e) The Attorney General may recommend modifications to the 17 possession or cultivation limits set forth in this section. These
recommendations, if any, shall be made to the Legislature no later than 18 December 1, 2005, and may be made only after public comment and
consultation with interested organizations, including, but not limited to, 19 patients, health care professionals, researchers, law enforcement, and local
governments. Any recommended modification shall be consistent with the 20 intent of this article and shall be based on currently available scientific
research. 21
(f) A qualified patient or a person holding a valid identification card, or 22 the desiguated primary caregiver of that qualified patient or person, may
possess amounts of marijuana consistent with this article. [Added by Stats. 23 2003, Ch. 875, Sec. 2. Effective January 1, 2004]
24 HSC §11362.775
25 Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards,
26 who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on
27 the basis of that fact be subject to state criminal sanctions under Section 11357,
28 ATTACHMENT C, Page 4
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11358, 11359, 11360, 11366, 11366.5, or 11570. [Added by Stats. 2003, Ch. 875, Sec. 2. Effective January 1,2004]
HSC §11362.785
(a) Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained.
(b) Notwithstanding subdivision (a), a person shall not be prohibited or 7 prevented from obtaining and submitting the written information and
documentation necessary to apply for an identification card on the basis that the 8 person is incarcerated in a jail, correctional facility, or other penal institution in
9 which prisoners reside or persons under arrest are detained.
(c) Nothing in this article shall prohibit a jail, correctional facility, or 10 other penal institution in which prisoners reside or persons under arrest are
detained, from permitting a prisoner or a person under arrest who has an 11 identification card, to use marijuana for medical purposes under circumstances
that will not endanger the health or safety of other prisoners or the security of 12 the facility.
13 (d) Nothing in this article shall require a governmental, private, or any . other health insurance provider or health care service plan to be liable for any
14 claim for reimbursement for the medical use of marijuana. [Added by Stats.
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2003, Ch. 875, Sec. 2. Effective January 1, 2004]
HSC § 11362.79
Nothing in this article shall authorize a qualified patient or person with an 17 identification card to engage in the smoking of medical marijuana under any of
the following circumstances: 18
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(a) In any place where smoking is prohibited by law.
(b) In or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence.
(c) On a schoolbus.
(d) While in a motor vehicle that is being operated.
(e) While operating a boat. [Added by Stats. 2003, Ch. 875, Sec. 2. Effective January 1, 2004]
HSC §11362.81
(a) A person specified in subdivision (b) shall be subject to the following 26 penalties:
27 (1) For the first offense, imprisonment in the county jail for no more
28 than six months or a fine not to exceed one thousand dollars ($1,000), or both.
ATTACHMENT C, Page 5
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(2) For a second or subsequent offense, imprisonment in the county jail for no more than one year, or a fine not to exceed one thousand dollars ($1,000), or both.
(b) Subdivision (a) applies to any ofthe following:
(1) A person who fraudulently represents a medical condition or fraudulently provides any material misinformation to a physician, county health department or the county's designee, or state or local law enforcement agency or officer, for the purpose of falsel y obtaining an identification card.
(2) A person who steals or fraudulently uses any person's identification card in order to acquire, possess, cultivate, transport, use, produce, or distribute marijuana.
(3) A person who counterfeits, tampers with, or fraudulently produces an identification card.
(4) A person who breaches the confidentiality requirements of this article to information provided to, or contained in the records of, the department or of a county health department or the county's designee pertaining to an identification card program.
(c) In addition to the penalties prescribed in subdivision (a), any person described in subdivision (b) may be precluded from attempting to obtain, or obtaining or using, an identification card for a period of up to six months at the discretion of the court.
(d) In addition to the requirements of this article, the Attorney General shall develop and adopt appropriate guidelines to ensure the security and nondiversion of marijuana grown for medical use by patients qualified under the Compassionate Use Act of 1996. [Added by Stats. 2003, Ch. 875, Sec. 2. Effective January 1, 2004]
HSC §11362.83.
Nothing in this article shall prevent a city or other local governing body from adopting and enforcing any of the following:
(a) Adopting local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective.
(b) The civil and criminal enforcement of local ordinances described in subdivision (a).
(c) Enacting other laws consistent with this article. [Amended by Stats. 2011, Ch. 196, Sec. 1. Effective January 1, 2012. Note: Section 11362.9 is in Article 2, following Section 11362.5]
ATTACHMENT C, Page 6
DECLARATION OF SERVICE BY MAIL
I, G. SEAN METROKA, Court Executive Officer, County of Nevada, being a citizen of the
United States, a resident of the County of Nevada, and not a party to the cause, do hereby certify
that I mailed copies ofthe
Ruling on Order to Show Cause: re Preliminary Injunction
of which the original is on file in Case No. 78691 to the following named persons:
Jeffrey Lake JEFFREY A LAKE 11650 Iberia Place, Suite 216 San Diego, CA 92128
Marcos Kropf OFFICE OF THE COUNTY COUNSEL 950 Maidu Ste. 240 Nevada City, CA 95959
and that the envelope with prepaid postage was sealed and placed for collection and mailing in
the United States Post Office at Nevada City, California on July 27,2012.
G. SEAN METROKA Court Executive Officer Nevada County Superior Court
