Pot shop, farm moratorium extended

It required at least a four-fifths vote, but El Dorado County supervisors were unanimous in their decision to extend the county’s two moratoria regarding cultivation and distribution of medical marijuana. Tuesday’s board meeting ended with the vote following testimony both for and against extension of the moratoria that have been in place for the past year.

Adopted Nov. 15, 2011, the original ordinances were created under guidelines the county uses in situations of “urgency.” The first moratoria ran for 45 days and were then extended for an additional 10 months and 15 days. Under the law, the moratoria may last for up to two years.

As written and later amended, the first ordinance allows for “outdoor cultivation within a 200 square foot area surrounded by a 6 to 8 foot fence for personal medical purposes” for the duration of the moratorium.

The second ordinance prohibits “the establishment of new medical marijuana distribution facilities,” including all “dispensaries,” “cooperatives” and “collectives” for the duration of the moratorium.

A third section of the ordinances directed county staff to “develop, with the community advisory group, zoning and other appropriate permanent regulations governing the cultivation of medical marijuana and medical marijuana distribution facilities.”

El Dorado County Sheriff John D’Agostini told the board that he supports the extension of the ordinance that established the moratoria.

“My office thinks it’s a good idea to keep the moratoria in place and keep working toward a comprehensive ordinance,” D’Agostini said. “Lately, ‘smell complaints’ are killing my guys,” he added, noting that deputies have been called to respond to residents complaining about the smell of marijuana being harvested by neighbors.

The county established a medical marijuana advisory committee after the first ordinance last year which combined legal staff, growers and patients’ groups. That body will continue to meet over the next several months and public hearings will be held at the Planning Commission and eventually again at the Board of Supervisors.

Describing the committee, Development Services Director Roger Trout told the board, “They don’t all agree on the same things.”

Speakers in favor of extending the moratoria cited examples of degradation of their neighborhoods by unknown growers. They related incidents of armed men roaming the perimeter of large pot gardens, pit bulls running loose, lots of fast-moving traffic in previously tranquil neighborhoods and “strangers and gunshots in the night,” according to one Georgetown Divide resident.

“A neighbor has turned my yard into a military zone,” a man from the Gold Trail area told the board.

Members of the community advisory committee who represent the medical cannabis grower and user community described their personal opposition to the extension but noted that they were unified with the work of the committee.

“I’ll continue to support the extension, but I don’t prefer it,” Bobby Isenberg told supervisors. “But I’d like to know from the sheriff how it’s been for the past year.”

Mitch Fidel said he went along with the committee’s decision but urged “everyone to hurry with a (permanent resolution) so growers can be ready for the next planting season.”

John Barrett, a frequent speaker when the issue has been on the board’s agenda called for supervisors to “let the moratoria lapse. It’s a Band-Aid on a bad law… and this is about making and distributing medicine,” he said.

Supervisor Ray Nutting said that some of his neighbors have complained about a “noxious smell” emanating from gardens in the south county, and he asked deputy county counsel Paula Frantz, “Does the county have a policy regarding noxious smells?”

Frantz explained that she doesn’t like the smell of roses and that an agreeable smell to one person may be a noxious smell to another.

“We do not have a smell ordinance,” she said. “We have a noise ordinance, because there’s a machine that can measure noise.  You can determine certain setbacks or level of use but (you can’t create an ordinance against a smell.)”

Local attorney Brian Briggs took a different approach to the moratoria.

“I think it’s a facially unlawful ordinance,” Briggs said. “You can’t ban co-ops.”

In a phone conversation Wednesday morning, Briggs explained that he is not particularly supportive of the medical marijuana laws in place, but said he is in favor of “the county not passing unlawful ordinances.”

Asked if he would consider bringing suit against the county on behalf of an opponent of the moratoria, Briggs said, “Absolutely.” The interplay between local, state and federal law regarding medical cannabis is especially interesting to Briggs. He described the conundrum of the county attaching criminal penalties for violations of an ordinance.

“The state Health and Safety Code decriminalizes exactly what’s being (criminalized) here,” he said. “This kind of law is evolving rapidly, almost on a daily basis sometimes.”

As an example, he cited a 2012 ruling in an ongoing case in Southern California titled City of Lake Forest v. Evergreen Holistic Collective. In brief, an appellate court overturned an earlier decision that had allowed the city to “ban” medical marijuana dispensary collectives.

The new ruling prevents the city from outright banning collectives, but requires that they meet certain standard conditions. That ruling further requires that the product being sold by the collective must also be produced at the collective. Because most dispensaries are storefronts and not farms or gardens, proprietors would be in violation if they sold medical marijuana that was grown elsewhere.

Brian Briggs is the son of District 4 Supervisor Ron Briggs who voted with the majority Tuesday to extend the moratoria.

Relevant and related laws

Documents included in the county’s ordinances describe a tangled history of jurisdictions allowing, restricting, outlawing and reauthorizing the cultivation and use of medical marijuana.

Under the federal Controlled Substances Act of 1970, Congress made it “illegal to import, manufacture, distribute, possess or use marijuana in the United States.”

Voters in California approved Proposition 215 in 1996. Codified in the state’s Health and Safety Code, the law was entitled the Compassionate Use Act of 1996 (CUA).

The Medical Marijuana Program Act (MMPA) took effect Jan. 1, 2004. The California Legislature enacted the MMPA to clarify the scope of the 1996 Compassionate Use Act. “It allows cities, counties and other governing bodies to adopt and enforce regulations consistent with the MMPA.”

Contact Chris Daley at 530-344-5063 or cdaley@mtdemocrat.net. Follow @CDaleyMtDemo. 

Chris Daley

Chris has written a weekly column for the Democrat for more than 20 years and has Master’s Degrees in Russian History, Psychology and Career Counseling. He has been a staff writer for a number of years and enjoys it because he "learns so much about so many things."

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