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Q: Can cities legally block residents from growing up to six plants at home — even temporarily? I thought that right was guaranteed by Prop. 64?
A: As with most marijuana-related legal issues, there is no clear answer to this question. You’re correct that Proposition 64 allows six plants to be cultivated within a single private residence at one time, and expressly provides that a city, county (or both) cannot “completely prohibit” growing those six plants. However, as your question suggests, certain cities are testing ways to limit or even temporarily ban such personal cultivation.
Proposition 64 itself states that a city or county “may enact and enforce reasonable regulations to reasonably regulate” residential cultivation of up to six plants. We have already seen that local governments are experimenting with different ways to interpret this language. Some cities require background checks for prospective home growers, some require a notarized signature from a prospective grower’s landlord, and some require the payment of fees and periodic home inspections. Marijuana advocates and government entities clearly have different opinions on whether these restrictions are “reasonable.”
Benjamin Franklin once said that there were only two things certain in life: death and taxes. I will add a third. Any time a law uses the word “reasonable” there will be litigation to determine what that means. And although I am not aware of any such lawsuits yet, there will not be a one-size- fits-all determination regarding what regulations comply with Proposition 64. Just as different city councils have different opinions about what is “reasonable” when enacting regulations, so too will the judges interpreting those regulations. But, as a general guiding principle, the closer those regulations get to imposing a de facto ban, and the farther they get from legitimately protecting health and safety, the more legally indefensible those regulations will be.
To the extent your question references temporary moratoriums on residential cultivation, the answer is still murky, though there are reasons for cautious optimism. California Government Code § 65858 provides that a city or county may adopt an ordinance that takes immediate effect to temporarily prohibit a particular land use so that a locality can have time to study the potential effects of the proposed use and establish new, permanent regulations of that use. Even before Proposition 64 passed, some cities used this statute to impose temporary moratoriums on establishing medical marijuana dispensaries, and such urgency ordinances have held up in court. However, although I’m not a land use attorney, it is something of a stretch to argue that growing a plant in your house impacts a city’s land use like opening a commercial dispensary. And Proposition 64 explicitly states that local governments cannot “completely prohibit” residential cultivation, and a temporary moratorium is still a moratorium.
Related: Cities push back against Prop. 64 with strict rules on growing marijuana at home
Seemingly, most local governments agree, because, while many cities have enacted “reasonable regulations,” it appears that only a few cities have enacted temporary moratoriums on residential cultivation. Moreover, while the legality of these ordinances has not yet been challenged in court, there is reason to believe that legal challenges may be unnecessary if residents and legal advocates speak out.
In Elk Grove, for example, the Planning Commission voted on March 2, 2017 to recommend that the City Council repeal its previously adopted urgency moratorium on residential growing, which was to be in effect through Dec. 13, 2017. (Perhaps not coincidentally, Elk Grove had been threatened with a lawsuit and had received a letter from attorneys with the Drug Policy Alliance arguing that such an ordinance violated state and constitutional law.)
Read more from attorney Christina Semmer: Can my landlord prohibit me from smoking pot? From growing it?
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In short, the battle may be won without a formal court challenge, due to good old-fashioned civic engagement. And even the cities that want to keep fighting the influence of Proposition 64 may conclude that it is not worth spending time and money fighting for urgency moratoriums that can only last up to two years. (Indeed, if the moratorium expired before a judgment in the case, it would be moot. Talk about wasted money.) Those cities’ resources are better spent crafting the “reasonable regulations” that Proposition 64 contemplates.
Christina Semmer is an employment and business lawyer who counsels employers regarding Proposition 64 and workplace drug policies. Ms. Semmer practices law at Wilson Turner Kosmo, LLP, the largest certified women-owned law firm in San Diego.
Disclaimer: This column is solely informational in nature and is not intended as legal advice.