City accused of violating new marijuana law

The city of Elk Grove was threatened with a lawsuit pertaining to the City Council’s Jan. 25 approval of extending a restriction on marijuana cultivation in the city.

This ordinance imposes a moratorium on all commercial marijuana land uses and all marijuana cultivation within the city.

This moratorium was previously approved by the council upon city staff’s recommendation during the council’s Dec. 14 meeting.

A city staff report recognizes this temporary ordinance as necessary for the promotion of “the immediate preservation of the peace, health and safety of the public against the potential detrimental impacts of marijuana cultivation.”

While standing before the council, Jackie McGowan, a cannabis business licensing consultant, said that a lawsuit would be the result of a vote by the council to extend the moratorium.

“I have found a plaintiff, and I’m just letting you know that if you do follow through with this, you will be sued,” she said.

Prior to the council’s recent meeting, the council received a letter from attorneys Joy Haviland and Jolene Forman, who represent the Drug Policy Alliance, a national advocacy group “committed to ending the war on drugs, and to building a policy response to drugs that is grounded in science, compassion, health and human rights.”

Drug Policy Alliance co-sponsored the campaign for Proposition 64, which legalizes “the possession, transport, purchase, consumption and sharing of up to one ounce of marijuana and eight grams of concentrated marijuana for adults, 21 and over.” And this state measure, which was passed by voters last November, created a regulatory and licensing system for commercial cultivation.

The attorneys’ letter stresses that if the council decided to adopt the ordinance, it would violate state and constitutional mandates.

A portion of the letter notes that state law provides that it is “not a violation of state or local law” for anyone who is at least 21 to grow as many as six marijuana plants in their private residence.

It is also mentioned in the letter that the ordinance, by prohibiting all cultivation of marijuana, is “nothing short of a de facto ban on personal cultivation, which is disallowed under state law.”

Dale Gieringer, director of California NORML (National Organization for the Reform of Marijuana Laws), told the Citizen that the council’s recent action is in direct violation of Proposition 64.

“Proposition 64 makes it clear that local governments cannot ban the personal use, cultivation of plants indoors, basically,” he said. “They can regulate outdoor cultivation to some extent, reasonably, and they can ban commercial activity, if they want. But they cannot ban personal use cultivation. So, they’re out of line with the law there.”

Gieringer also commented on a possible lawsuit that could follow the council’s decision to extend the local marijuana moratorium.

“I wouldn’t be surprised if there was (a lawsuit),” he said. “I know there were at least one or two citizens there (at the Jan. 25 meeting) who were upset about this, who are in a position to sue. And I know of attorneys who would be a lot happy to take something like this on.”

Elk Grove city staff told the Citizen, “The City believes the ordinance to be lawful and consistent with state law.”