COUNTY COUNSEL'S OFFICE - M. GRANGER

Receive update from staff and the ad hoc committee regarding the marijuana cultivation ordinance.  Discussion of current status of interim urgency ordinance & development of a new marijuana cultivation ordinance, enforcement of existing San Benito County ordinance, and future actions to be taken under existing interim ordinance regarding applications for extended amortization periods.  Provide direction to staff.

SBC FILE NUMBER: 160

Information from the March 28, 2017, Board of Supervisors' meeting is presented below.  At that time, this matter was continued to the April 11, 2017 meeting for a further report and recommendation of the Ad Hoc Committee.  At the April 11th meeting of the Board of Supervisors, the Board will receive a further report from the Ad Hoc Committee and provide direction to staff.

From March 28, 2017 Board Meeting

Introduction:

Today’s board report will address the following issues:

1. Current status of interim urgency ordinance regarding marijuana cultivation

2. Current status of development of a new marijuana cultivation ordinance

3. Summary of effect of annual Federal Budget appropriations

4. Summary of ability to criminally enforce existing San Benito County ordinance

5. Receive direction from the Board of Supervisors regarding future actions to be taken under existing ordinance.

A. Current Status of Interim Urgency Ordinance

The current ordinance was adopted September 27, 2016 for a 45 day period of time.  It was extended on November 8, 2016 for an additional 10 months, fifteen days. It remains in effect through September 23, 2017.  On or before September 23, 2017, by 4/5 vote, the Board may extend the ordinance for an additional 12 months.

B. Current status of development of a new marijuana cultivation ordinance

Below is a high level summary of the Board’s actions to date regarding development of a cultivation action. 

September 22, 2015 – consideration of proposed cultivation ordinance

The proposed cultivation ordinance would have prohibited outdoor cultivation of marijuana and restricted indoor cultivation to no more than 12 plants on any premises. The ordinance also contains a limited immunity section, with a registration process, to allow a 2 year amortization period for existing cultivation sites.  Introduction of the ordinance was made, and the matter continued to October 6, 2015 for adoption.

October 6, 2015

      On October 6, 2015, the matter was referred back to the committee for further study.

December 9, 2015

            Public Meeting on future marijuana cultivation ordinance held by the Ad Hoc Committee.

October 6, 2015-September 27, 2016: 

            Continued work on draft cultivation ordinance and draft urgency ordinance.

September 27, 2016:

            Approval of 45 day urgency interim ordinance.

November 8, 2016:

            Public Hearing to Urgency Interim Ordinance an additional 10 months, 15 days.

January 10, 2017:

            Appointment of new ad hoc subcommittee.

Feb. 15, 2017

Approval of contract with consultant Pinnacle Strategy, staffed by Victor Gomez, to help facilitate County developing new cultivation ordinance

February 18, 2017

              Presentation by Pinnacle Strategy at Board Retreat.

C. Effect of Annual Federal Budget Appropriations

On August 16, 2016, the 9^th Circuit Federal Court of Appeals held in the case United States of America v. Steve McIntosh, et. al. 833 F.3d 1163, that the Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws:  

.. If DOJ wishes to continue these prosecutions, Appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law, by which we mean that they strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana. . .

The Court further noted that:

 “§ 542 does not provide immunity from prosecution for federal marijuana offenses…The federal government can prosecute such offenses for up to five years after they occur. See 18 U.S.C. § 3282. Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses. Nor does any state law "legalize" possession, distribution, or manufacture of marijuana. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits. U.S. Const. art VI, cl. 2. Thus, while the CSA remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law.

In short, to the extent that the congress continues to put similar language in each annual budget appropriation, the DOJ will continue to be restricted from spending money to prosecute cultivators’ whose conduct is completely authorized by state law.    Potentially there may be more enforcement of recreational marijuana in the future under President Trump; however, whether this is true and to what degree enforcement could occur is unknown at the present time.

D. Summary of ability to criminally enforce existing San Benito County ordinance

The enforcement section of the County’s current ordinance states:

11.15. 090 - ENFORCEMENT

(A)   Violation; criminal penalties.  The County may enforce this ordinance through all lawful provisions set forth in State Law and the San Benito County Code, including but not limited to the prosecution of a civil action, including an action for injunctive relief.  The remedy of injunctive relief may take the form of a court order, enforceable through civil contempt proceedings, prohibiting the maintenance of the violation of this Ordinance or requiring compliance with other terms.  Additionally, failure to abate a notice of violation may also be enforceable criminally, to the extent allowed by the County Code and State law.  However, notwithstanding the foregoing, violation of this Ordinance does not constitute a misdemeanor or infraction.

            (B)   Violation; public nuisance. Any violation of this chapter is unlawful and a public nuisance and shall be abated, eliminated and enjoined as provided in Chapter 1.03 of this code, and/or as may be allowed by State Law.

            (C)   Administrative citation. Any person violating any provisions of this article may be issued an administrative citation as set forth in Chapter 1.04 of this Code, except that notwithstanding Section 1.04.005, any nuisance as described in this chapter may be subject to an administrative penalty of up to one thousand dollars per day.  The administrative penalty may be imposed via the administrative process set forth in Chapter 1.04, as provided in Government Code Section 53069.4, or may be imposed by the court if the violation requires court enforcement without an administrative process.

            (D)   Remedies; cumulative. Except as otherwise provided by law, the remedies for violation(s) of this Chapter shall be cumulative and not exclusive.  Nothing in this chapter is intended or shall be deemed or construed to limit or impair the ability of the county, or any of its officers, agents or employees, to take any administrative or judicial action, otherwise authorized by law, to abate any public nuisance.

It is noted that the provisions of subdivision (A) was similar to the San Luis Obispo County ordinance:

… by the prosecution of a civil action, including an action for injunctive relief. The remedy of injunctive relief may take the form of a court order, enforceable through civil contempt proceedings, prohibiting the maintenance of the violation of this Ordinance or requiring compliance with other terms. Notwithstanding the foregoing, violation of this Ordinance does not constitute a misdemeanor or infraction.

Both ordinances were drafted as a result of the 2015 California Court of Appeals’ ruling:

We conclude the CUCSA and the MMP's prohibition of arrests manifest the Legislature's intent to fully occupy the area of criminalization and decriminalization of activity directly related to marijuana. As a result, the criminalization provision in County Code section 10.60.080, subdivision A is “in conflict with” and thus preempted by the CUCSA and subdivision (e) of section 11362.71. (Cal. Const., art. XI, § 7.) Alternatively, the criminalization provision is void because it is not “consistent with” the MMP as required by subdivision (c) of section 11362.83. Consequently, Kirby has stated a cause of action for the preemption of the part of County Code section 10.60.080, subdivision A that provides a person violating the ordinance is “guilty of a misdemeanor and subject to the penalties as set forth in chapter 1.12.”

As to the scope of this cause of action, we conclude it does not provide a basis for invalidating the entire ordinance because the ordinance's severability provision expresses the intent that the invalidity of any part shall not affect the validity of any other part of the ordinance. (County Code, § 10.60.090.) Thus, the only provision subject to invalidation under this legal theory is the provision classifying violations of the ordinance as misdemeanors. (Cf. Kelly, supra, 47 Cal.4th at pp. 1048–1049 [§ 11362.77 invalidated only to the extent of its unconstitutional application; lower court erred in voiding § 11362.77 in its entirety].) To further explain the scope of the cause of action stated by Kirby, we note the possibility that failing to abate a public nuisance involving the cultivation of medical marijuana might be prosecuted as a misdemeanor. This indirect criminal sanction is not preempted because the failure to abate a public nuisance after notice is recognized as a separate crime by the Legislature. (See Pen. Code, § 373a [person who allows a public nuisance to exist on his or her property after reasonable notice in writing is guilty of a misdemeanor]; see also Health & Saf. Code, § 11362.83, subd. (b).)

Kirby v. County of Fresno, 242 Cal. App. 4th 940 (Cal. App. 5th Dist. 2015)

However, in the future it will be necessary reevaluate the potential of criminal prosecution of violations of the County’s permanent marijuana ordinance due to evolving case and statutory law.  It is noted that the ban in Kirby was an absolute ban on marijuana cultivation and was deemed to conflict with state law.

E. Receive Information from Ad Hoc Committee and Provide Direction to Staff

The Ad Hoc Committee will present to the Board recommendations.  Issues that may be addressed include, but are not limited to: future meetings of the Ad Hoc Committee and/or whether hearings should be scheduled regarding the applications that have been received for an extended amortization period.

The current interim ordinance cannot be enforced against any cultivator who has filed a request for amortization until that request has been resolved

“The County shall not take any action to enforce this Ordinance against any owner or operator of an existing facility if an application for an Extended Amortization Period has been filed in compliance with this Section and the application has not expired, or final action to deny the application has not occurred.” 

(Section 11.15. 120, subdivision E). 

The Board is required to hold at least one noticed public hearing on the application.  At that time, the Board shall approve, conditionally approve or deny the request.  Notice of the hearing must be published in a newspaper of general circulation and mailed to all persons and entities within 300 feet of the property.  The hearing shall be held within 180 days of the determination that the application is complete.  For good cause, the Board of Supervisors may delay the holding of the hearing for an additional 180 days.

At this time, the Board may determine to set the hearings, or direct staff to provide notice to the applicants that this matter will be scheduled before the Board of Supervisors to determine whether to extend the hearings for an additional 180 days due to the development of a new cultivation ordinance.

1. Provide staff direction as to whether to set formal hearings on the amortization requests, or whether to schedule this matter before the Board of Supervisors to determine whether good cause exists to extend those hearings by an additional 180 days due to the fact that the County of San Benito is currently devising a revised cultivation ordinance, and direct staff to provide notice to the applicants of the same.

    

2. Provide other direction to staff.