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November 10, 2012
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Pot abatements proceed in face of Nevada County and federal legal challenges


Several legal challenges against Nevada County’s medical marijuana cultivation ordinance currently are under way in both county and federal court.

But that’s of little consolation to the growers who have been served with abatement notices from the Nevada County Sheriff’s marijuana ordinance enforcement team.

As of Nov. 1, the team — which has been responding to marijuana cultivation nuisance complaints since the controversial ordinance was passed by the county Board of Supervisors May 8 — had issued 85 notices to abate. And far from wrapping it up, Sheriff Keith Royal has decided to extend the enforcement team’s activities “indefinitely,” said Sheriff’s Lt. Steve Tripp.

“We were going to shut it down at the end of the month,” Tripp said. “But they will keep the team as long as there’s work for them to do.”

Tripp indicated that future enforcement actions likely will concentrate on indoor grows. Thirty growers served with abatement notices had filed appeals with the county as of Friday; of those, only one appeal had been granted as of Nov. 1. More appeal hearings are scheduled for Nov. 14 and Nov. 16.

Federal case pending

Nevada City attorney Stephen Munkelt, who has been handling many of the appeals, filed a motion Oct. 31 to halt the abatement process, but that was denied in Nevada County Superior Court.

Munkelt had filed a writ that asked the court to review whether there was an abuse of discretion or a violation of the law by the county in enforcing the ordinance, as well as the motion for the court to grant a stay of the abatement process until a ruling was made.

Nevada County’s counsel, however, requested that the matter be transferred to federal court because it was an action founded on claims arising under the U.S. Constitution. Because of that, the local court found it had no authority to proceed.

“The federal court has jurisdiction over cases that have to do with federal law,” explained County Counsel Alison Barratt-Green. “So, for example, if someone alleges we violated the U.S. Constitution, that’s a federal question.”

Barratt-Green said that the county has a set period of time to respond to Munkelt’s petition, which challenges the legality and constitutionality of the cultivation ordinance.

Munkelt filed the petition on behalf of a number of seven patients growing on the same property, who were served a notice to abate their garden Sept. 11. According to Munkelt, the hearing officer upheld the notice based on the number of plants on the parcel, the lack of fencing and the lack of posted medical recommendations.

Munkelt argued their cultivation complied with state law and did not constitute a public nuisance subject to abatement.

The collective had 40 plants on a hilltop not visible to the public and had legitimate medical needs, Munkelt wrote. He added that they spent approximately $30,000 to build a greenhouse and prepare the garden and that it would cost them as much as $100,000 to replace their medical marijuana supply.

Munkelt has been issuing similar appeals for each of the clients he has been representing throughout the appeal process, arguing a number of legal points.

He argued the ordinance violates state law by imposing regulations that are explicitly in conflict with the state.

California law authorizes the cultivation of medical marijuana and “immunizes” that activity from criminal sanction and nuisance abatement actions, he wrote.

He has also argued the ordinance deprives property owners of an economic benefit and a productive use of their property, and this is an unlawful taking within the meaning of the Fifth Amendment of the U.S. Constitution, because Nevada County has not stated any legitimate interest for “its myriad of cultivation limits.”

The ordinance’s stated purpose is to regulate legal grows from a nuisance standpoint, limiting the size of grows depending on zoning, setbacks and plot size and imposing other restrictions, such as security fencing.

But according to Munkelt, the county has demonstrated no rational basis for the cultivation restrictions, which in some cases conflict with each other.

The requirement that cultivators must post their recommendations violate their constitutional right against self-incrimination, since they then would be broadcasting a violation of federal drug laws, Munkelt wrote.

Posting recommendations also would violate their medical privacy rights.

“The schizophrenic set of ‘purposes’ suggests the true motivation of the ordinance is to halt all cultivation of marijuana,” he wrote.

County suit set for trial in May

Some of the same arguments crop up in a suit filed by Americans for Safe Access-Nevada County May 21 that is still wending its way through Nevada County Superior Court, and is set to go to trial May 14, 2013.

Attorney Jeffrey Lake had filed the suit on behalf of ASA-NC, Grassroots Solutions and Patricia Smith, who is the founder of the nonprofit patient advocacy group and the ASA chapter.

Lake initially filed a request for a temporary restraining order against the ordinance, which was denied by Nevada County Superior Court Judge Sean Dowling in June. Dowling subsequently refused to grant an injunction against the entire ordinance but agreed the county cannot enforce a de-facto ban on collectives.

Lake subsequently filed an amended complaint for injunctive and declaratory relief, claiming that the ordinance contains unlawful structural restrictions and prohibits collective cultivation and violates patients’ right to privacy.

Lake also argued the ordinance violates the due process clause, the equal protection clause and the prohibition against unlawful searches and seizures. The county, however, filed a demurrer arguing that the amended complaint simply raised many of the same legal issues already decided by the court.

Dowling again issued a mixed ruling, allowing some causes of action and throwing out others. Specifically, he allowed the complaint to move forward on the contention the ordinance unlawfully prohibits collectives.

Dowling also allowed a right-to-privacy argument and found that ASA-NC had “adequately alleged an actual controversy” as to whether the county has violated state law.

What that means is that the suit has been narrowed down as to its scope but will continue to move forward, said Lake’s co-counsel, Nathan Shaman.

“It will proceed with (Dowling’s) ruling in place,” Shaman said, “We might appeal down the road, but it is premature to do that at this point.”

The parties are set to return to court April 22 for a settlement conference.

To contact Staff Writer Liz Kellar, email lkellar@theunion.com or call (530) 477-4229.

“The schizophrenic set of ‘purposes’ suggests the true motivation of the ordinance is to halt all cultivation of marijuana.”

— Attorney Stephen Munkelt


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The Union Updated Nov 16, 2012 12:06PM Published Nov 16, 2012 07:15AM Copyright 2012 The Union. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.