ACLU Lawsuit in California Could Clarify Local Power After Legalization


A lawsuit against the small southern California city of Fontana could determine just how much local officials can push back on state laws legalizing cannabis. The American Civil Liberties Union and Drug Policy Alliance are challenging the city’s personal cultivation permit requirements, which bar those convicted of a recent felony related to a controlled substance or people who have accrued city fines from growing cannabis at home — a core part of the state’s legalization.

The question of local power has become one of the most fundamental and tense political dynamics playing out in the United States and Canada as cannabis is legalized.  

In Michigan, Detroit officials passed regulations, later reversed, that effectively eliminated nearly the entire city for those seeking licenses to sell medical cannabis. Voters in Massachusetts, for example, have legalized recreational use cannabis but some local officials have not made cannabis widely available to consumers by banning sales. In Canada, Quebec has taken on the federal government by banning home cultivation of cannabis for recreational use, which is not allowed under the country’s new legalization plan.

Even in progressive California, conservative politics and local opposition to legalization have contributed to an anti-cannabis environment in much of the vast state since the passage of legalization initiative Proposition 64 in November 2016.

Fontana, a city of 200,000 in San Bernardino County in southern California, has some of the most restrictive regulations when it comes to personal cultivation, attorneys for the ACLU and Drug Policy Alliance told Cannabis Wire. Prop 64 allowed localities to ban, or pass its own regulation of, commercial activity while allowing smaller amounts of cannabis for personal use. It sought to enshrine recreational use as a right for individuals but allowed localities to pass “reasonable” regulations.

In response to Prop 64, the Fontana City Council passed Ordinance 1758, which not only required an application to home grow, but that applicants pay a $411 fee, complete a criminal background check and adhere to strict rules on the areas where the plants could be cultivated, among other unusual provisions.

The ACLU and DPA are focused on ensuring that people are able to exercise the now-legal California right to grow personal use cannabis, DPA attorney Tamar Todd told Cannabis Wire.

“Whether an individual has the right to use … needs to be enforced statewide and not locality by locality,” Todd said.

But because cannabis remains illegal under federal law, some local California officials feel justified in cracking down or setting tight boundaries, said Julie Hamill, an attorney who represents cannabis businesses with the Seattle-based law firm Harris Bricken.

Nearly three-quarters of California localities ban all outdoor cultivation, and around 70 cities require residents to either register or get permits to grow for personal use, according to a report by the Southern California News Group, which analyzed local ordinances in the state’s 482 cities and 58 counties. Most of the state’s smaller cities — 431 of them — ban both recreational and medical cannabis sales, according to the database.

“[Local officials] are chest pounding, ‘We’re going to enforce the law and this is illegal!’” Hamill told Cannabis Wire. “In Hermosa Beach, you have 71% of people who voted for the ballot initiative but they don’t want these people in their backyard. For a lot of elected officials it’s a scary position to take to be progressive on it.”

Hermosa Beach, a beach city in Los Angeles County, lodged its official opposition to Prop 64 in a letter on the city’s website, citing the potential for youth to have greater access to the drug and worries about impaired drivers leading to marijuana-related driving deaths. “These risks are too severe to ignore,” Hermosa Beach then-Mayor Hany Fangary wrote.

The surrounding county of San Bernardino has made its opposition to legalized cannabis loud and clear, too. The statewide ballot proposals that legalized medical marijuana in 1996 and Prop 64’s passage in 2016 “does not require California cities and counties to allow commercial cannabis activity,” the county posted on its website.

Other cities like Oakland and San Francisco are going the opposite direction, part of a rise in efforts aimed at ameliorating the effects of cannabis prohibition, either by giving priority cannabis business licenses to those affected or clearing their convictions. Conversely, San Bernardino District Attorney Mike Ramos, an opponent of Prop 64, has said he would not automatically remove cannabis-related convictions from offenders’ records, according to the Daily Press.

The joint ACLU and DPA lawsuit, which is scheduled to be heard on September 14 in San Bernardino Superior Court, alleges the city’s true intention was to make the requirements so onerous that it would act as an effective ban.

“They want access to what is now legal,” Todd said of the lawsuit’s intent to rectify the drug war’s inequitable effect on minorities for crimes now considered to be much more socially acceptable. Onerous regulations, Todd said, creates “pockets where the harms of criminalization continue to exist.”

A Fontana city spokesperson declined to comment on the lawsuit and Fontana city Mayor Acquanetta Warren did not respond to an email. The city acted “fully within the duty, authority, or rights given to it,” the city said in a response to the suit filed with the court, but attorneys didn’t elaborate on why officials felt the regulations were necessary. The city has not received any permit applications for indoor cultivation, city spokesperson Martha Guzman-Hurtado told Cannabis Wire in an email.

City Council members worried Fontana didn’t have the resources to regulate personal cultivation and that people who grow should be regulated like businesses, according to an account of the initial 2017 debate in the Fontana Daily Herald. Mayor Warren told the OCRegister the ordinance was aimed at safety concerns. “This town has been a town of safety,” she said. “And we’re trying with this initiative to make sure that we keep our residents safe – particularly our young people.”

The ACLU believes the safety requirements aren’t reasonable. “What Fontana did was a very clear example of what local governments can’t do,” ACLU attorney Bill Freeman told Cannabis Wire. “It’s a good place to make the point that local efforts to prevent personal cultivation are improper.”

The ordinance “requires applicants to make self-incriminating statements in their permit applications, statements that admit to a violation of federal law and that federal authorities could easily obtain,” the ACLU and DPA lawsuit says. “It also requires citizens to submit to (and pay for) a warrantless search of their homes by government agents … Under the terms of the Ordinance, a resident of the City cannot grow six marijuana plants—an activity the State has declared to be lawful—if he or she, for example, owes a library fine, fails to update a pet license, or has unpaid parking tickets.”

Another lawsuit filed against the city of Colton, located less than 10 miles from Fontana, also takes aim at the city’s ordinance, which requires a permit for indoor cultivation — and where officials aren’t accepting any new applications.

The city’s permit requirements were taken down recently, because the city’s initial application period from March 1 to April 30 has expired, Mark Tomich, director of Colton’s development services, wrote in an email to Cannabis Wire. The city didn’t receive any permit applications during that time. A City Council subcommittee is studying the issue and plans to recommend changes to the process, he said. City Manager Bill Smith declined to comment on the pending lawsuit.

That case is scheduled to be heard October 26, according to court records.

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