Cities push back against Prop. 64 with strict rules on growing marijuana at home

California law now says every resident 21 or older has a right to grow up to six marijuana plants for personal use.

The law also says cities or counties can “reasonably regulate” homegrown pot.

Those two rules are turning the state’s recently passed marijuana law, Proposition 64, into nothing less than a civil rights battle zone.

In the three months since the law took effect, a growing number of cities have instituted rules for in-home cultivation that test the limits of what’s considered “reasonable.” Often citing safety concerns, new and proposed ordinances, among other things, block outdoor cannabis gardens, impose expensive permits and ban (for now) even a single homegrown plant.

In Montebello, near Los Angeles, residents who want to grow marijuana for personal use may do so only if they don’t owe any taxes. They also must allow city workers to periodically inspect their homes.

In Indian Wells, close to Palm Springs, aspiring home growers must first pay for a background check to prove they haven’t been convicted of a felony drug violation in the previous five years. Plus, the city has created specific rules on which rooms can and can’t be used for in-home marijuana cultivation.

And in the Inland Empire city of Fontana, renters have to get a notarized OK from their landlord before they can grow a marijuana plant. They also have to fork over a permit fee of $411.

“This is overreach,” said Thomas Abouriali, a Fontana resident opposed to the policy his city council members recently passed. “They don’t like Prop. 64, so they definitely want to restrict this as much as possible.”

In some ways, Prop. 64 is deliberately vague. The measure gives local governments the right to ban outdoor marijuana gardens, but beyond that – partly as a compromise to maintain support from marijuana activists while warding off opposition from cities wary of the measure – it offers few details as to how far cities and counties can go in regulating personal gardens. The one firm rule is that local governments can’t “completely prohibit” adults from growing six indoor plants.

Richard Miadich, a Sacramento attorney who helped draft Prop. 64, says local governments have a right to control personal cultivation by crafting regulations that they feel will protect the well-being of all residents. But he also says cities and counties invite legal challenges if they pass regulations so onerous that they result in a “de facto ban,” such as requiring residents to pay massive fees.

Thomas Abouriali speaks to the Fontana City Council on Jan. 24.

Abouriali argues his city’s $411 fee is exactly that. He says it puts the concept of growing pot out of reach for some residents, and adds that he believes other elements of Fontana’s permit program are intended to discourage some people from complying.

“I don’t like the fact that you have to give up your privacy and say the city can come in and inspect your home in order to do what state law says you have the right to do,” he said. “It’s a very slippery slope, in my opinion.”

Given the vague language in Prop. 64, where the line between “reasonable” and “onerous” regulations is drawn – and whether some cities are already crossing that line – are questions that probably will be settled in courts in months and years to come.

Temporary bans

Two cities near Sacramento have voted in perhaps the harshest policies in the state – rules that are already triggering talks of lawsuits.

Leaders in the cities of Galt and Elk Grove say they believe they acted within the law when they voted to block all indoor growing under “urgency” moratoriums that will run through December.

“Prop. 64 does provide that a city cannot completely prohibit up to six plants within a private residence,” acknowledged Elk Grove City Attorney John Hobbs. “But this moratorium only temporarily disallows that type of use while the issue is being studied.”

The city plans to use the next 10 months to study a slew of proposed rules on in-home cultivation. Among them: a requirement that plants not be grown in any room with a carpet, that growers agree to allow periodic home inspections and that would-be growers apply for permits directly from the chief of police.

Jackie McGowan, a cannabis business licensing consultant, told the Elk Grove City Council she planned to file a lawsuit over the policy with help from Long Beach attorney Matthew Pappas.

“You cannot tell people that they cannot grow six plants,” McGowan said. “You are not allowed to ban indoor cultivation, and so you are actually already in violation of the law.”

Hobbs stood by his city’s moratorium, citing a different state law that allows local governments to pass interim ordinances if they feel the rules are necessary to protect the safety, health and welfare of the city.

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Galt City Attorney Steven Rudolph said he believes the city has a window of time under Prop. 64 to craft controls on home grows.

“The city has the ability to enact regulations,” Rudolph said. “We obviously didn’t have those regulations ready to go on Nov. 9. So my opinion is we have a reasonable period of time in which to maintain the status quo – which is no cultivation – so we can come up with those regulations and put them in place.”

Attorney Joy Haviland with the Drug Policy Alliance, which backed Prop. 64, said she believes temporary bans in Galt and Elk Grove are clear violations of the new state law, and that the moratoriums will likely lead to litigation.

Permits required

The cities of Aliso Viejo and San Juan Capistrano voted more than a month before Prop. 64 to require residents who want to grow six plants indoors to first get permits from the city.

“We all are opposed to Prop. 64, and this is pretty much the most forceful thing we can do in response,” San Juan Capistrano Councilman Derek Reeve said before voting in favor of his city’s policy.

Ellen Komp, deputy director of the California NORML, wrote a letter to San Juan Capistrano council members in response.

“Requiring a permit for someone to grow a personal marijuana garden, and making it a potential misdemeanor with a six-month sentence to grow without one, is rather like a law giving women the right to vote – but requiring them to get a permission slip from their husbands, or else face jail time,” Komp wrote.

Both O.C. cities are finalizing details of their permit programs, city spokesmen said, including how much to charge for the permits.

Council members in Fillmore, in Ventura County, briefly contemplated city staff’s recommendation to impose a marijuana cultivation permit fee of $737, but instead asked staff to come back Feb. 14 with a less-expensive plan.

Manuel Minjares, a councilman in Fillmore, said he believed the high fee would lead to people simply ignoring the permit process, according to a story in the Ventura County Star. “They’re going to grow without a permit and take their chances.”

The city council for San Jacinto, in Riverside County, voted Tuesday night to approve a restrictive permitting program similar to the ones set recently in Fontana and Indian Wells. (Read the full text of Indian Wells’ rules for homegrows here: Indian Wells permit program)

A few cities have opted not to require permits, but to instead write ordinances that set rules for anyone who wants to grow recreational cannabis at home. San Clemente and the Bay Area city of Martinez say aspiring cultivators must first get written permission from landlords, for example, and install ventilation systems appropriate for indoor cultivation.

“These are temporary ordinances to give the city time to study the impacts of the legislation and how it impacts our community,” said Manjit Sappal, chief of police for the Martinez Police Department.

Dozens more cities up and down the state – from Palo Alto to Poway, San Jose to Santa Ana – are, at least temporarily, banning outdoor cultivation.

City leaders have said outdoor plants tempt people to hop fences and snatch weed. They also believe outdoor cultivation makes it tougher to keep marijuana away from children, and that it sometimes creates odors that others find unpleasant.

Critics of outdoor bans point out that in-home cultivation can pose a bigger threat to public safety because lighting and ventilation systems can pose fire risks and other problems. It’s also generally pricier and more labor intensive to maintain an indoor marijuana garden, putting an additional burden on residents who want to exercise their rights under Prop. 64.

Challenges coming

Until the courts weigh in, Haviland said California cities that don’t welcome pot are likely to continue testing the waters in terms of what’s considered a “reasonable” regulation. But she said her agency has a vested interest in making sure cities don’t undermine the freedoms granted by Prop. 64.

Along with cities that have temporarily banned all cultivation, Haviland said she’s particularly concerned with similar policies popping up in places such as Fontana that are insisting people with prior drug convictions or overdue city fees aren’t eligible to get permits to grow at home.

“The law says you can’t prohibit persons from engaging in this behavior, and some cities are choosing to wholly exclude a category of people, which is not permitted under state law,” she said.

Fontana Mayor Acquanetta Warren acknowledged her city’s permitting process isn’t easy, but she said it’s aimed at protecting all residents.

“This town has been a town of safety. And we’re trying with this initiative to make sure that we keep our residents safe – particularly our young people,” she said.

Aside from inviting potential legal challenges, both marijuana rights advocates and some city leaders have questioned the point of creating permit programs and rules for home grows that are so difficult to enforce.

That’s why Montebello Councilman Bill Molinari said he voted against his city’s permit program.

“There’s no practical way to enforce it,” Molinari said.

“Suppose I put six marijuana plants in my living room and I don’t go to the city for a permit, who will know?” he asked. “It’s an exercise in frustration because you’re passing something you can’t enforce.”

So far, no one has applied for a $141 permit to grow marijuana at home in Indian Wells, a rule that’s now been on the books for two months, City Manager Wade McKinney said. Same goes for other cities with permit programs, including San Juan Capistrano and Aliso Viejo.

That didn’t surprise Abouriali, who said he’s heard from people fearful over cities having a roster of permits, identifying every person who’s growing marijuana at home.

“I think people are just going to bypass that process,” he said. “The reality is most people just want to be left alone to do this in the comfort of their homes.”

Staff writer Mike Sprague contributed to this report.