A growing problem

Medi-pot advocates file lawsuit protesting Butte County’s new cultivation law

Anne Murphy and her husband, Ron Halvorson, are worried they’ll no longer have access to medical marijuana as a result of Measure A.

Anne Murphy and her husband, Ron Halvorson, are worried they’ll no longer have access to medical marijuana as a result of Measure A.

Photo by Howard Hardee

A few years ago, Anne Murphy of Chico had accepted that her disease would eventually put her in a wheelchair. In 2005, she’d been diagnosed with primary-progressive multiple sclerosis, a form of the degenerative illness that doesn’t go into remission, and Murphy’s body had steadily weakened to the verge of complete immobilization.

Then she started regularly ingesting cannabis. For the last 2 1/2 years, she’s used medical marijuana to remedy specific symptoms, such as uncontrollable spasms in her limbs, and to stave off her disease’s general progression—all with minimal use of traditional pharmaceutical drugs, she says. Now Murphy, 68, walks with a cane and feels more mobile than she has in years. Using pot medicinally has also helped Murphy and her diabetic husband, 61-year-old Ron Halvorson, manage their weight.

“Cannabis has had the greatest impact for us,” Murphy said.

That’s why the couple, along with many other medical marijuana users and growers throughout Butte County, fears what will come of Measure A, the ballot initiative passed into law by voters last November. Medi-pot advocates argue that the ordinance is prohibitively restrictive and ultimately will prevent many patients from accessing their medicine.

That’s the foundation for a lawsuit filed in Butte County Superior Court on Feb. 3 by San Rafael-based attorney Scot Candell, who is representing Donald Ehrsam, Raymond Sperry and Gina Endler of Oroville and Douglas Gunning of Berry Creek. The lawsuit seeks an injunction prohibiting enforcement of the ordinance.

Candell told the CN&R that Measure A “violates the spirit of [California’s] Compassionate Use Act—that everyone can get their medicine, and everyone is treated equally.”

“Measure A stomps on patients’ rights,” echoed Murphy, who is not involved in the lawsuit but supports it. “We are entitled by law to have access to cannabis.”

The state’s Compassionate Use Act—aka Proposition 215—was passed in 1996 primarily to allow patients with a valid doctor’s recommendation to grow and possess marijuana for personal medical use. However, under a 2013 California Supreme Court ruling, California cities and counties have discretion to regulate medical cannabis cultivation however they see fit.

Members of the Butte County Board of Supervisors began crafting a local cultivation ordinance back in 2011, and in 2013 they approved guidelines that limited the size of gardens based on number of plants—not on the square footage of the gardens—maxing out at 99 plants on lots 40 acres or larger.

But vocal constituents urged the board to amend the ordinance to address issues related to pot grows in the county’s eastern foothills—namely, environmental degradation caused by grading activity, pesticides and fertilizer, a perceived increase in crime, and general nuisances such as the plant’s distinct odor. The first round of amendments was approved last December, and more followed in early 2014.

Among other requirements, the amendments limited gardens to a maximum of 150 square feet, and just 50 square feet on lots 5 acres or smaller. Considering those guidelines overly restrictive, medi-pot proponents gathered signatures and crafted their own ordinance—Measure B—which would keep the existing ordinance intact. Measure A, on the other hand, was that same ordinance with all of the amendments included.

But on Election Day (Nov. 4), Measure A passed with about 60 percent of the vote. As District Attorney Mike Ramsey recently told the CN&R, he believes the county’s voters spoke emphatically.

“The public was clear,” he said. “They said, ‘We’re going to allow some growing for true medical patients, but we want to greatly restrict the commercial growing going on in our hills to the detriment of our environment and safety.’”

Candell acknowledges that Butte County has the right to impose restrictions on medical marijuana cultivation, but he maintains the new ordinance unjustly discriminates against certain growers and users. For instance, on parcels greater than 5 acres and smaller than 10 acres, gardens that don’t exceed 100 square feet are permissible. However, a parcel of that size requires more than one doctor’s recommendation.

One of the plaintiffs in the lawsuit, Douglas Gunning, falls into this category. He lives alone on 6 acres in Berry Creek.

“He can’t grow a single plant,” Candell said. “So, he has to go get a roommate if he wants to grow his medicine? That doesn’t make any sense.”

In a phone call, County Counsel Bruce Alpert maintained that “isn’t an accurate depiction of how our ordinance works.” However, the county’s website does specify that properties of that size “must have two or more recommendations associated with the plants.”

Candell also alleges that the ordinance discriminates against patients who are wheelchair-bound—like plaintiff Gina Endler of Oroville, who is paraplegic and applies cannabis topically for pain relief, she said over the phone. In the 50-square-foot area she’s allowed, building a 36-inch wide path through the garden to access all four sides of each plant would take up most of the space, she says, limiting her to growing one or two plants—not enough for a year’s worth of medical needs.

“Why should somebody be limited to one plant just because they’re in a wheelchair?” Candell asked.

Murphy and Halvorson said the garden restrictions also bode poorly for medical marijuana collectives, a model on which they depend for their medicine. Previously, growers on large parcels could have as many as 99 plants, and therefore often supplied more than a dozen patients, many of whom couldn’t afford to purchase cannabis otherwise. The new ordinance has made those larger operations illegal.

That’s bad news for Murphy and Halvorson. They live in a small apartment in Chico, where they can’t legally grow marijuana of their own. Neither can work due to disability, so they can’t afford to buy it, either, even if there were dispensaries in Butte County.

“We still have cannabis from last year’s grow,” Halvorson said. “But when we run out, it’s going to be a problem.”

Alpert told the CN&R that county officials very much expected a lawsuit along these lines.

“These issues are generally raised whenever a local jurisdiction tries to regulate the cultivation of medical marijuana,” he said. “This is nothing new in terms of allegations—why the plaintiffs thought that what the county did was improper or illegal. We disagree.”

Based on decisions made by various courts throughout California, Alpert said, “the lawsuit has no merit.” He cited the 3rd District Court of Appeals recently upholding the city of Live Oak’s complete ban of medical marijuana cultivation.

The county must respond to the lawsuit within 30 days of filing.