Cities were given an object lesson of what will befall them if they continue to live by the ethos that predated the 2016 legalization of marijuana as an intoxicant throughout the Golden State.
For a century the parents, grandparents, great grandparents and great-great grandparents of the current crop of 20-somethings had to brave the risk of arrest, conviction, imprisonment and even death to smoke, use, possess, buy, transport, sell, traffic in or grow marijuana. Much to the chagrin of those who have found their comfort in alcohol while looking down with disdain and an air of moral superiority upon potheads, confident that they had the backing of the legislature, the courts, prosecutors and the police in their judgment, blowing grass is now okay. And reactionary city officials who go out of their way to stand in the way of the brave new world run the very real risk that they will cost the taxpayers and residents they represent and work for money.
Fontana’s city council and city management learned that lesson the hard way, getting slammed for $106,916 in legal fees after a judge ruled in favor of one of the city’s residents who called the city’s bluff when it sought to deny him the rights the state’s residents won at the ballot box in in 2016 with the passage of Proposition 64, California’s Adult Use of Marijuana Act.
Under Proposition 64, adults 21 and older can, both at home and in public, possess up to 28.5 grams of cannabis or up to eight grams of hashish.
Some restrictions yet apply. Smoking or eating cannabis in public, or where tobacco is banned, is prohibited. It cannot be smoked within 1,000 feet of schools, day care centers and other places where children gather. One cannot consume the substance while driving or boating, and open marijuana containers cannot be carried inside vehicles. Adults under 21 caught with more than one ounce – 28.5 grams – can be fined up to $500, and pull a six-month jail sentence.
Nevertheless, pipes, accessories and other paraphernalia used in imbibing cannabis are legal and no longer considered contraband in California. Adults can freely hand the substance around to one another, as long as they are not selling it. Selling it requires a license.
Adults 21 and older can grow up to six cannabis plants on their own premises as long as they own the property or have the property owner’s permission, and it is kept out of immediate public view. Cities have the option of banning personal outdoor cultivation but cannot stop legal age adults from growing up to half a dozen plants at any given time indoors. If more than an ounce is grown, it is legal for the cultivator to keep it on his or her property.
Fontana officials, horrified by the passage of Proposition 64, in January 2017 seized upon language in the Adult Use of Marijuana Act that related to banning outdoor gardens and being able to “reasonably regulate” indoor cultivation, undertaking to test the limit of what is “reasonable.” With city staff preparing an ordinance and the council approving it, Fontana required residents seeking to grow their own inside their home to obtain a $411 permit from the city, pay for unconstitutional background checks, bring any arrearages on overdue city fees to a close, get not just permission from their landlords if they were renters but a notarized certificate of clearance from the property owner, and agree to allow city officials to inspect their homes at any time of the city’s choosing, 24 hours a day.
Mike Harris, a Fontana resident who was represented by the American Civil Liberties Union of California and the Drug Policy Alliance, sued the city. Fontana was heartened when it drew Judge David Cohn as the arbiter of the case. In 2015, Cohn had ruled in favor of the City of Upland when it sought to delay holding a special election that a group of pro-medical marijuana activists were entitled to after they gathered the requisite number of signatures on petitions calling upon the city to hold an election to allow for the establishment of three medical dispensaries in the city’s commercial district along Route 66 near the city’s border with Los Angeles County. In a cynical manipulation of its municipal authority, the City of Upland seized upon a provision in the proposed ballot measure that called for each of the dispensary operators to pay a $70,000 yearly fee to the city to obtain licensing, and then argued that qualified as a tax, asserting that taxing proposals could not be voted upon during a special election but only during a regularly scheduled municipal election. Eager to accommodate the city, Cohn bought Upland’s specious argument, thus preventing the special election from being held, despite the advocacy of famed civil liberties attorney Roger Diamond, who represented the ballot measure petitioners. Diamond appealed Cohn’s ruling on behalf of his clients and, after a more than year-long battle, won a reversal in the Fourth District Court of Appeal, which resulted in the City of Upland having to cover Diamond’s not insubstantial legal fees.
A chastened Cohn, reversed by the Fourth District Court of Appeal in the Upland case, was no longer in the mood to violate citizens’ rights under the California Constitution in any city’s Quixotic quest to resist the State of California in the liberalization of its antiquated marijuana laws. Thus, the miracle Fontana was hoping for never materialized, and Cohn in November ruled against the City of Fontana, striking down its ordinance that virtually prohibited Fontana residents from cultivating their own personal stash, opining that “The City of Fontana has gone too far.” Cohn directed the city to redraft its ordinance in keeping with the letter and spirit of the Adult Use of Marijuana Act. Along the way, Cohn indicated that Harris was entitled to legal fees, given that he had to go to considerable expense to prevent the City of Fontana from walking all over him and his fellow pot smokers, violating their U.S. Constitutional rights to be secure in their person and effects, and their rights under the California Constitution and its attendant Proposition 64.
City of Fontana officials, as if they were smoking a joint themselves, huffed and puffed, claiming they would appeal Cohn’s ruling. In the end, recognizing that doing so would simply entail more legal fees down the road with no prospect of making their draconian ordinance stand, the City of Fontana threw in the towel, allowing the deadline by which an appeal of the decision could be made to elapse. On February 6, Cohn offered up his tally of what Harris’s lawyers are entitled to: $106,916.
It is anticipated that the Fontana City Council will consider a redrafted ordinance relating to the indoor cultivation of marijuana in residential zones.
Harris’s action against Fontana has already provoked similar challenges of marijuana-growing restrictions elsewhere, such as in Colton, where that city appears to be headed for the same drubbing in court as Fontana experienced.
-Mark Gutglueck