Sacramento City Council has outlawed outdoor cultivation by legal cannabis patients, citing public safety and smell concerns. Now, added to this ban is the classification of cannabis cultivation as wasted water: Patients are no longer allowed to water legal, indoor plants, yet there is no penalty on those growing equally-legal crops hydroponically indoors, like tomatoes or herbs. What legal right does the council have to single out this particular crop when cultivated in accordance with local and state laws?
The law regarding medical marijuana cultivation is a hot topic right now. Almost every law-making authority is passing new laws on the subject. Reporting on these legislative efforts is a daunting task. The laws seem to contradict each other; they seem to change almost every day, and they are very hard to understand.
FEDERAL
Let’s start with federal law, and the subjects federal laws can govern. The federal government regulates drugs through the Controlled Substances Act (Pub.L. 91–513, 84 Stat. 1236, enacted October 27, 1970, codified at 21 U.S.C. § 801 et. seq.), which does not recognize the difference between medical and recreational use of marijuana. Thus, federal law enforcement officials may prosecute medical marijuana patients, even if they grow their own medicine and even if they reside in a state where medical marijuana use is protected under state law.
The right of the states to make laws governing safety, health, and welfare is derived from the 10th Amendment, which states “the powers not delegated to the United States by the Constitution, nor prohibited to it by the states, are reserved to the States respectively, or to the people.” It is the exclusive power of state governments to provide for the public health and safety of its residents. State legislatures exercise their police power by enacting statutes, and they also delegate much of their police power to counties and cities.
STATE
Which brings us to state laws. Under California’s power to provide for the public health and safety of its residents, Governor Brown signed a law to regulate the cultivation and use of medical marijuana on Oct. 9, 2015. That law is meant to address the “lack of statewide guidelines [that] has caused many cities and counties to struggle to assert their control over mushrooming pot dispensaries.” Despite the legality of marijuana cultivation and dispensaries in different jurisdictions, zoning and other ordinances had been used to effectively prohibit marijuana cultivation and sales.
“Assembly Bill 243, Assembly Bill 266, and Senate Bill 643, establish a long-overdue comprehensive regulatory framework for the production, transportation, and sale of medical marijuana,” said Gov. Brown in his signing statement. Although many of the new standards won’t take effect until Jan. 1, 2018, Brown’s statement reads that “state agencies will begin working immediately with experts and stakeholders on crafting clear guidelines, so local government, law enforcement, businesses, patients and health providers can prepare and adapt to the new regulated system.” The new agency regulations will make sure patients have access to medical marijuana, and “sends a clear signal to our federal counterparts that California is implementing robust controls not only on paper, but in practice.”
After voters in Washington and Colorado legalized medical marijuana in 2012, the federal Department of Justice issued a memo suggesting that it would refrain from targeting states with “strong and effective regulatory and enforcement systems,” language Brown intentionally echoed in his signing statement.
The state statute will create a new Bureau of Medical Marijuana regulation, housed in the Department of Consumer Affairs. It will enable various state agencies to promulgate state regulations overseeing everything from cultivation to transport and sale. Industry members will be compelled to obtain both state and local permits, and cities and counties can maintain bans and restrictions on medical cannabis. Rules governing water discharge will apply to cannabis, now classified as an agricultural product.
A state agency regulation is “a rule, adopted by a state regulatory agency to implement, interpret, or make specific the [State] law enforced or administered by it, or to govern its procedures.” A state agency regulation must be based on the authority, or “enabling statute,” passed by the State legislature.
COUNTY
California is divided into 58 counties, which are legal subdivisions of the state. County councils may make and enforce local ordinances and regulations that are deemed “not in conflict” with general law. County councils can also govern in unincorporated areas where no city governs. Counties may promulgate local ordinances, which are usually codified into county codes.
The Sacramento County Board of Supervisors had already banned outdoor marijuana growth in unincorporated areas of the County (Sacramento County Code section 6.88.050), but on Aug. 11 also declared that any illegal water-reliant activity (including, but not limited to, outdoor marijuana growth) is a form of water waste.
Section 3.40.120 of Chapter 3.40, Title 3, of the Sacramento County Water Agency Code, was amended to read as follows:
A. No person or persons shall use, or cause to be used, Agency water in a negligent or wasteful manner, or in violation of the Water Shortage Contingency Plan, of the Sacramento County Code, or state law or regulations.
This amendment has not yet been added to the Sacramento County Water Agency Code, but can be found on the County Board of Supervisors’ website.
And while Sacramento County residents can cultivate up to nine plants indoors for medical use (Sacramento County Code section 6.89.050), exceeding that limit is now also subject to penalties for water waste.
On Aug. 11, the Sacramento County Board of Supervisors declared that illegal water-reliant activity (including, but not limited to, indoor marijuana growth) is a form of water waste.
Section 3.40.130 of Chapter 3.40, Title 3, of the Sacramento County Water Agency Code was amended to read as follows:
No person shall …. use water in a wasteful or negligent manner, or in violation of the Water Shortage Contingency Plan, or state law or regulations.
This amendment has not yet been added to the Sacramento County Water Agency Code, but can also be found on the County Board of Supervisors’ website.
Although both new ordinances are technically neutral, Sacramento’s Chapter of the National Organization for the Reform of Marijuana Laws claims that the ordinances are really aimed at curbing marijuana growth.
CITY
There are approximately 482 California cities, also known as municipal corporations. The California Constitution provides express authority for the creation of, and the exercise of authority by, municipal corporations, or cities.
Municipal corporations in California do not have common law powers, but only such powers as are expressly granted by the California Constitution, the city charter, and such powers necessary or indispensable to carry out express powers and the purpose of the city.
City councils may make ordinances that are deemed “not in conflict” with general law. Those ordinances, which are usually codified into city codes, legislate on topics affecting the health, welfare and peace of the city’s inhabitants. For example, Sacramento City Code section 5.150.010, regarding business licenses for Medical Marijuana Dispensaries, states:
“It is the purpose and intent of the city council to regulate medical marijuana dispensaries . . . to protect the health, safety, and welfare of the residents of the city. The regulations in this chapter do not interfere with a qualified patient’s right to obtain and use marijuana as authorized under state law, nor do they criminalize the possession or cultivation of marijuana by qualified patients or their primary caregivers. Medical marijuana dispensaries shall comply with all provisions of the Sacramento City Code, state law, and all other applicable local codes and regulations. It is neither the intent nor the effect of this chapter to condone or legitimize the illegal use or consumption of marijuana under federal, state, or local law. (Ord. 2010-037 § 1).”
The largest part of any city code is usually its zoning code, which states how and where certain businesses may be built. Most of the City of Sacramento’s laws on the cultivation and possession of marijuana for medical use are in the Sacramento City Zoning Code, and deal with medical marijuana dispensaries and the rules the dispensaries must follow.
Do you have a question for the County Law Librarian? Just email comstocks@saclaw.org