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Town's Ban on Medical Marijuana Cultivation Stands

By William Peacock, Esq. on December 02, 2013 | Last updated on March 21, 2019

This may have been an interesting legal case, if it wasn't already all-but-decided by the California Supreme Court earlier this year.

The City of Live Oak passed an ordinance in 2011 that banned all cultivation of marijuana, regardless of whether the grower was doing so for personal use, medicinal use, or retail. The city did so due to fear of property damage, increased crime, the nuisance of noxious odors, the inability of the state laws to prevent recreational use, and because the city wished to comply with federal law.

And though the Compassionate Use Act (Proposition 215) and the Medical Marijuana Program provide exemptions from prosecution for medical marijuana-related offenses, the California Supreme Court's holding earlier this year in Inland Empire nixed any arguments the plaintiffs may have had.

CUA and MMP are Limited

The California medical marijuana system is the byproduct of two laws, Proposition 215, otherwise known as the Compassionate Use Act of 1996, and the Medical Marijauna Program. Together, the statutes set up the system of marijuana prescription cards and created exceptions in criminal law for those cultivating, prescribed or prescribing marijuana.

The key word is criminal law, not zoning laws, city ordinances, or traditional city police powers.

City of Riverside v. Inland Empire Patients Health and Wellness Center

In Inland Empire, the California Supreme Court addressed the City of Riverside's attempt to pass an ordinance that banned dispensaries from city limits. The court upheld the ordinance, stressing the narrow interpretation of the CUA and MMP by courts since the laws' passage, and the inherent police and zoning powers of local communities.

Same Case, Different Activity

Though the challenge to this ordinance addresses medical marijuana cultivation, rather than retail sales through dispensaries, the logic and law are the same. Writing for the appellate court, Judge Elena Duarte, relying heavily upon the Inland Empire decision, firmly stated, "Because ... there is no right -- and certainly no constitutional right -- to cultivate medical marijuana, the premise of each cause of action in plaintiffs' second amended complaint fails."

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