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Friday, Feb 14 2014 03:01 PM

Judge throws out medical marijuana restrictions

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    A pair of buds on a Wild Thailand marijuana plant are shown in this file photo.

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BY JAMES BURGER Californian staff writer jburger@bakersfield.com

Kern County's battle with medical marijuana collectives and cooperatives took a wild turn Friday.

Superior Court Judge Kenneth Twisselman invalidated Measure G -- the 2012 voter-approved ordinance that limits where storefront marijuana operations in unincorporated Kern County can locate.

But county lawyers said that actually clears the way for Kern to eliminate all storefront marijuana shops in its jurisdiction, setting up what will likely be another round of conflict between the county and collectives over how medical marijuana patients obtain the drug.

Technically speaking, Kern County lost its legal battle to preserve Measure G on environmental grounds Friday.

Measure G states that in unincorporated Kern, medical marijuana collectives and cooperatives can only operate on industrial land and must be at least a mile from schools, day care centers, churches, public parks, and other collectives and cooperatives. It does not apply to incorporated cities in Kern; Bakersfield, for example, has its own restrictions.

In a case brought by a collective, Twisselman ruled that county officials failed to properly consider the environmental impacts of Measure G when Kern County supervisors sent the ordinance to voters in 2012.

He said the California Environmental Quality Act compelled the county to consider whether its actions might cause more pollution by forcing patients to drive further to get their medicine and by moving loitering, littering and other nuisances from one location to another.

Attorney Mike Hogan argued passionately on behalf of Kern County that Measure G opponents never raised environmental concerns when the county was pondering the creation of the ordinance and that the ordinance -- by its very existence -- removed environmental impacts.

But Twisselman rejected his arguments, saying that, in the limited context of this case, the county was obligated to seek out and investigate environmental impacts even if they were not raised by opponents.

And he said the county simply could not prove it had done that.

But county attorneys, in the hallway after Twisselman ordered the ordinance invalidated, said their loss was a practical blow to medical marijuana collectives and cooperatives.

"Theres no winner in this action," said Deputy Kern County Counsel Charles Collins.

A BAN, IN FACT

Collins said when Twisselman's order takes effect, all medical marijuana collectives and cooperatives become immediately illegal in unincorporated areas.

It's true, he said, that shops used to be permitted there and at least 20 were in operation. But when the Board of Supervisors voted to send Measure G to the voters two years ago, they also voted to eliminate all past ordinances that allowed collectives to set up storefront shops, Collins said.

He doesn't like the word "ban" because that implies the county has taken active action to outlaw collectives and cooperatives. But, he said, "the county intends to enforce its zoning ordinance."

Deputy County Counsel Devin Brown, who wrote Measure G, said there currently are five collectives operating in county areas -- most in violation of Measure G.

Long Beach attorney Jamie Hall represents T.C.E.F. Inc., the cooperative that sued to block Measure G. He said he's heard the county say collectives would become outlaws if he won, but has yet to see evidence supporting it.

But Hall said Friday's win throws into question all previous enforcement actions the county has taken to close down collectives and cooperatives. If Measure G disappears, so does the enforcement process the county used against the collectives, he said.

Collins acknowledged the county will need to address Hall's question.

"We're looking at it," he said.

NEXT STEPS

Hall said the legal ball is now in the county's court.

Either the county can go back to the drawing board and do a full environmental analysis of Measure G before returning it to voters or appeal its loss to a higher court.

Collins said the county will have to consider its options.

But has the county, in a weird way, worked its way around to a result that it preferred more than Measure G?

Supervisors only pushed Measure G to the voters after an attempt to ban all collectives and cooperatives was blocked by a signature-gathering drive.

Forced to ask voters to ban dispensaries -- or offer up Measure G -- supervisors voted to pursue the latter. Now all collectives and cooperatives are illegal in the county, Kern's lawyers say.

Is the county happy about that?

Deputy County Counsel Brown bristled at the thought.

Kern County fought hard, he said, waving his arm toward Twisselman's courtroom, to defend Measure G.

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