Colusa City Council defers action on medical marijuana; members want to hear from the public
The Colusa City Council heard three options for dealing with the outdoor cultivation of medical marijuana at a meeting on Feb. 4, but members failed to agree on what to do.
Colusa City Attorney Krysten Hicks said in November that she would explore a number of options for the city to address the outdoor cultivation of medical marijuana, which has — according to members of the council — become a smelly nuisance for some residents in the city.
At the most recent meeting, the council held a study session on the personal cultivation of marijuana for medical purposes, and Hicks presented them with three options: push the growers indoors with regulations on outdoor growth, require that structures be built for outdoor growing operations to essentially make them indoor, or ban the cultivation of medical marijuana outright.
The council was ultimately unable to come to any sort of agreement on adopting an ordinance, and — citing a lack of public input into the matter — elected to have another study session, tentatively scheduled for the March 18 council meeting.
"I want the public to have as much opportunity to talk about this as possible," Councilman Tom Reische said before the study session was closed.
Hicks said during the study session that most jurisdictions have opted to push growers indoors, and that only two jurisdictions have gone the route of an outright ban on the cultivation of medical marijuana — indoor or outdoor.
"Litigation is still ongoing with this," Hicks said.
Those two jurisdictions are Fresno County and the city of Live Oak. Late last year, a the 3rd District Court of Appeals ruled there was no unfettered right to grow medical marijuana, and upheld Live Oak's right to completely ban its growth.
The city of Live Oak was being sued by patients who claimed that the state law and previous court decisions should pre-empt a city's police power to prohibit the cultivation of all marijuana within that city. The Appeals Court cited a case which asserted a city's right to ban marijuana collectives within their jurisdiction. A filing has been made to appeal the more recent decision through the California Supreme Court.
In any of the proposed scenarios, the city would be able to take civil action — in the form of administrative citations — against violators who are growing medical marijuana within the amount they are legally allowed under their prescription, Hicks said.
Under existing state law, however, patients are protected from criminal prosecution.
Proposition 215 — otherwise known as the Compassionate Use Act of 1996 — explicitly protects medical marijuana patients and their primary caregivers from criminal prosecution or sanction. Section (1)(B) of Proposition 215 reads: One of the purposes of the Compassionate Use Act of 1996 is "to ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction."
"Why can't we just write this thing where we can go in and eradicate the problem? Have the drug task force to in and get rid of the plants?" Reische said.
Hicks said that there have been cases against law enforcement agencies in the past for destruction of a medical marijuana patient's plants, in which the decision favored the grower and required the agency to repay that person for monetary loss.
Councilwoman Marilyn Acree asked Hicks if the city could require permitting for medical marijuana patients to cultivate plants. Hicks said that that would create problems for the city. Because marijuana is still illegal federally, California cities have refrained from requiring permitting that could be seen as knowingly endorsing criminal activity, Hicks said.
Acree said the city needed to consider those individuals who were using the drug for legitimate purposes before it took action. She suggested that an ad-hoc committee be formed to attempt to gain a deeper understanding of all of the issues but did not make a motion to do so.
When asked for his input, Colusa Police Chief Ross Stark said that — as he understood it — it was the drug task force's preference that growing operations take place outdoors, because it makes monitoring for compliance and enforcement easier on the agency. He added the preference of an outside agency need not influence the council's decision on a city matters.
Mayor Greg Ponciano reiterated has long-held stance that the cultivation of marijuana is incongruent with the values of the city of Colusa and took a hard stance on how he believed the city should move forward.
"I don't think this actually fits the character of Colusa. I initially wanted to regulate to outdoor growth in structures," Ponciano said. "But right now, I am leaning toward an outright ban on medical marijuana cultivation. The enforcement (of regulating it to indoors) would be too difficult."
Ponciano said the city should not be concerned by the possibility of litigation should an outright ban be passed.
"I think we should move forward and not be intimidated by possible litigation that might come up against us," Ponciano said.