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Medical marijuana group to get $14K in attorney fees

Liz Kellar and Matthew Renda
Staff Writers

A Nevada County judge has ruled that the county must pay $14,400 in attorney fees to Americans for Safe Access-Nevada County, in partial repayment for a lawsuit the nonprofit group filed against the county’s medical marijuana ordinance.

Attorney Jeffrey Lake had filed the suit in May 2012 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. Dowling subsequently refused to grant an injunction against the entire ordinance but agreed the county could not enforce a de-facto ban on collectives.



He 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.

Dowling again issued a mixed ruling, allowing the complaint to move forward on the contention the ordinance unlawfully prohibited 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.




The case was dismissed in June of this year, after the California Supreme Court decided in the City of Riverside v. The Inland Empire Patients Health & Wellness Collective that local jurisdictions have the right to regulate both cultivation and distribution via local land-use designations such as zoning ordinances.

Lake subsequently filed a motion requesting reimbursement for attorney fees, which Dowling partially granted.

“We’re just happy the judge ruled in our favor,” Smith said Monday.

In the ruling, Dowling noted that the medical marijuana advocates’ suit raised numerous issues and that they prevailed on one single issue — that of collective grows.

“One of the expressed intents of the ordinance was to permit collective growing as provided by state law,” Dowling wrote. “The specific provisions of the ordinance, in effect, denied this activity and deemed it a nuisance, creating an inescapable inconsistency within the ordinance.”

Dowling noted that although county counsel claimed collective growing was not being prohibited, “a plain reading of the ordinance said otherwise.” He added that following his ruling, the county amended the ordinance to clarify its intent and operational scope.

According to Dowling, attorney fees are recoverable if the action resulted in the enforcement of an important right affecting the public interest — which he said was clearly the case here in protecting collective cultivation rights.

Dowling found that the amount of attorney fees needed to be pro-rated, since the collective growing issue was only one part of the lawsuit and determined a reasonable award was $14,400.

“Resolving the collective cultivation issue conferred a significant benefit to the public,” Dowling concluded. “As to collective growers, it permitted them to conduct their activities without the threat of nuisance enforcement. As to the public … the clarification avoided the potential cost of unnecessary prosecutions and abatement actions.”

Nevada County Counsel Alison Barratt-Green said she was surprised at the ruling but deemed it “the cost of doing business.”

“The case is done and they lost, which is why it’s difficult to understand,” she said.

The county’s lead attorney did say her office was mulling an appeal of the decision.

“We’re evaluating the options,” Barratt-Green said.

Dowling awarded less money than ASA originally asked for, she noted.

“It wasn’t entirely clear, but by our rough calculations, they asked for well over $100,000 in attorney fees and travel costs,” Barratt-Green said.

The impact to the county budget will not be significant, Barratt-Green said, saying the county maintains a liability reserve fund and other accounts used to cover unexpected expenses.

Smith said Monday that her organization has crossed the 75 percent threshold of gaining enough signatures to qualify for a special election to overturn the medical marijuana cultivation ordinance, adding that the deadline is Dec. 30.

Smith said she wants significant revisions to the current cultivation ordinance, which she said operates as a de facto ban on small medical marijuana growers.

“Although Judge Dowling ruled that ASA-NC prevailed on the question of collectives, and the county has agreed in theory that we have a right to collective cultivation, they still have not allowed one extra inch of space to accommodate collective members,” Smith added. “Our initiative addresses that problem by allowing collective grows on larger Ag parcels and capping the number of members allowed on 30 acres or more to 10 patients.”

ASA-NC will meet at 6 p.m. tonight at the Nevada County Contractors Association, 149 Crown Point Circle. For information, go online at http://asa-nc.com.

To contact City Editor Liz Kellar, email lkellar@theunion.com or call 530-477-4229. To contact Staff Writer Matthew Renda, email mrenda@theunion.com or call 530-477-4239.


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