If a new ordinance in Santa Maria receives final approval, then medical marijuana patients living in the city will still be able receive their medicine, but they won’t be able to grow it.
Despite having several locals speaking against the ordinance at its Dec. 1 meeting (and only one for it), the Santa Maria City Council voted 5-0 to approve an ordinance to ban the cultivation of medical marijuana, even for private use.
The ordinance also prohibits mobile medical dispensaries from setting up shop within city limits, although deliveries from outside dispensaries would be allowed.
To justify the ban, the council members fell back on arguments that marijuana is an addictive drug, entices kids, is a gateway drug, and that dispensaries and grow operations are a risk to public safety. However, they agreed that it has medical use and that patients should be allowed deliveries from outside the city.
“It’s the compassionate thing to do,” Councilmember Terri Zuniga said.
Assistant City Attorney Kristine Mollenkopf introduced the ordinance to the City Council with two alternatives for personal cultivation: one that bans it and one that allows it under a regulatory framework, an option the Planning Commission endorsed.
Following on the footsteps of a trio of bills signed in October by Gov. Jerry Brown to regulate the multi-billion dollar medical marijuana industry, Mollenkopf told the council members at the meeting that her office was trying to get ahead of the March 1, 2016, deadline imposed on local municipalities to establish laws regulating the cultivation of marijuana.
The bills—SB 266, AB 243, and AB 643—are collectively known as the Medical Marijuana Regulation and Safety Act and provide a regulatory framework for the medical marijuana industry in California, which has been in place since the approval of Proposition 215 in 1996.
The act establishes a new state office known as the Bureau of Medical Marijuana Regulation and has the power to regulate licenses, growers, and product quality testing standards, among other things.
Authored by Assemblyman Jim Wood (D-Healdsburg), AB 243 gives cities and counties the power to regulate cultivation, but it doesn’t distinguish between personal or commercial use.
Banning personal cultivation of medical marijuana is controversial. Several cities and counties throughout the state have already banned personal cultivation despite Proposition 215—which allows patients to grow for personal use without fear of criminal prosecution.
According to Paul Ramey, a spokesperson for Assemblyman Wood, allowing local governments to regulate personal cultivation wasn’t the original intent of AB 243. But it’s not that straightforward, he added.
“It wasn’t intended to change what [Proposition] 215 says,” Ramey told the Sun.
Speaking to the Sun, Connie McLaughlin-Miley, pharmacist and operator of San Luis Obispo’s Sweet Green Apothecary dispensary, disagreed with the City Council’s justification for approving the new ordinance and said that not allowing patients to grow for personal use would disenfranchise the poor.
Recently, superior courts have upheld such bans and are siding with the local government’s power to control land use, according to Santa Barbara attorney Seymour Weisburg, who also sits on the legal committee for the National Organization for the Reformation of Marijuana Laws.
The city of Live Oak was sued for its 2011 ban on personal cultivation and won in superior court. The case was appealed to the 3rd Appellate District, which upheld the ban, and to the California Supreme Court, which refused to hear the case last year and let the lower court ruling stand.
Elsewhere, a challenge to Fresno County’s ban on personal cultivation by the American Civil Liberties Union is currently underway in the 5th Appellate District.
Other cities have opted to not ban cultivation. Such was the case with Tulare County when officials this year decided to ban dispensaries and not grows because the county could be sued, according to The Porterville Recorder.
Additionally, Weisburg pointed out that Proposition 215 doesn’t explicitly give a medical marijuana patient a right to grow, but merely exempts them from prosecution.
“To regulate land use sort of trumps what people have claimed is a state right to cultivate and use marijuana,” Weisburg said. “Some people regard it as a right, but it’s an exemption from criminal liability.”
But all of this would be moot if voters in 2016 vote to approve a proposition to approve recreational marijuana, Weisburg added.
For now, Ramey said it’s up to the courts to decide whether land use powers trump citizens’ right to grow medical marijuana.
The Santa Maria city ordinance is not final. It gets one more reading and a final vote at the Dec. 15 City Council meeting.
This article appears in Dec 10-17, 2015.
