Court: Fresno County can’t ‘criminalize’ cannabis growers

The Fifth District Court of Appeal has overturned the dismissal of a challenge to Fresno County’s cannabis cultivation ban.

The 32-page ruling issued Tuesday rejected several arguments made by Fresno resident Diana Kirby, who filed suit after Fresno County’s medical cannabis ban was passed in 2014. But the appellate panel concluded that Kirby’s attorneys had raised a valid cause of action against the county’s “criminalization” of growers.

…We conclude that the provision in the ordinance that classifies the cultivation of medical marijuana as a misdemeanor is preempted by California’s extensive statutory scheme addressing crimes, defenses and immunities relating to marijuana. Among other things, the attempt to criminalize possession and cultivation is not consistent with the obligation [Health and Safety Code] section 11362.71, subdivision (e) imposes on local officials not to arrest certain persons possessing or cultivating marijuana. Therefore, Kirby has stated a narrow cause of action challenging the validity of the criminalization provision. We therefore reverse the judgment of dismissal.”

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Ordinance 14-001 declares cannabis cultivation to be a public nuisance and a misdemeanor. The growing ban was updated this year with the passage of Ordinance 15-003. Most enforcement involves citations, plant removal and heavy fines, though some growers are still charged criminally.

Attorneys with the law firm of Henry G. Wykowski & Associates said Fresno County’s’s ordinance was “an overly broad attack” on the rights of medical marijuana patients, Courthouse News Service reported.

“Importantly, the court determined that cultivation of medical marijuana in California could in no way be deemed a criminal act,” the firm said in a statement. “As for the remainder of the court’s decision, we are evaluating our client’s options to further rectify the invidious effects of this ill-conceived ordinance.”

Ellen Komp, deputy director of California NORML, offered this response.

“This ought to invalidate any local ordinance that makes it a crime to grow or distribute marijuana despite state law. Also encouraging are the affirmations made by the court that Congress does not have the authority to compel state or local officers to enforce federal regulatory programs.”

“As we know, however, local jurisdictions and Fresno in particular are nonetheless sanctioning medical marijuana cultivation through cruel civil penalties, notwithstanding Prop. 215’s stated intent to exclude bona fide patients from ‘criminal prosecution or sanction.’” Komp said. “I see no citation, absent medical marijuana cases, for the court’s assertion that it was necessary for the state to specifically state that it intended to preclude local interference with state law.”

While the Fifth District panel upheld the county growing ban, it said a misdemeanor could only be charged if a grower refused to remove the plants after being given notice of violation and a reasonable time to abate. The court also noted the “ambiguity” of the Compassionate Use Act and Senate Bill 420, Fresno Cannabis Association president Michael Green said.

“Cannabis patients are often treated like criminals in Fresno County,” Green said. “This ruling makes clear that the county can’t threaten patients and growers with arrest and prosecution while enforcing a civil zoning ordinance. We’re very grateful to Diana Kirby and her attorneys for taking on this important appeal.”