Health

Friday, Aug 24 2012 09:00 PM

Medical marijuana groups sue county to block new restrictions

BY JAMES BURGER Californian staff writer jburger@bakersfield.com

A coalition of local medical marijuana collectives, working with local attorney Phil Ganong, has filed a lawsuit against Kern County to set aside Measure G, which puts stringent restrictions on where the operations can locate in unincorporated areas.

The suit was filed in Kern County Superior Court Monday.

Lawyers for the local cooperatives argue in their filing that "Measure G attempts to circumvent plaintiff's vested property rights without due process" and that the local law is pre-empted by state laws that legalized the medical use of marijuana and laid out rules for how groups of patients could grow and share the drug.

"The ordinance is unconstitutional on its face -- there is no interpretation of this ordinance that is compatible with state law," Ganong said.

Without action by the court to stop enforcement of Measure G, collective attorneys argue, the cooperatives will lose the rights they have under the state's Compassionate Use Act and the Medical Marijuana Program Act to form a collective, be free from self-incrimination and maintain property rights.

And they argue that the measure violates the California Environmental Quality Act, California's main environmental law, because county leaders failed to study Measure G's impact on the environment before it was submitted to voters in June.

"I disagree," said County Counsel Theresa Goldner. "CEQA does not apply. There are activities that are exempt from CEQA."

Supervisor Karen Goh said she and her board colleagues carefully weighed the limitations they put on property where the cooperatives could locate and delivered a good ordinance to the voters.

"The voters approved Measure G and I think the will of the people should be respected," she said.

"I think county counsel is pretty confident in the positions we've taken as a board," said Supervisor Ray Watson.

"We have not been served with the lawsuit, so I can't comment on the merits of it," Goldner said. "I anticipate that the county will vigorously defend any attack on Measure G."

With the lawsuit, the local group wades into a sea of other lawsuits that debate the role of cities and counties in regulating storefront medical marijuana collectives.

Ganong, who has battled Kern County for years over regulation of medical marijuana associations, said that the courts have been fairly consistent in ruling that cities and counties cannot ban the cooperatives.

Goldner said the issue of bans is far from settled.

"The cases are split on bans. There are several appellate court cases that uphold bans," she said. "There are a handful of cases that find otherwise."

But Measure G is not, technically, a ban.

It allows associations of medical marijuana patients to open a storefront operation, but only on industrial properties that are at least one mile from schools, parks, day care centers and churches. Measure G only applies to unincorporated areas of Kern County, not in incorporated cities like Bakersfield that have their own governments.

"Regulatory land use ordinances have been more difficult for the court to strike down," Ganong acknowledges.

But he argues that Kern's rule is so extremely restrictive that it is, in fact, a ban. And he argues that Kern County attorneys and supervisors intended it to be a "de facto" ban.

The group hired two independent realtors to investigate possible locations where a cooperative could locate under Measure G.

"There are probably less than five locations that fit the bill," Ganong said.

And, for various reasons, none of those locations was actually available to be leased or purchased.

Goldner said the ordinance isn't invalidated just because collectives can't find someone who wishes to do business with them.

"This is not a de facto ban," she said. "The fact that property owners and landlords do not want to lease to medical marijuana dispensaries is a legitimate and legal business decision."

Attorneys for the cooperatives are asking for a writ of mandate halting enforcement of Measure G and forcing the county to perform an initial study of the environmental impact of the ordinance. And the suit also requests a permanent injunction setting aside Measure G.

Ganong said the case will make it to a hearing within 90 days, but in the meantime cooperatives are being threatened with county nuisance abatement hearings with penalties of up to $10,000 a day for each day the cooperative remains open in violation of the ordinance.

He said the cooperatives will appeal the administrative notices from county code enforcement officers and ask for extensions of time "on the grounds that it's impossible to comply" with the ordinance.

Ganong said he isn't expecting the county to be merciful, so there will likely be appeals to the Board of Supervisors itself.

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