Lawsuit Challenges Unconstitutional City Ordinance that Restricts a Resident’s Right to Cultivate Marijuana Under California’s Adult Use of Marijuana Act (Prop. 64)
CALIFORNIA—(ENEWSPF)—June 6, 2017. Yesterday, the Drug Policy Alliance and ACLU of California filed a lawsuit against the City of Fontana challenging a city ordinance that is in conflict with Proposition 64 (also known as the “Adult Use of Marijuana Act” or “AUMA”). The challenged ordinance places significant restraints on an adult’s legal right to cultivate marijuana plants at their personal private residence. The lawsuit seeks to invalidate the ordinance because it is preempted by Prop. 64 and violates several state constitutional rights.
On November 8, 2016, the people of California voted in favor of Prop. 64, which allows adults 21 and older to possess up to one ounce of marijuana and cultivate up to six marijuana plants at their private residence away from public view. While Prop. 64 allows local governments to regulate indoor personal cultivation, they cannot adopt unreasonable regulations or prohibit anyone from cultivating altogether.
Among other problematic provisions, the ordinance requires residents to register with the city, undergo a criminal background check, open their home to city officials, and pay an expensive fee before obtaining a permit that would allow them to grow marijuana plants in their private home. By the City Council’s own admission, this process is meant to deter its residents from engaging in legal conduct under state law.
“This ordinance is at odds with state law enacted by a majority of the voters in California, in San Bernardino County, and the City of Fontana,” said Joy Haviland, Staff Attorney at the Drug Policy Alliance. “Local officials cannot limit or undo what is now legally allowed in California. Prop. 64 allows adults to cultivate for their own personal use in their private homes without unnecessary intrusion from the state.”
The lawsuit was filed on behalf of Mike Harris, a retired Fontana resident, taxpayer and homeowner since 1987 who seeks to cultivate marijuana at his residence.
“The ACLU of California supported Prop. 64, in large part because of our longstanding policy that possessing or cultivating marijuana for personal use should not be a crime,” said Jess Farris, Director of Criminal Justice at the ACLU of Southern California. “The Fontana ordinance – and other similar ordinances around the state – would criminalize the very conduct Prop. 64 legalized, particularly for people who are ineligible to obtain a permit because of their criminal convictions or their lack of funds to obtain a permit or to dedicate an entire room in their home to cultivation.”
Prop. 64 passed with 57 percent voter approval statewide, including a majority of voters in the City of Fontana (53 percent) and the County of San Bernardino (52 percent). The Drug Policy Alliance’s affiliated organization, Drug Policy Action, served as a co-chair of the Prop. 64 campaign committee. ACLU of California endorsed Prop. 64 among other diverse statewide stakeholders such as Lt. Gov. Gavin Newsom and other lawmakers, the California Democratic Party, and the California Medical Association.
Drug Policy Alliance Blog
Drug Policy Alliance and ACLU of California Sue City of Fontana to Uphold Rights Granted by California’s Marijuana Legalization Law
By: Joy Haviland, June 6, 2017
Yesterday, the Drug Policy Alliance and the ACLU of California filed a lawsuit against the City of Fontana challenging a city ordinance that is intended to effectively prevent residents to enjoy the rights granted to them by Proposition 64 (also known as the “Adult Use of Marijuana Act” or “AUMA”). The Fontana ordinance makes it unreasonably difficult and expensive for residents to cultivate marijuana at their private residence as Prop. 64 allows.
On November 8, 2016, the people of California voted in favor of Prop. 64, which allows adults 21 and older to possess up to one ounce of marijuana and cultivate up to six marijuana plants inside their private residence away from public view. While the new law allows cities to regulate indoor personal cultivation, they must do so reasonably and cannot prohibit anyone outright from cultivating.
Shortly after the law took effect, several cities acted against the will of the voters and adopted ordinances that are so restrictive they operate as a de facto ban on cultivation. And for some groups of people, such as people with a prior felony drug conviction, it is an outright ban. In Fontana—where Prop. 64 passed with 53.5 percent of the vote and with 52.5 percent in the surrounding San Bernardino County—the Mayor and City Councilmembers even boasted that they wanted this ordinance to be the most restrictive in the state and they hoped it would to deter people from cultivating marijuana.
In addition to being unreasonable and in conflict with Prop. 64, the ordinance violates several state constitutional rights. Among other problematic provisions, the ordinance requires residents to register with the city, undergo a criminal background check, open their home to city officials for an inspection, and pay an expensive fee before obtaining a permit that would allow them to grow marijuana plants in their private home. If someone cultivates marijuana but fails to obtain the city permit they are subject to a misdemeanor even though the conduct is legal under state law.
The Drug Policy Alliance’s affiliated organization, Drug Policy Action, served as a co-chair of the Prop. 64 campaign committee. DPA is committed to making sure the measure is implemented the way that the voters of California intended.
The primary purpose of legalization is to reduce the criminalization of adults for using, possessing, and cultivating marijuana. The overwhelming majority of states that have legalized the adult use of marijuana have also legalized the personal cultivation of marijuana plants at a private residence. Personal cultivation also gives consumers a legal alternative to retail marijuana, which cannot be purchased in the state until 2018, and to marijuana in places where local governments legally choose to ban marijuana businesses. (Medical patients, however, may continue to purchase medical marijuana at dispensaries.)
City ordinances that are plainly intended to circumvent what state law now allows invite legal challenges such as this one. Local governments cannot undermine or undo what their voters and what the voters of California have embraced.
Joy Haviland is a staff attorney with the Drug Policy Alliance.
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