Mendocino Co. District Attorney clarifies changes in medical marijuana policy
According to a press release from the Mendocino County District Attorney’s Office, dated March, 1, 2012:
As recently reported by the local media, Mendocino County Ordinance, §9.31, has been amended by the Mendocino County Board of Supervisors to, among other things, withdraw an important aspect of the ordinance that allowed for local regulation and oversight over certain conduct that may be lawful pursuant to the 1996 California voter-approved (55.6%) initiative, Proposition 215, now codified as California Health and Safety Code §11362.5, et seq., and including follow-on legislation.
For the limited purpose of this status report, §9.31 had two major components relevant to this discussion – the voluntary and mandatory components. Simplistically stated, §9.31 codified (in the form of a nuisance ordinance) “community standards,” those standards being no more than 25 plants allowed per parcel no matter the number of recommendations people may attempt to attach to that single parcel. If patients with lawful physician’s recommendations wish to be up front and out in the open, Sheriff-issued and registered zip ties continue to be voluntarily available for purchase at $25 per plant. Voluntary zip tie participation requires patients to voluntarily disclose to and register with law enforcement the location of medicinal plants, and allow for the registered plants to be inspected and monitored by Sheriff deputies and/or third party inspectors. Whether or not zip tie participation was in fact occurring — since early 2011 – has been one factor considered among many by the prosecuting attorney in determining whether allegations of illegal marijuana-related conduct were valid. It is important to note that defendants prosecuted, convicted and currently on grants of probation pursuant to the District Attorney’s Health and Safety Code §11470.2 option (misdemeanor prosecution with restitution paid to law enforcement) are required to have a Sheriff-issued zip tie for each plant, one and above, during the full term of their probation. Again, the aforementioned zip tie program is still operating and zip ties are available for grow year 2012 for probationers and non-probationers alike at the Sheriff’s Low Gap Road administration office.The zip ties are available to veterans and Medicare-qualified patients at 50% fee reduction.
The more problematic aspect of the retooling of §9.31 is the elimination of the 26 to 99 plant exemption or variance for collectively or cooperatively-grown medicinal cannabis. Pending further review, which includes judicial review of litigation pending before the California Supreme Court, this local law enforcement-based disclosure and monitoring program is not be available during grow year 2012. Please consult private counsel if you have questions about what this means for your fact-specific situation. That having been said, it continues to be the recommendation of the Mendocino County District Attorney that all patients seeking to stay legal in their effort to homegrow medicinal marijuana do so on (1) authorized private property and, (2) for those growing on property located in the Sheriff’s jurisdiction, that you purchase and participate in the voluntary aspect of the Sheriff’s registered zip tie and monitoring program not to exceed 25 plants. Participation will continue to be one factor considered by the prosecuting attorney if allegations come before him of criminal wrongdoing. Finally, it is the position of the Mendocino County District Attorney that any marijuana grown in trespass situations or on public lands – whether with a recommendation or not — shall never be deemed legal. Individuals promoting or otherwise participating in such unlawful conduct will be vigorously prosecuted to the full extent of the law.
The California Supreme Court issued an order on January 18, 2012 indicating its intent to review two medical marijuana cases that have resulted in the suspension of several local dispensary ordinances across the state. Accordingly, the appellate rulings in Pack v. City of Long Beach and City of Riverside v. Inland Empire Patient’s Health and Wellness Ctr., Inc. have both been vacated pending the High Court’s review and ruling. The Pack decision held that some dispensary regulations are preempted by federal law and the Riverside decision held that localities could legally ban distribution altogether.