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ACLU, DPA Sue California City Over Restrictive Homegrow Rules

June 6, 2017
(pastorscott/iStock)
The American Civil Liberties Union and Drug Policy Alliance are suing a Southern California city over rules the groups say make it “virtually impossible” for residents to grow cannabis at home.

Filed Monday in San Bernardino County Superior Court, the lawsuit is one of the first major challenges to the growing trend of local governments passing tight restrictions on home cultivation.

“City ordinances that are plainly intended to circumvent what state law now allows invite legal challenges such as this one.”
Joy Haviland, Drug Policy Alliance staff attorney

While Proposition 64 grants all California adults the right to grow cannabis at home, it also gives cities and counties the ability to “reasonably regulate” that right. What that means, however, is open to interpretation and will likely be hammered out in court.

Attorneys for DPA and the ACLU claim that an ordinance adopted by city of Fontana crosses the line by putting up obstacles that violate residents’ constitutional rights and prohibit some residents from growing at all. The groups are asking the court to bar Fontana from enforcing the rules.

“Local governments cannot undermine or undo what their voters and what the voters of California have embraced,” DPA staff attorney Joy Haviland wrote in a post about the suit. “City ordinances that are plainly intended to circumvent what state law now allows invite legal challenges such as this one.”

Related

How to grow marijuana indoors: A beginner’s guide

Fontana isn’t alone in trying to restrict home cultivation. Just east of Los Angeles, in Montebello, residents who want to grow cannabis can do so only if they don’t owe any taxes and are willing to submit to periodic home inspections by the city. In Indian Wells, near Palm Springs, residents must pay for a background check to prove they haven’t been convicted of a felony drug violation in the preceding five years. Even then, the city has rules on which rooms of resident’s home can and can’t be used for cultivation.

Among the provisions in Fontana’s measure, Ordinance 1758, a would-be home grower must register with the city, undergo a criminal background check, open their home to city officials, and pay a permit fee of $411.

“Even worse,” the ACLU and DPA lawsuit says, “Ordinance 1758 requires applicants to make self-incriminating statements in their permit applications, statements that admit to a violation of federal law and that federal authorities could easily obtain.”

Related

Justice Department Turns Attention to Cannabis Enforcement

Some residents with criminal records are barred from growing under any circumstances, which has frustrated criminal justice reformers.

“The ACLU of California supported Prop. 64, in large part because of our longstanding policy that possessing or cultivating marijuana for personal use should not be a crime,” Jess Farris, the ACLU of Southern California’s director of criminal justice, said in a statement. “The Fontana ordinance—and other similar ordinances around the state—would criminalize the very conduct Prop. 64 legalized, particularly for people who are ineligible to obtain a permit because of their criminal convictions or their lack of funds to obtain a permit or to dedicate an entire room in their home to cultivation.”

Councilmembers directed staff to revisit the ordinance “to look for opportunities to provide additional restrictions.”

A provision of Prop. 64 notes that “no city, county, or city and county may completely prohibit persons engaging” in home cultivation of up to six cannabis plants. But critics say that’s exactly what some local governments are trying to do.

“This is overreach,” Thomas Abouriali, a Fontana resident opposed to the ordinance, told the Orange County Register. “They don’t like Prop. 64, so they definitely want to restrict this as much as possible.”

The City Council record suggests Abouriali has a point. When councilmembers introduced the ordinance at a Jan. 27 meeting, city records show, they directed staff to revisit the issue “to look for opportunities to provide additional restrictions in the ordinance.”

Related

Why Are Legal States Setting More Limits on Cannabis?

The City Council formally adopted the rules on Feb. 14.

Reached late Tuesday via a spokesperson, Fontana City Attorney Jeffrey Ballinger told Leafly he was unable to respond to the ACLU–DPA lawsuit.

“Thank you so much for the opportunity to discuss this with you,” he said in a statement provided by his law firm, Best Best & Krieger. “The city has not yet been served with the complaint and so we can’t comment until the City Council and City Attorney’s Office have had a chance to review it.”

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Ben Adlin

Ben Adlin is a senior editor at Leafly who specializes in politics and the law. Follow him on Twitter: @badlin

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  • massman

    Another reason to vote out prohibitionists.

  • Chuck14od

    I find this situation with cities passing more restrictive cannabis laws absolutely the same as NYC, Chicago and many others having total bans on firearm ownership. Funny how the ACLU picks and chooses what violation of ‘rights’ they are willing to defend and totally ignores the violation of others. There once was a time when they stood for all ‘rights’ but that was ancient history

    • lovingc

      The prohibition of fire arms is not a city regulation it is federal. No guns for cannabis users.

      • Chuck14od

        There’s federal laws then there’s state laws. So what is the point you are trying to make? Any state that has any degree of cannabis use allowed is in violation of federal law.
        And my point was with the ACLU and how they pick which violation of ‘laws’ to defend and which ones they choose to ignore. And since you didn’t understand this it had nothing to do with cannabis users and firearms ownership

      • jim heffner

        Four guys walking down the street find a bottle of booze, they drink it, get drunk, and start a fight. Four guys walking down the street find a joint, they smoke it, get stoned, and start a band.
        Ask any LEO if they’d rather deal with a domestic disturbance involving alcohol use or Cannabis use. Now what is your logic for denying the more non violent Cannabis users their rights? I’ve been upset about the tyranny of the majority for quite a few years…..Oh, that’s right the demographics have changed and the pro re-legalize folk are in the majority now. Get used to it. While you were imposing your will on us as a significant minority we were circumventing your draconian laws. What obstructionist nitpicking regulations are accomplishing is a further disrespect for our legal system and a strengthening of the black and gray markets.

        • Chuck14od

          You are absolutely correct in that there is No Logic in this prohibition except that it threatens the profits of the corporate masters and they share the monies stolen from us with their enforcers of corporate law, the police.

  • Two Bears

    I disagree with ACLU far more often than i agree with them.

    I have Crohns disease (The nearest thing to HELL on earth)

    Everything doctors prescribed fell into three categories.

    Didnt work.

    Made me feel so bad i wished i was dead.

    I simply couldn’t afford it ($1,000 for each pill! I’m not stretching the truth at all) .

    Without MMJ i had 2-3 flares virtually every week.

    With MMJ i have only had three flares in the last year amd my MMJ expense has only been $550-600 for the shatter i use, and the cost of my MMJ card.

    A friend of mine also has Crohns in a state that doesnt allow MMJ. He spends $2,400 a month for medicine that doesn’t work as well as MMJ does for me.

    Lately started micro dosing and have found that i only need 13-16.5 mg of cannabinoids a day to keep my gut health steady instead of bouncing between two extremes.

    I make a super tincture. 1 gram shatter in a 15 ml dropper bottle. Fill tge bottle with 190 proof grain alcohol (Usually Everclear).

    Each drop of this super tincture has 2.8-3 mg cannabinoids (depending on purity of the shatter).

    So measuring the correct dose is a piece of cake.

    Put the number of drops in hot coffee,tea, or soup. Allow the hot liquid to sit a while to evaporate the alcoho, and decarboxolate the cannabinoids.

    • Chuck14od

      Good for you and congratulations on finding such a healthy medicine that actually works. I’ve had a miraculous reduction in suicidal insanity driven pain and decades of high end narcotics day and night by discovering the amazing healing properties of this plant.
      I make my own tinctures with 190 proof also and the last time I had a lab test it it is 16.5% THC and 5.5% CBD. Any government that bans this medicine from its citizens is so corrupt and obviously Owned by the corporations that it truly amazes me how anyone can trust it. Any free person does what they must irregardless ‘of the law’.

      • Two Bears

        If you dissolved 1 gram of shatter that is 85-92% thc in 15 ml 190 proof alcohol the THC would be higher

        • Chuck14od

          I’m still experimenting and was originally using real bud but that’s too expensive so I use bakers mix. I now take a full dropper or two at a time but it’s fairly inexpensive to make now. What you’re talking about is also called ‘shake’ correct?

    • Kenny Morrison

      You are likely benefitting from THCA since odds are hot tea or soup is not thoroughly decarbing your shatter tincture, unless it’s boiling or quite near it.

      Congrats on finding an inexpensive solution that works for you!

      • Two Bears

        Actually its the CBD and other cannabinoids that helps me.

        When i make tea the water IS boiling.

        I put my tincture in the empty cup.pour tge boiling water in the cup. Add the tea ball to the cup and walk away 3-4 minutes for tea to steep. Remove tea ball and drink a cup of tea with my medicine

        • Kenny Morrison

          Perfect. Where are you regularly finding shatter high in CBD and other non THC Cannabinoids?

          Your tincture must have around 50mg cannabinoids per mL. Strong stuff.

          • Two Bears

            When i go to the dispensaries i ask them to show me the high CBD Indica’s then i choose several different straibs. Most of mine have moderate THC levels.

            Here are some of my favorite strains

            God Bud
            Dark Star
            Northern Lights
            Blue Dream
            Tangistan
            Jilly bean
            Purple Mayhem.

            Yes my tinctures are VERY strong so i need drops instead of a tablespoon or a shot.

            The Jilly Bean analysis was 94% cannabinoids with 8% CBD.

            I micro dose 13-16.5 mg and Jilly Bean has a high THC so i had to cut the dose down to 9-10 mg.

            First time i used the Jilly Bean tincture i used 16.5 mg as i did with Northern Lights, or God Bud, and Jilly Bean TOOK ME FOR A RIDE!

          • Two Bears

            Actually its 54.6 mg/ml on most but the Jilly Bean was 62.666 mg/ml

            As i said you make it much stronger the hash oil starts falling out of suspension just from evaporation of the alcohol.