Wahl of defiance

A Chico lawyer and medical-marijuana advocate contends the new medi-pot ordinance under consideration by the Butte County Board of Supervisors is illegal and a slap in the face to voters who recently rejected a less-restrictive ordinance.

On July 31, the board, at the suggestion of Supervisor Larry Wahl, voted 3-2 to direct county staff to draft an ordinance similar to that adopted by Kings County last year. That ordinance states: “Cultivation of medical marijuana is prohibited in all zones of the county, except for cultivation for personal medicinal use by a qualified patient within a secured, locked and fully enclosed structure on their personal residence.”

“They said they wanted to do this, but hopefully they won’t follow through with it, because it’s undemocratic and would be very disrespectful to their constituents,” said Robert Mackenzie, a land-use attorney who represents the group Citizens for Compassionate Use.

“They got a pretty clear mandate from the voters,” he continued, referring to the defeat of Measure A, a ballot initiative on the county’s plan to limit marijuana cultivation based on property size, with no plants allowed on parcels of a half-acre or smaller. That plan was rejected by 55 percent of voters. “It seems pretty disrespectful to say, ‘Well, now we’re going to do something even more draconian.’”

Mackenzie said Measure A’s defeat strengthens future legal cases if the county is sued over a new ordinance. He made it clear he wasn’t threatening to sue the county, but added, “It’s likely someone will.

“They’re doing something inside of a year from the certification of the election results, so if there is litigation it seems like the presumption would go to the voters,” Mackenzie said. “Legislative bodies get a wide degree of deference from courts, normally, but in this situation … it’s unlikely a court would extend that same degree of deference to the supervisors.”

Measure A was added to the June 5 primary as a result of a referendum petition—a signature-gathering campaign to get it in the ballot spearheaded by Citizens for Compassionate Use. Mackenzie said that another referendum is an option, but that litigation seems a more likely way for opponents to shut down the new ordinance.

“[The proposed ordinance] is also irresponsible, fiscally speaking, because they’re inviting themselves to be sued,” Mackenzie said. “When Mr. Wahl decided he wanted to try this ordinance out, I don’t know that he had a legal opinion from county counsel on it. If they do get a legal opinion, I think they might realize how bad the whole deal is and just decide to scotch this whole thing.

“We’re in a wait-and-see mode, because I want to give them the chance to do the right thing. If they do, no harm, no foul.”

Mackenzie said there are legal problems with the Kings County template, including the fact that that it bans collectives and cooperatives and doesn’t make provisions for caregivers who grow for those who are disabled or otherwise unable to cultivate their own. He said this is in direct defiance of state law, specifically the Medical Marijuana Program Act, also known as Senate Bill 420, a 2003 measure that implemented 1996’s Proposition 215, which originally legalized medical marijuana in California.

Supervisor Wahl disagrees about the proposed ordinance’s legality, and said he has spoken with county counsel, as well as people in Kings County who vouch for the ordinance’s effectiveness.

“Our major interest in mind was finding another county that had successfully implemented that prohibition [on outdoor cultivation].

“We’ve been without an ordinance for a long time,” he said about the board’s action so soon after Measure A’s defeat. “I think it’s appropriate we have an ordinance that protects the safety and welfare and quiet enjoyment of residents throughout Butte County.”

Wahl also rejected Mackenzie’s suggestion that the supervisors’ actions were disrespectful to voters (“I don’t see it that way at all,” he said) and overly restrictive.

“For some folks it probably will be; for others I don’t think it is,” he said.

Mackenzie’s predictions for a possible legal battle have partly played out recently in nearby Nevada County. On July 27, Nevada County Superior Court Judge Sean Dowling ruled that the county couldn’t enforce the prohibition of collectives.

The ruling resulted from an injunction filed by Americans for Safe Access after that county’s board of supervisors voted 4-1 May 8 to adopt two ordinances regulating indoor and outdoor cultivation.

“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,” Dowling’s ruling read in part.

“The Court also acknowledges that California recognizes marijuana as an effective treatment for individuals like the plaintiffs … By democratic process, the cultivation, possession and use of medical marijuana has been sanctioned, supported and immunized from state criminal prosecution.”