Local News

Tuesday, Aug 16 2011 04:11 PM

Medical marijuana advocates file lawsuit challenging county ordinance

BY COURTENAY EDELHART, Californian staff writer cedelhart@bakersfield.com

Two local men and their medical marijuana cooperatives have filed a lawsuit challenging the Kern County Board of Supervisors' vote limiting the growth of medical marijuana in unincorporated Kern County.

The county passed an emergency ordinance last week to ban the cultivation of more than 12 plants on one legal parcel of land, even by those who have a recommendation from a doctor to use marijuana for medical treatment. That ordinance went into effect immediately.

The lawsuit filed Tuesday in Kern County Superior Court seeks a temporary restraining order, preliminary injunction and permanent injunction against implementation of the law.

The plaintiffs are Jeffery G. Jarvis and Russell G. Robertson, referred to as "qualified patients" in the lawsuit, as well as Kern County Medicinal Collective Inc. and Green Coast Cooperative Inc.

The ordinance is an "improper amendment" to the state's Health and Safety Code that preempts it, according to the lawsuit. The law also is "unconstitutionally vague" and the 12-plant limit is "arbitrary," the complaint alleges.

"This whole issue is about patient rights and whether the county can dictate what's the right medical treatment and what isn't," said Jarvis, 60, who volunteers at Kern County Medicinal and said he uses marijuana to treat pain related to multiple back surgeries and a shoulder he had replaced. "Since Prop. 215, that is a decision between a doctor and a patient, not the county. That's already been decided."

Passed in 1996, Proposition 215 gave sick Californians the right to obtain and use marijuana for medical purposes with a physician recommendation.

The 12-plant limit would be insufficient for many, including those, like him, who use edible cannabis, Jarvis said. That's the the preferred method for people who either don't want to smoke or can't smoke because they suffer from pulmonary ailments, Jarvis said.

County supervisors said Tuesday that they hadn't seen the lawsuit so they didn't want to get into specifics, but generally they were confident the county would prevail.

"Its no surprise to me," Supervisor Mike Maggard said of the filing. "I still feel very confident about our position."

Supervisor Zack Scrivner said the county has nothing to fear.

"Our county counsel gave us ample reason to believe that our action was within the law," he said.

Philip Ganong, attorney for the plaintiffs, said the restraining order is necessary because it takes 180 days to cultivate a cannabis plant to maturity, so if law enforcement destroys a patient's nursery, the patient cannot legally replace the plants right away; plus, the season has passed to plant outdoors.

The plaintiffs are seeking class action status because the affected parties could exceed 20,000 patients and 25 cooperative associations, according to the complaint.

The county counsel's office said it had not received a copy of the lawsuit yet and could not immediately comment.

Kern County Sheriff Donny Youngblood said he doesn't comment on pending litigation.

Medicinal marijuana advocates have promised to go after both the cultivation ordinance and a separate ordinance also passed last week that would outlaw storefront cooperatives. That law is to go into effect in 30 days. In the meantime, a referendum drive to block the ban is underway.

The Kern County Elections Division confirmed Monday that opponents of the ban on medical marijuana collectives have created a political action committee -- the Kern Citizens for Patient Rights -- to support an election to overturn it.

Opponents of the ban have until 5 p.m. Sept. 8 to collect 17,350 signatures from registered Kern County voters and submit them to the Clerk of the Board of Supervisors.

If they can get enough signatures, supervisors will be forced to suspend the ordinance and call an election in which voters would decide whether the law should be enacted.

-- Californian staff writer James Burger contributed to this report.

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