Tehama Patients Lose Cultivation Court Case



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So What Does This Mean For US?

Many members have expressed concerns that because the Tehama Superior Court dismissed CalNORML's challenge to their Cultivation Ordinance, that we might lose our case too.  Losing is always a possibility, but I don't feel it is a likely probability in our case.  The points of law we are using to challenge the ordinance are completely different than the nuisance factor used in Tehama.  (And I believe they will win on appeal.)

So take heart!  This is going to be a long battle, but it is one we can ultimately win.  I challenge every collective to set aside ONE plant this season for the ASA legal defense fund.  It is a small price to pay for the right to cultivate legally.

-Patricia Smith

See: Pot group appealing court ruling


Reprinted from the Corning Observer
COURT RULES TEHAMA CULTIVATION RESTRICTIONS VALID
February 3, 2011 - Superior Court Judge Richard Schueller dismissed Cal NORML's legal challenge to Tehama county's ordinance restricting medical marijuana cultivation. The court held that the county's powers to regulate nuisances through zoning ordinances were not preempted by the CUA or SB 420. The court ruled that "creating the potential for zoning enforcement as to medical marijuana is not the same as criminalizing it." The court cited theKruse v Claremont decision, which upheld the city's right to ban a medical marijuana dispensary.

Unlike Claremont, however, Tehama's ordinance limits the right of individual patients to grow. Unlike collectives, patients are explicitly protected under Prop 215. Judge Schueller also cited the Buchanan bill, H&SC 11362.768, which declares that nothing shall prohibit local govts from passing ordinances "further restricting the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, of provider." Cal NORML attorney J. David Nick points out that the Buchanan bill does not apply to individual patients or caregivers, nor does it override the legislative intent of SB 420.

The Tehama ordinance restricts the amount of marijuana patients or collectives can grow to 12 mature plants on 20 acres or less; requires 100 foot setbacks from neighboring property, and forbids any cultivation within 1000 feet of schools, school bus stops, churches, parks, or youth facilities.

Cal NORML believes the ordinance violates Prop 215 because it effectively makes it impossible for patients to supply their medical needs. Since Tehama county has also banned dispensaries of any kind, this effectively leaves those patients who can't grow on their own property without any legal access to medication.

Text of Judge Schueller's ruling

See background with links to motions filed in the case

See the Tehama ordinance

Corning Observer: Tehama court tosses marijuana