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Fresno’s Criminalization|of Pot Struck Down

FRESNO, Calif. (CN) - Citing state protections for marijuana cultivation, a California appeals court struck down Fresno County's criminalization of marijuana growing.

Adopted in 2014 and amended this year, Fresno's law prohibits the cultivation of medical marijuana and marijuana dispensaries in all zoning districts, and classifies violations of the ordinance as both public nuisances and misdemeanors.

The ordinance also limits the use of medical marijuana to qualified medical patients at their homes.

Diana Kirby, an amputee living in Fresno who is allergic to pain medications, challenged the county's law as unconstitutional.

Kirby lost her left leg in a serious accident in 1972 that also took her vision in her left eye, broke her back in three places and shattered her face. She uses cannabis to manage her chronic pain, as recommended by her physician.

Though the superior court found that Fresno's law did not conflict with the Compassionate Use Act and the Medical Marijuana Program, a three-judge panel of the Fifth Appellate District found Tuesday that Kirby has a narrow cause of action challenging the validity of Fresno's classification of marijuana cultivation as a misdemeanor.

The 32-page decision finds that subsection E of the Medical Marijuana Program, codified at 11362.71 of California's Health and Safety Code, imposes an "obligation" on local officials not to arrest certain persons possessing or cultivating marijuana, and Fresno's attempt criminalize possession and cultivation is not consistent with that duty.

Given California's "extensive statutory scheme addressing crimes, defenses and immunities relating to marijuana," state Supreme Court precedent dictates that the MMP prohibits law enforcement from refusing to accept a medical marijuana identification card as protection against arrest for the possession and cultivation of specified amounts of marijuana, the court found.

"The Supreme Court's clearly expressed position is exactly the opposite of the county's view that the Supreme Court has determined that MMP does not foreclose the arrest of certain persons possessing or cultivating marijuana," Judge Donald Franson wrote for the panel.

California's prohibition of arrests clearly shows "the Legislature's intent to fully occupy the area of criminalization and decriminalization of activity directly related to marijuana," Franson said.

The panel said Fresno has little recourse to save its law from being invalidated.

Attorneys for Kirby with the Henry G. Wykowski & Associates law firm applauded the court's finding that Fresno's ordinance was "an overly broad attack" on the rights of medical marijuana patients.

"Importantly, the court determined that cultivation of medical marijuana in California could in no way be deemed a criminal act," the firm said in a statement. "As for the remainder of the court's decision, we are evaluating our client's options to further rectify the invidious effects of this ill-conceived ordinance."

While the court found Fresno's misdemeanor classification pre-empted, it rejected Kirby's challenge to the county ban on cultivation.

The CUA and MMP do not expressly restrict local government's authority over land use, the panel found.

"As to implicit restrictions, we recognize the statutory provisions contain some ambiguities, but applicable legal principles require a clear indication of the Legislature's intent to restrict local government's inherent power to regulate. The ambiguous provisions fail to provide that clear indication," Franson said.

Attorneys for Fresno did not respond to a request for comment emailed Wednesday after business hours.

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