Mendo County Medical Marijuana Growers Sue Sheriff

County, sheriff, sued by medical marijuana growers

By TIFFANY REVELLE The Daily Journal
Ukiah Daily Journal

Updated: 09/12/2009 12:00:24 AM PDT

Say 25-plant parcel limit unconstitutional

Five medical marijuana patients are suing the Mendocino County Board of
Supervisors and Sheriff Tom Allman.

The suit, filed Friday morning in the Mendocino County Superior Court,
claims the county's marijuana cultivation ordinance is unconstitutional
because it limits cultivation in ways state law, outlined in Proposition
215, the Compassionate Use Act of 1996, and in Senate Bill 420, does
not.

The lawsuit seeks an injunction to stop the county from enforcing its
marijuana cultivation ordinance, codified as Mendocino County Code 9.31.
It also seeks attorney's fees on behalf of five marijuana patients who
say 9.31 violates their rights under state law.

SB 420 allows a patient to have six mature plants or 12 immature plants,
or the amount a doctor recommends. The marijuana cultivation ordinance
says no more than 25 plants can be grown on a parcel, or it's considered
a nuisance.

"I believe strongly that this 9.31 ... is really a wish list of how the
Board of Supervisors would like the law to work, but that's simply not
how the law really works. The law, and the state, sent a clear message
through the legislature that if counties and board(s) of supervisors
seek to exceed those limits, they can do that. But they simply cannot
decide that they want to limit those below that threshold," attorney
Edie Lerman said.

She called the county's 25-plant-per- parcel limit unlawful, arbitrary
and capricious, and said even the 99-plant exception being considered
for marijuana collectives and cooperatives is unlawful.

Lerman and attorney J. David Nick jointly filed the suit.

A hearing date to determine whether a preliminary injunction will be
granted was set for Oct. 9 at 9:30 a.m. in the Ukiah courthouse. If
granted, the injunction would be in place until a determination can be
made about whether a permanent injunction would be granted.

Lerman said the "most egregious" problem with the county's marijuana
cultivation ordinance is that it says marijuana can't be grown within
1,000 feet of a school or a school bus stop.

"That's not even for the grow, specifically, it's just where that
property line ends. So someone that has 100 acres, and that property
line ends near a school or near a school bus stop, even if they were
going to grow on the other end of their parcel, they wouldn't be allowed
to do that," Lerman said.

Plaintiff Jim Hill said the location of school bus stops change without
notice, which he said creates a problem for growers.

Lerman said any county ordinance can't prevent medical marijuana
patients from doing what SB 420 allows them to do. She suggested the
county craft its ordinance, which is currently under revision, to ensure
safe access for patients.

"I think that the county needs to wake up, and they need to realize that
the way to revise it in such a way would be to make it so that your
objective is to enhance patient access to their medicine," Lerman said.

Sheriff Allman said at 1 p.m. on Friday that he hadn't yet seen the
lawsuit and could not comment on it until he had looked at it and had
spoken to County Counsel Jeanine Nadel about it.

Nadel said at 1:30 p.m. on Friday that she hadn't seen the lawsuit yet,
either, and added that it isn't her practice to comment on litigation
matters.

Tiffany Revelle can be reached at udjtr@pacific. net, or at 468-3523.

http://www.ukiahdai lyjournal. com/ci_13322682

------------ --------- --------- ------

Here is the notice that Dale Gieringer from Cal NORML sent out yesterday
in advance of the suit's filing. It lists the names of all 5 plaintiffs
in the case.

Peace

brett

FOR IMMEDIATE RELEASE (this is not "MMMAB's lawsuit" - it is MMMAB's
announcement of an action we support)

------------ --------- --------- --------- -----
MEDICAL MARIJUANA CIVIL LAWSUIT WILL BE FILED IN SUPERIOR COURT AGAINST
MENDOCINO COUNTY SUPERVISORS AND SHERIFF FOR VIOLATIONS OF STATUTORY AND
CONSTITUTIONAL LAW.

PRESS CONFERENCE WITH LAWYERS AND PLAINTIFFS WILL TAKE PLACE FRI SEPT
11, 10:30 AM, AT UKIAH COURTHOUSE.

A civil lawsuit on behalf of medical marijuana patients challenging MCC
9.31, the Medical Marijuana Cultivation Ordinance, and its enforcement
mechanism, MCC 8.75, will be filed in Superior Court Friday Sept 11,
followed by a press conference on the steps of the Ukiah Courthouse at
10:30 AM. Named defendants are the Mendocino County Board of
Supervisors and Sheriff Tom Allman.

The lawsuit, represented by Attorneys Edie Lerman and J. David Nick, is
being filed on behalf of five medical marijuana patients--Jim Hill,
Trelanie Hill, Andrea Nagy, Marta Nagy, and Sally Pringle. It calls for
declaratory relief and a preliminary and permanent injunction to stop
the enforcement of the ordinance based on it being unconstitutional on
its face and as applied.

Attorney Edie Lerman stated, "This case is desperately needed by the
medical cannabis community to support the constitutional and civil
rights being trampled on by 9.31."

Attorney J. David Nick said, "This litigation must be brought because
these ordinances are preempted by state law. The County ordinance is a
wish list for what they believe State legislation should have looked
like."

Known as 'the 25 plants per parcel law', in effect since February 2008,
the ordinance is unconstitutional for the following reasons:

1) The cultivation of more that 25 marijuana plants on any legal parcel
either inside or outside, regardless of location or size of the parcel,
is deemed a Public Nuisance. This contradicts state law, which places
no limits on the number of plants a qualified patient or primary
caregiver may cultivate, so long as the marijuana is reasonably related
to the patient's medical needs.

2) The ordinance attempts to amend the 1996 Compassionate Use Act, in
violation of the California Constitution which requires voter approval
for changes in a voter initiative.

3) The ordinance attempts to set arbitrary limits on the number of
plants an association of qualified patients organized collectively or
cooperatively can maintain on any one single parcel of land.

4) Mendocino County Sheriff Tom Allman and/or his agents under the
policies and practices of the County Sheriff's Office have seized and
destroyed property in violation of state law.

5) The ordinance conflicts with California Civil Code 3482 which
proclaims that acts done under the authority of State law cannot be
deemed a nuisance.

For more information, call the Law Offices of Edie Lerman and J. David
Nick at 707-937-1711 and 468-8300.

--
Dale Gieringer - dale@canorml. org
California NORML, 2215-R Market St. #278, San Francisco CA 94114 -(415)
563- 5858 - www.canorml. org