In a battle between a southern California cannabis consumer and city regulators, the consumer has won. On Friday, a judge struck down the bulk of a local ordinance that would’ve sharply limited indoor personal cultivation in a suit waged by the American Civil Liberties Union and Drug Policy Alliance against Fontana.
During a hearing in early October, attorneys with the ACLU and the Drug Policy Alliance requested that a court in San Bernardino County order the city of Fontana to cease what they deemed to be illegal behavior. The separation of powers doctrine, they argued, calls on courts to invalidate local legislation that conflicts with California’s general law.
After weeks of deliberation, Judge David Cohn ruled in favor of the plaintiff. “The issue in this case,” he said, “is how far a city can restrict the category of persons who are entitled to grow marijuana plants and the circumstances under which they may grow the plants without running afoul of the [state’s] requirement that regulations be reasonable. The City of Fontana has gone too far.”
Though the city of Fontana is a small locality in California, Judge Cohn’s ruling has significant implications for the rest of the state and, perhaps, even others that have legalized the recreational use of cannabis. As Cannabis Wire previously reported, local officials throughout the country have undercut access to legal cannabis through municipal code. In California, the majority of localities have banned outdoor cultivation, and dozens of cities require their residents to either register or obtain permits for personal use.
Hundreds of localities, including Fontana, have banned both adult-use and medical cannabis sales. For these residents, indoor cultivation is often the only legal way for them to secure cannabis locally.
Under the Adult Use of Marijuana Act (AUMA), California residents are allowed to grow up to six plants in a private residence. However, because the legislation allows local governments to regulate home grows, how that plays out from locality to locality varies widely.
For instance, a Los Angeles resident who wishes to grow cannabis for personal use need only be twenty-one, go to a licensed cannabis retailer, buy some seeds and plant them at home. (Renters, of course, may subject to their landlord’s policies.)
But in Fontana, a city of about 200,000 residents located some 60 miles to the east, those who wished to partake in indoor cultivation were obligated to undergo a far more complicated process.
First, they needed a permit. However, in order to apply for it, residents could not have any pending code enforcement actions or outstanding payments due the city (like an unpaid parking ticket). They also couldn’t have any felony convictions for the possession of a controlled substance within the last five years.
If they met the requirements, Fontana residents then had to pay for a Live Scan of their fingerprints (anywhere from $11 to $70) and then another $25 for the California Department of Justice to review their record. If they’re renters, they also needed to provide a signed, notarized affidavit to the city, in which their landlords granted permission for cannabis cultivation on the property.
Next, applicants had to pay a $411 fee and agree to an inspection of their home by a city employee tasked with ensuring that all utilities in the house or apartment are up to code. Upon receiving the permit, Fontana residents had to pay a $253 renewal fee every year.
Mike Harris, a retired ironworker and registered nurse, has lived in Fontana since 1987. Following his decades-long and physically demanding careers, he was injured several times and required significant medical procedures, including a prosthetic hip and shoulder reconstruction. In 2010, one of his physicians recommended that he try cannabis to for his pain and arthritis, so he got a medical-marijuana identification card.
The plant, Harris told Cannabis Wire, proved to have fewer side effects than any other treatment he tried. His experience compelled him to see cannabis in a different light, and he went on to join The Human Solution International, an organization self-described as “focused on restoring the rights of those negatively affected by cannabis prohibition.”
When AUMA legalized personal cultivation of cannabis in 2016, Harris thought it would be both convenient and economical for him to grow his own plants. He did not do so, however, due to the restrictive regulations adopted by the city. In fact, to date, no Fontana resident has applied for a Residential Indoor Marijuana Cultivation permit.
In its suit on Harris’s behalf, the ACLU and Drug Policy Alliance pointed out that state law, unlike the city of Fontana, does not bar those with felony convictions from growing six cannabis plants for personal use. Moreover, under Fontana’s ordinance, applicants who owed a library fine or failed to update a pet license would be denied a permit. Additionally, they argued, residents who could not afford to pay a $411 fee, plus the cost of paperwork with the Department of Justice, were also prevented from cultivating, as were residents who could not dedicate an entirely separate room in their home to six or fewer plants. (This includes renters living in studios, single rooms, or one-bedroom apartments.)
The ACLU and Drug Policy Alliance also argued that the permit and renewal fees for cultivation, which cost $411.12 and $253.00, respectively, were “out of proportion to other, smaller fees imposed in connection with far more hazardous activities.” For instance, every “High Hazard Permit” issued by the City of Fontana costs less than $400, including annual permit fee for “Explosives” ($297) and “Radioactive Material” ($358). And to obtain a gun dealer’s license, they underscored, city residents pay $123 for the initial application and $75 for the renewal. They also pay much less—$285 for the initial permit and $25 for the renewal—to obtain the city’s permission to carry a concealed weapon.
The pre-permit inspection, they added, is tantamount to a warrantless and, therefore, unconstitutional search. Fontana’s approach to regulating personal cannabis cultivation, they said, is not based on the reality of what is required to grow six plants, but rather on risks relating to large-scale, illegal cultivation of hundreds of plants. Additionally, alcohol is also intoxicating and cannot be sold to minors, yet the city has not required that residents store their liquor in a single-purpose, locked room. Other provisions of the ordinance, they concluded, are “nonsensical,” such as restricting the use of carbon dioxide and oxygen for growing cannabis.
In court, Fontana’s attorneys contended that preventing “individuals [who] are not compliant with the city and owe the city money” from growing six cannabis plants was reasonable because “these are the type of individuals most likely to flaunt the requirements.” They also insisted that a separate, locked room is necessary to protect minors from the plants.
“People on the other side may want this unfettered access, but the kids go wherever they want,” said Fontana lawyer Jeffrey Dunn. If the court strikes down the ordinance, he warned, “kids [will be able to] play with [cannabis], touch it—whatever they want with it.”
Dunn also said that the signed affidavit was necessary “so we don’t have landlords who think they are leasing to an individual only to find out the individual is going to create a growhouse there.”
“How does six plants equal a growhouse?” asked Judge Cohn during the hearing.
“If for no other reason, your honor,” said Dunn, “that this is still an illegal activity under federal law.”
Judge Cohn also took issue with the city’s application fees. “You’ve got many residents of Fontana who are living at or below the poverty line,” he said. “The average resident in Fontana doesn’t have the financial wherewithal to do that and is deprived of the ability to grow six plants.”
The city’s attorneys explained that the application feeswere based on estimated costs associated with performing the pre-permit inspection and related services. Judge Cohn suggested fee waivers for applicants, much like the court provides to people who cannot afford to pay filing fees for litigation. Dunn resisted. “We’re talking about two different types of activities here,” he said. “The one the court is addressing is the constitutional right to come to the court and to seek redress . . . [Personal cultivation] is something different.”
Throughout the hearing, Judge Cohn asked the defense to demonstrate the nexus between the provisions in Fontana’s ordinance and the cultivation of cannabis, such as plumbing being up to code.
“Indoor cultivation is going to use electricity, it’s going to use plumbing,” said Dunn, before adding: “I just don’t understand how there could be a concern with this ordinance, or any other ordinance, that there’s a provision that forces people to be in compliance with plumbing and the electrical and other utility approvals. . . My own personal opinion is that they just put that in there because it should be in there.’”
“So, in your view,” responded Judge Cohn, “it doesn’t have to have anything to do with the cultivation of marijuana. You can put anything in this ordinance that regulates health and safety as a condition of getting a permit for marijuana, even if it has no connection?”
“Absolutely,” said Dunn. “I make no hesitation. You bet they do. They can do that in the absence of any connection.”
Fontana’s lawyers repeatedly pointed to federal prohibition during the hearing, arguing that this preempts state law. (This isn’t a first: just last month, an Oregon judge tossed a lawsuit from Josephine County, which tried to argue that federal law banning cannabis preempted state law allowing sales.) Judge Cohn, however, adhered to California state law, which stipulates that though cities and counties can regulate personal indoor cultivation, it cannot completely prohibit it.
“These restrictions,” he wrote, “on who may cultivate cannabis for personal use in Fontana are arbitrary and capricious because they disallow certain persons from doing what state law specifically allows them to do.”
“Very significantly,” said Judge Cohn during the hearing, the ordinance “excludes everyone who does not have a room in their house that they are able to devote exclusively to this purpose . . . I don’t know anyone who’s got an extra room that they don’t need for some purpose. I’m also suspicious of that justification, given that the city hasn’t taken other action with respect to activities that are more dangerous than growing six marijuana plants.”
Fontana, he added, is free to draft another, “less onerous” ordinance.