Judge dismisses medical marijuana advocates’ suit against Nevada County
May 18, 2013
Nevada County Superior Court Judge Sean Dowling on Friday dismissed a case filed by medical marijuana advocates against the county's cultivation ordinance.
The dismissal of the suit by Americans for Safe Access-Nevada County was expected after the California Supreme Court recently ruled, in a unanimous decision, to affirm local jurisdictions' legal right to manage medical marijuana through land use and zoning. The court said neither the state's voter-approved law legalizing medical marijuana nor a companion measure adopted by the Legislature prevent local governments from using land use and zoning powers to prohibit storefront dispensaries. The ruling came in a legal challenge to a ban enacted by the city of Riverside in 2010.
The Inland Empire decision by the Supreme Court "cut this lawsuit off at the knees," Dowling said.
ASA-Nevada County had filed suit against the county after the cultivation ordinance was passed by the county's board of supervisors in May 2012. The ordinance regulates 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.
The group's attorney, Jeff Lake, argued in court Friday that there were some privacy issues that merited further consideration.
He pointed out that a requirement that growers post a letter of consent from landlords, as well as their scrips, in a public place would allow access to their private information by members of the public, not just law enforcement.
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Lake asserted that the medical marijuana patients have the right to determine how they meet their medical needs on their own land, without government interference.
Assistant County Counsel Marcos Kropf told Dowling the ordinance does not infringe on the rights of qualified patients and argued that the recent Supreme Court decision clearly stated there was no right to use medical marijuana, and that state laws provide very limited immunity to certain criminal statutes.
Dowling said that his reading of the Inland Empire decision was that the Supreme Court was "taking a step back" from the way it previously addressed marijuana cases, to simply state that legal issues will have to be fixed through the ballot initiative process or by the Legislature.
"As far as privacy issues are concerned, I understand your argument," Dowling told Lake.
But in the end, he said, the county ordinance is about zoning.
"It's a zoning issue … and privacy (rights) give way," Dowling concluded.
To contact Staff Writer Liz Kellar, e-mail email@example.com or call 530-477-4229.
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