Mendo County Responds to Lawsuit

County responds to lawsuit over pot

By TIFFANY REVELLE The Daily Journal
Updated: 10/02/2009 12:00:14 AM PDT

The county responded Monday to the lawsuit claiming the county's
marijuana regulation code is unconstitutional.

Attorney Edie Lerman filed the lawsuit Sept. 11 in Mendocino County
Superior Court on behalf of five medical marijuana patients. The suit
seeks to stop the county from enforcing its marijuana cultivation code,
claiming the ordinance limits cultivation in ways state law does not.

County Counsel Jeanine Nadel filed a response on behalf of the Board of
Supervisors and county Sheriff Tom Allman. In it, Nadel says the county
is within its constitutional rights to enforce the regulations and to
treat violations as nuisances.

"Concerned about increasing violent crime and other health and safety
issues related to large marijuana grows in the county's unincorporated
areas, the Mendocino County Board of Supervisors exercised its broad
constitutional police powers and enacted ... a non-criminal ordinance
governing how and where marijuana is to be cultivated in its
jurisdiction, " Nadel writes.

State law governing medical marijuana is outlined in Proposition 215,
the Compassionate Use Act of 1996, and in Senate Bill 420. Attorneys
Edie Lerman and J. David Nick jointly filed the lawsuit against the
county.

Lerman said Thursday she rescheduled the Oct. 9 hearing date to
determine whether a preliminary injunction will be granted. An amended
motion with a new hearing date of Feb. 5, 2010 was filed Wednesday, but
Lerman said it had nothing to do with the county's opposition, because
she hasn't had time to look at the documents.

Lerman said she wanted the hearing put off because she and Nick have
full schedules.

The Mendocino County Board of Supervisors' Health and Human Services
Committee is in the process of revising the county code that is the
subject of the lawsuit. One suggested change is to allow marijuana
cooperatives and collectives that get a permit from the Sheriff's Office
to grow up to 99 plants, an exception to the county's current
25-plant-per- parcel limit.

The suit calls for the court to bar the county from enforcing its
marijuana cultivation code on the basis that the regulations are
preempted by state law.

"Plaintiffs are wrong," Nadel writes. "Plaintiffs have failed to
shoulder their burden of either demonstrating success on the merits as a
matter of law or demonstrating the significant irreparable harm required
for this extraordinary relief involving a public policy issue plainly
within the scope of the county's constitutional police powers."

Nadel goes on to say the five medical marijuana patients named as
plaintiffs in the lawsuit fail to show that the county's cultivation
code prevents them from getting the marijuana their doctors prescribe.

"Captain (Kurt) Smallcomb's testimony, on the other hand, evinces the
serious public safety threats to entire neighborhoods associated with
larger marijuana grows exceeding 25 plants and supports outright denial
of the relief plaintiffs seek here and continued enforcement, " Nadel
writes.

Smallcomb, a 25-year employee of the Mendocino County Sheriff's Office,
filed his testimony separately as a declaration. In it, he cites 50
reports of violent crimes involving marijuana since 2000. They include
38 robberies and 12 murders.

Smallcomb worked for four years on the County of Mendocino Marijuana
Eradication Team, and supervises commanders in cases involving
marijuana, according to his testimony.

"In the last five or six years I have observed the number of violent
crimes - armed robbery, assault with a deadly weapon and even homicides
- increase due to enlarged marijuana grows in the county's
unincorporated area in excess of 25 plants," Smallcomb writes.

He calls marijuana gardens with 25 or more plants "problematic" because
they are easily spotted on the ground and from the air.

"We have heard from sources that possible suspects even rent planes to
fly in an effort to locate and identify marijuana gardens from the air
and later conduct marijuana rip offs'," Smallcomb writes.

He says large grows attract violent crime, including gang activity, to
neighborhoods because they are easy to find.

"In my experience, unfortunately, innocent neighbors can become victims
as armed robbers trespass onto neighboring properties for criminal
activities related to larger marijuana gardens," Smallcomb writes.

Air Pollution Control Officer Christopher Brown of the Mendocino County
Air Quality Management District filed a declaration, in which he stated
the district had received 117 complaints about odors from marijuana
gardens since 2002.

Of those, 60 complaints came from Ukiah; 30 came from Redwood Valley; 26
came from Willits and one came from Potter Valley.

In addition, Brown said, "the district has been contacted by a number of
residents who fear for their safety as a result of marijuana grows in
their neighborhood. "

Further, Nadel argues that marijuana is still illegal under federal law,
so there is "no constitutional right to possess marijuana, (and) there
is no constitutional right to cultivate or access marijuana in a manner
that deprives a local entity of either local land use or health and
safety police powers."

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

http://www.ukiahdai lyjournal. com/ci_13469138