County and Sheriff sued by 215 growers

Say 25-plant parcel limit unconstitutional
Five medical marijuana patients are suing the Mendocino County Board of Supervisors and Sheriff Tom Allman.
The suit, filed Friday morning in the Mendocino County Superior Court, claims the county's marijuana cultivation ordinance is unconstitutional because it limits cultivation in ways state law, outlined in Proposition 215, the Compassionate Use Act of 1996, and in Senate Bill 420, does not.
The lawsuit seeks an injunction to stop the county from enforcing its marijuana cultivation ordinance, codified as Mendocino County Code 9.31. It also seeks attorney's fees on behalf of five marijuana patients who say 9.31 violates their rights under state law.
SB 420 allows a patient to have six mature plants or 12 immature plants, or the amount a doctor recommends. The marijuana cultivation ordinance says no more than 25 plants can be grown on a parcel, or it's considered a nuisance.
"I believe strongly that this 9.31 ... is really a wish list of how the Board of Supervisors would like the law to work, but that's simply not how the law really works. The law, and the state, sent a clear message through the legislature that if counties and board(s) of supervisors seek to exceed those limits, they can do that. But they simply cannot decide that they want to limit those below that threshold," attorney Edie Lerman said.
She called the county's 25-plant-per-parcel limit unlawful, arbitrary and capricious, and said even the
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99-plant exception being considered for marijuana collectives and cooperatives is unlawful.
Lerman and attorney J. David Nick jointly filed the suit.
A hearing date to determine whether a preliminary injunction will be granted was set for Oct. 9 at 9:30 a.m. in the Ukiah courthouse. If granted, the injunction would be in place until a determination can be made about whether a permanent injunction would be granted.
Lerman said the "most egregious" problem with the county's marijuana cultivation ordinance is that it says marijuana can't be grown within 1,000 feet of a school or a school bus stop.
"That's not even for the grow, specifically, it's just where that property line ends. So someone that has 100 acres, and that property line ends near a school or near a school bus stop, even if they were going to grow on the other end of their parcel, they wouldn't be allowed to do that," Lerman said.
Plaintiff Jim Hill said the location of school bus stops change without notice, which he said creates a problem for growers.
Lerman said any county ordinance can't prevent medical marijuana patients from doing what SB 420 allows them to do. She suggested the county craft its ordinance, which is currently under revision, to ensure safe access for patients.
"I think that the county needs to wake up, and they need to realize that the way to revise it in such a way would be to make it so that your objective is to enhance patient access to their medicine," Lerman said.
Sheriff Allman said at 1 p.m. on Friday that he hadn't yet seen the lawsuit and could not comment on it until he had looked at it and had spoken to County Counsel Jeanine Nadel about it.
Nadel said at 1:30 p.m. on Friday that she hadn't seen the lawsuit yet, either, and added that it isn't her practice to comment on litigation matters.
Tiffany Revelle can be reached at udjtr@pacific.net, or at 468-3523.