Court tosses challenge to Tehama medical pot ordinance

02/07/2013 12:00 AM

02/07/2013 7:46 AM

A challenge by medical marijuana patients to a Tehama County ordinance that regulates marijuana cultivation was rejected Wednesday by a Sacramento-based appellate court.

The plaintiffs contend the ordinance is impermissible under the California Constitution because it amends the Compassionate Use Act, a measure adopted by voters in 1996 that allows seriously ill individuals to use marijuana as medicine if it is recommended by a physician.

They also maintain that the ordinance – which limits the number of plants that can be grown on an individual parcel, depending on its size – conflicts with the Medical Marijuana Program, legislation passed in 2003 to clarify the scope of the Compassionate Use Act and promote its uniform application among the counties.

But a three-justice panel of the 3rd District Court of Appeal ruled the plaintiffs' premise is flawed because neither of those state statutes "grants petitioners, or anyone else for that matter, an unfettered right to cultivate marijuana for medical purposes."

The ruling upholds a similar one by Tehama Superior Court Judge Richard Scheuler.

The three justices note that the county's ordinance "does not prohibit the cultivation of medical marijuana for qualified patients. It merely regulates and restricts locations of grows and amounts that may be grown on particular parcels. Since the (Compassionate Use Act) does not create a right to cultivate medical marijuana, restrictions on such cultivation do not conflict with the CUA."

The justices cite the Medical Marijuana Program's provision that it does not "prevent a city or other local governing body from adopting or enforcing laws consistent with this article."

Tehama's ordinance puts a limit of 12 to 99 mature plants per parcel, depending on its size. It declares cultivation of any amount of marijuana within 1,000 feet of any youth-oriented facility, such as a school, to be a nuisance, and it requires anyone cultivating marijuana to register the premises with the county's Health Service Agency, disclosing the name of each owner or lessee and of each qualified patient or primary caregiver participating in the cultivation.

The 21-page opinion was authored by Associate Justice Elena J. Duarte, with the concurrences of Acting Presiding Justice M. Kathleen Butz and Associate Justice Louis Mauro.

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