By Carlos Avalos
The name Mike Harris might or might not ring a bell with most people in Fontana or its surrounding areas. To at least some of those involved in the politics of the region, Harris is known as a 13-year essential medical worker – a nurse – ex-ironworker and local Fontana resident fighting for the individual’s right to cultivate cannabis legally and constitutionally as per 2016’s Proposition 64.
After more than a century of prohibition in which those in California and elsewhere ran the risk of a prison sentence for possessing, smoking or trafficking in marijuana, Proposition 64, known as the Adult Use of Marijuana Act, was passed with 57 percent approval of California’s voters on November 8, 2016. In addition, 53.6 percent of the voters in Fontana and 52.5 percent of the voters in San Bernardino County cast ballots in favor of Proposition 64.
Proposition 64 allowed those in California who are 21 years of age or older to use marijuana for its intoxicative effect, simultaneously legalizing its possession, cultivation, and sale within certain strictures. It called for the state to regulate commercial activities related to its sale for recreational use, including the collection of a 15 percent excise tax and an additional $9.25 per ounce of flower or $2.75 per ounce of leaf. Proposition 64 required that businesses selling marijuana obtain a license from the state-level Bureau of Marijuana Control, and left up to local governments the option of requiring permits for businesses to allow on-site consumption. The proposition simultaneously prohibited shops selling marijuana from engaging in the sale or consumption of alcohol or tobacco. Under the proposition, local governments retained the option to completely ban marijuana-related businesses.
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. Like everything in life there are certain restrictions. 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 receive a six-month jail sentence.
Implements to imbibe marijuana – pipes, accessories and other paraphernalia – 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. The cultivation provision of the law allowed adults 21 and older to 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, unaccepting of the passage of Proposition 64, reacted in January 2017 by manipulating the language in the proposition related to banning outdoor gardens and being able to “reasonably regulate” indoor cultivation, undertook to test the limit of what is “reasonable” with the passage of Ordinance No. 1758. The ordinance drafted by city staff, and approved by the city council led by Acquanetta Warren essentially undermined the California Legislature and Proposition 64 within the Fontana City limits by requiring Fontana residents seeking to grow marijuana inside their own home to obtain a $411 permit from the city, pay for 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.
At that point, Mike Harris injected himself into the situation.
Previously, in early 2016, Harris told the Sentinel that it appeared as if Proposition 64 was going to make it onto the ballot, and that polling looked positive. Around the same time, the California League of Cities declared that cities which did not preemptively pass a responding ordinance would be defaulted into the state guidelines with regard to marijuana. In response, the Fontana Planning Commission put forth an ordinance laying out restrictions that would govern indoor cultivation. Harris spoke at the commission meeting against their recommendations. The city council passed the ordinance later that year after the election.
Shortly after Proposition 64 passed, Mayor Warren publicly remarked that “it disgusts me that a majority voted for it.”
Over the 2016 Christmas Holiday Harris learned from Lieutenant Commander Diane Wattles Goldstein, who was the current head of the Law Enforcement Action Partnership that the Drug Policy Alliance had plans to fight cities that were attempt to preempt the provisions of Proposition 64, and that NORML, the National Organization for the Reform of Marijuana Laws, was geared up to assist in this endeavor.
Harris introduced himself to people who had connections to the Drug Policy Alliance. After the passage of Ordinance No. 1758, he offered himself as a plaintiff in a suit challenging it. Drug Policy Alliance board members, noting that Fontana’s ordinance was as restrictive of a measure as they had yet seen, started putting together a legal team. Harris carried the banner, becoming the poster boy for marijuana use rights in Fontana. The American Civil Liberties Union jumped on board.
On June 4, 2017, Harris filed his case. He was represented by Geoffrey Yost, Anthony Beasley and Mark Berghausen of the law firm O’Melvany & Myers as well as Joy Haviland, Thesia Naido and Jolene Forman with the Drug Policy Alliance, as well as Michael Risher and William Freeman of the American Civil Liberties Union.
Through 2017 and into late 2018, court briefs were filed. In November 2018, Judge David Cohn heard the matter. He tentatively ruled in favor of Harris on just about everything, holding forth at some length about how the city went too far. Judge Cohn said that if city officials wanted to inspect the cultivation activity at Harris’s home, they would need to first obtain a warrant on the basis of probable cause to believe they would uncover evidence of a crime ahead of time. This corresponded in the main with Harris’s fundamental argument.
Harris said he is of the mind that, “Just because a private citizen engages in a legal activity, it does not mean he has to surrender his legal rights to do it.” Fontana wanted to treat folks as if they were on parole, with unchecked police power, he said.
In December 2018, the court published its finalized decision in the matter of Harris v. Fontana. Judge Cohn found that “the restrictions 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. The only restriction under the Adult Use of Marijuana Act is that a person must be at least 21 years old.”
Fontana’s ordinance excludes (1) certain felons, (2) anyone with pending code enforcement action, such as violation of a property set back requirement, (3) anyone who owes money to Fontana, such as an unpaid parking ticket, and (4) anyone who cannot obtain notarized permission of a landlord. Judge Cohn stated that these are not reasonable restrictions, because they conflict with the broad permission granted by the Adult Use of Marijuana Act.
Judge Cohn found that the ordinance also imposed other unreasonable conditions, such as restricting aspects of the physical residence where the plants may be grown to an extent that is unrelated or only tangentially related to the small amount of cannabis cultivation authorized under the Adult Use of Marijuana Act. Those restrictions in the ordinance included “Residence plumbing, electrical, and other utilities must be properly permitted (§30-7 (b).060 (B)(2). The residence must not include more than one cultivation area (§ 30-7(b).060 (b) (2). The cultivation area must be used exclusively for the marijuana, and may not be shared with any space used for sleeping, cooking, eating, bathing, or other residential activities. (§30-(b).060 (c) (1) (b). The area of cultivation must be accessible by only one lockable door. (§30-7 (B).060 (C) (2) (a). Access to the area must be restricted only to a permit holder. (§30-7 (B).060 (C) (2) (b).”
Judge Cohn prohibited Fontana from enacting Fontana Ordinance 1758 by disallowing the addition of section 30-7 b to the Fontana Municipal Code.
Harris was awarded $106,916 in legal costs.
In March, 2019, the city passed another restrictive ordinance. Harris, in the spirit of compromise, did not contest it. Time passed. After 2019 became 2020, Harris revisited the City of Fontana website and saw that the old ordinance was yet up, without the revisions specified by the court on the matter.
Harris called the city and asked for the new recreational indoor marijuana permit – “RIMP” – application, as the old one was still posted by the city. The city emailed it to Harris and he discovered the only change to it was one that made it more restrictive. The new version added wording not previously contained in the March 2019 ordinance. The city was constantly layering into its its restrictions new and different angles, and it was less than clear whether those were ones considered and approved during an open session of the city council in which the rules were ratified by a vote or whether the council had simply given staff silent permission to impose rules at its own discretion. What Harris learned was that the city was requiring home inspections upon renewals. The city was once again in violation of the U.S. Constitution and California Constitution, and violating the terms of Judge Cohn’s ruling.
Harris contacted O’Melveny & Myers. In July 2019, the firm sent the city a demand letter to comply with the court’s ruling. Fontana did not respond, but instead removed the old stricken ordinance from its website and put up the new one.
A few weeks later three Fontana police officers knocked on Harris’s door with a report of a car parked in front of his house, which was not his. Harris found this odd because he was the only one who had parked in that spot for about 30 years. The officer insisted there was a report and asked Harris if he had any African American neighbors. This was jarring, raising Harris’s suspicion that the officers were searching for a pretext to enter his home.
On December 21, 2020, at the height of the COVID-19 pandemic, another Fontana police officer, without a mask, knocked on Harris’s door. The officer said he was there to carry out a welfare check on one of Harris’s in-laws who had not lived there for over a year. Harris answered the officer’s questions but was adamant the person sought did not live there. The officer left and spoke with an officer in another unit, which was parked side-by-side with the vehicle of the officer who had come to Harris’s door. A third officer in a third patrol unit rolled up, and it appeared as if the three were on the brink of seeking to enforce the home inspection clause by forcing their way into Harris’s home, but the three departed afterward, with no further action.
The city clerk’s office responded to research inquiries seeking the city’s current permitting process for personal, non-commercial marijuana cultivation by saying that the city was going to remove the inspection clause pursuant to pending action by the planning commission, which was in the process of formulating new regulations, and then the council would vote on it in January and February of 2021. Harris and his legal team endeavored to get on the record the July 2019 go-round involving the demand letter, and the city’s effort to bypass Judge Cohn’s ruling with the creation of what the city calls “form based codes,” two weeks after the city council passed the last RIMP, the recreational indoor marijuana permit process.
Harris told the Sentinel that it appears the city is seeking to effectively remain out of compliance with the law by burying the basis for its unconstitutional acts in a 600-page document it then uses as its authority to carry out the warrantless searches. He said he believed the city is in contempt of court by violating Judge Cohn’s ruling.
The manner in which Fontana City Attorney Ruben Duran is enabling the city council in this action is curious. Duran’s most immediate previous assignment as a city attorney was in 2018 when he was serving as city attorney in Adelanto, at which time a three-member majority of the Adelanto City Council was intent on facilitating the industrial production of cannabis-based products, the large-scale cultivation of marijuana and the commercial sale of the substance and its derivatives. Functioning in the Adelanto context, Duran sought to enable the council majority’s pro-cannabis agenda, in certain cases stretching the law unto breaking to do so. Functioning in Fontana, Duran has now moved in a diametrically opposite direction, seeking to enable the Fontana City Council in its effort to restrict the legal availability of marijuana, likewise skirting the law.
Meanwhile, the Fontana City Council, still abiding by the pre-2016 societal ethos before the passage of the Adult Use of Marijuana Act, is intent to use or misuse its civil authority, calculating that in most cases, common citizens will not go to the trouble or expense of challenging its action. That calculation appears to allow for the existence of such residents as Harris, ones who are willing to challenge the city’s policy, and in such cases when a legal challenge is made, the city appears willing to bear the cost that entails, including paying its own attorney, Duran and his law firm, Best Best & Krieger, as well as paying the legal fees of those such as Harris willing to make that challenge, using taxpayer funds to do so. Such is the cost, according to Mayor Warren, of combating the ill social effect brought on by the “disgusting” consensus of state, county and Fontana voters in passing Proposition 64.
By Carlos Avalos