Aug 12 2011

California judge rules medical marijuana cultivation is not agriculture

Posted by J. Craig Canada in cultivation, distribution, law

In a ruling that could have sweeping implications, a judge in California has ruled that marijuana cultivation is not “agriculture”.

The Fresno Bee broke the story Wednesday that Tulare County Superior Court Judge Paul Vortmann ruled:

…the court finds as a matter of law that growing marijuana … is not an agricultural use of property

The Fresno Bee reports that the ruling arose from a case brought by Tulare County Counsel Kathleen Bales-Lange on behalf of The Tulare County Board of Supervisors against Foothill Growers Association medical marijuana collective which rented a building in an agricultural zone, and against the property owner.  The collective used the building to cultivate and dispense medical marijuana.

In dismissing the claim by Brandon Ormonde, representing the property owner, that the collective’s cultivation is legal because it’s in an agricultural zone, Vortmann wrote:

In this state, marijuana has never been classified as a crop or horticultural product

The Visalia Times-Delta reports:

The county ordinance, adopted in 2009, requires medical-marijuana grow sites and dispensaries to be in commercially zoned areas of the unincorporated county.

Other provisions require that growing plants has to be done in-doors, along with additional requirements that include security measures and containing the plants’ smell.

Additionally, The Times-Delta reports Foothill Growers (a collective of at least 100 medical marijuana patients) argued that since the warehouse had been used for commercial purposes in the past and the county did not take action, that they should be allowed to continue to operate.

KMPH News reports that the county sued the collective over fears of violence:

“We’ve had some serious problems in the past where these farms are growing out in the country side, and then you have shoot matches later on when the season comes to a close and it’s time to do the harvesting,” said Tulare County Supervisor Steve Worthley.

Bill Romaine, representing Foothill Growers, stated they will appeal the decision to the California 5th Circuit Court of Appeals on grounds that it violates Proposition 215 (California Health & Safety Code 11326.5) as well as SB 420 (California Health & Safety codes 11362.7-11362.9) enacted by the legislature in 2004.

It imposes undue restrictions on the medical use of marijuana by people,” he said, “more particularly in their ability to have a legitimate source of the medicine they require.

The collective was given until noon Thursday to vacate the building, which they say they have done, moving the operation elsewhere while the case is appealed.

In closing it’s article, The Fresno Bee notes that the Regulate Marijuana Like Wine Initiative:

…proposes to apply “existing agricultural taxes and regulations to marijuana” and would prohibit zoning restrictions on cultivation.

Section 1 (e) (2) of The Regulate Marijuana Like Wine Initiative states:

Existing taxes and regulations for the establishment of the farming, industry, distribution, retail sales, and wholesale transactions of agricultural crops and products shall apply to marijuana, regardless of THC level, using the grape winery industry as a model, so long as the results support these declarations, purposes and goals.

It should be noted that while the California Cannabis Hemp and Health Initiative 2012 (CCHHI2012) does not explicitly declare cannabis cultivation to be agriculture, it does state in Section I, 3:

Industrial cannabis hemp farmers, manufacturers, processors, and distributors shall not be subject to any special zoning requirement, licensing fee, or tax that is excessive, discriminatory, or prohibitive.

As a side note, the California Constitution, under Article 13 Taxation, Section 3, defines crops as property and as exempt from property tax.

Judge: Pot is not ag crop, collective must move – San Francisco Chronicle | 11 Aug 11
Pot cooperative to appeal ruling, move to another site – Visalia Times-Delta | 11 Aug 11
Tulare Co. judge: Medical marijuana not an ag crop – The Fresno Bee | 10 Aug 11
The Regulate Marijuana Like Wine Act of 2012 – California Attorney General | 1 Jun 11
The California Hemp & Health Initiative – | 13 May 10
The Compassionate Use Act of 1996 (Prop. 215) – California Secretary of State

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