Still on the pot
DA calls medical-marijuana ordinance unconstitutional
Butte County District Attorney Mike Ramsey dropped a buz kill at the Aug. 28 Board of Supervisors meeting on those looking to restrict medical-marijuana cultivation when he said an ordinance under consideration was unconstitutional.
As a result, the board is back to square one, and soon to consider adopting an ad-hoc committee representing all sides of the matter to try to reach a compromise on how to grow and dispense medical marijuana.
The ordinance—based on one adopted in Kings County last fall—would have outlawed all outdoor marijuana grows, a plan opponents called impractical and dangerous because of an increased fire hazard from grow lights. It was set to replace the one Butte County adopted last year but was rejected by 55 percent of voters in the referendum-forced Measure A during the June primary election. Opponents of that plan said it was too restrictive in that it disallowed grows on parcels of a half-acre or smaller.
Ramsey told the board that while he was sympathetic with county efforts to address the “local medical-marijuana industry,” there were legal problems with the latest proposed ordinance. Namely, he said, enforcement of medical-marijuana laws must be done through code enforcement and not criminal procedures.
“It does go too far in authorizing criminal penalties,” the DA said. “It can’t be enforced.”
He said the ordinance does not follow the spirit of Proposition 215, the Compassionate Use Act passed by voters in 1996 allowing for the cultivation and use of marijuana with a doctor’s recommendation. Ramsey said the ordinance would allow him to prosecute “someone growing one plant in her back yard. Under 215 I could not prosecute, but the ordinance under consideration says I could.
“It won’t happen and it’s not going to happen. It conflicts with state law. Prop. 215 says to ensure patients and primary caregivers are not subject to criminal prosecution. You can save [the ordinance] by removing the criminal penalty and making it a civil penalty.”
There were other problems with the ordinance, cost being a big one.
Paul Hahn, the county’s chief administrative officer, said the county would have to hire three additional code-enforcement officers, two to three sheriff’s deputies, one additional deputy county counsel and one paralegal—eight new positions that would cost $750,000 to $1 million—to enforce the law.
Supervisor Bill Connelly said the important thing was protecting neighbors forced to live next door to marijuana growers.
“Who are you going to respect? The poor guy trying to have a barbecue in his back yard or the guy growing six plants?” he asked.
Ramsey said the problems in the county stem from those he called “profiteers;” people making money off of marijuana under the cover of Prop. 215. He said large outdoor grows began ramping up in California in 2009 when people took a cue from a federal memo from the Obama administration stating that the feds would not prosecute people following their states’ medical-marijuana laws.
“It was a case of ‘Olly olly oxen free,’ ” he said. “Now California is the leading supplier of pot in the United States.”
Sheriff Jerry Smith said between January and July of this year 35,194 plants had been seized, along with 51 weapons, and 42 arrests made. That includes 28,000 plants and two dead men found at a Magalia site.
Supervisor Larry Wahl asked the sheriff what the board should do. Smith said that the panel should either take Ramsey’s advice or let the Sheriff’s Department “try to enforce it and then see where it lands in court.”
Forty-five people addressed the board, the vast majority of them arguing on behalf of medical-marijuana growers. The first speaker, however, said she had been a Butte County resident since 1963 and that her family had had problems with neighbors growing marijuana since 1974. The person following her said while he recognized the need for medical marijuana, the odor growing plants produced was driving down property values. Another woman said her family can’t sit on their patio because of the smell, and that she’s watched her neighbor’s children playing among the marijuana plants.
She was followed by a man who said he appreciated the dilemma the board was facing, but when it comes to safety issues gang-related crime should take precedence.
And so it went, with patients saying they needed their medicine. One man wearing what looked like a brand-new white lab coat, and who purported to be a retired cardiologist from Sacramento, said if marijuana plants are outlawed all plants will have to be outlawed.
A man who said he’d been diagnosed with multiple sclerosis explained that without access to marijuana he is forced to spend $4,500 a month on prescription drugs and that growing marijuana indoors would cost him $2,500 a month.
Another man who said he lives in Connelly’s district said it was time users and growers become part of the process “rather than just getting lectured to at these meetings.”
Supervisor Maureen Kirk spoke first after the public comment was closed.
“In light of what Mr. Ramsey said, we need a committee with people from both sides and the DA and Sheriff’s Office,” she said. “We need some kind of committee.”
Supervisor Kim Yamaguchi agreed and made a motion that after some discussion called for Hahn and County Counsel Bruce Alpert to create an ad-hoc committee to try finally to forge a medical-marijuana ordinance that is fair to all sides. That plan should be presented at the board’s next meeting.