As California and the nation drift toward legalization of recreational marijuana, it might seem safe to assume that things would be getting easier for medical marijuana patients who grow their own. With more and more commercial greenhouses and fields filling up with intoxicating buds, why would anyone worry about backyard gardens where medicinal herbs share space with tomato seedlings and begonia cuttings?
For reasons as confounding as a county zoning manual, Monterey County is on the verge of making it significantly more difficult for medical marijuana users to grow their own.
Today, most do-it-yourselfers simply cultivate an obscure corner of their property and post copies of their medical marijuana cards on a fence nearby in case the cops come traipsing through.
Soon, if the county bureaucrats, politicos and badge wearers have their way, the process will include a formal application process, permits, annual renewals, inspections, fees and more fees.
Although voters have made clear almost everywhere that they are comfortable with decriminalizing much of what goes on in the world of pot, the Monterey County supervisors seem intent on “recriminalizing” things. Violation of any of numerous new regulations, including purely paperwork matters and the labeling of fertilizers and other planting materials, would be deemed misdemeanors – crimes, potentially punishable by jail terms.
The supervisors have lumped personal gardens together with proposed new rules for commercial cultivation of medical marijuana – rules strongly influenced by the strong possibility that California voters will approve a November ballot measure legalizing recreational use – but with numerous strings and taxes attached to cultivation and distribution.
The public’s attention has mostly been focused on the proposed local rules for commercial operations, a topic ripe for scrutiny given the recent rush by investment groups and others to buy up property and especially greenhouses and the decision by the county to appoint supervisors John Phillips and Dave Potter as the ad hoc committee in charge of working up the new regulations. The roles of Phillips and Potter invite examination because Phillips is so closely tied to agribusiness already and Potter, who leaves office at year’s end, is a shrewd figure who has made a career of mixing personal and professional interests.
Among the most interesting aspects of the county’s proposed regulations for commercial grows that the required permits would go only to those who already have a greenhouse. So unless you saw this coming, unless you had friends in the right places and a way to receive some off-the-record promises from the powers that be, you’re too late for the marijuana train.
But back to the backyard. The county hasn’t set the fee yet for applying for a medical marijuana growing permit but the expectation is somewhere around $150 for an annual permit. And $150 a year later, and so on. Some think it will be much higher.
The good news for medical marijuana users is that the county would allow gardens larger than what are current allowed. Gardens are now limited to six female plants. Under the proposed county rule, gardens could be as large as 100 square feet.
Little else in the 13-page proposal amounts to good news.
The garden would have to be at least 30 feet from the property line, which is fine on large lots but not on many urban parcels. The plants could not be visible from off the property or from the neighboring properties and “no cannabis odors shall be detectable from offsite…”
Retired defense lawyer Richard Rosen says county’s proposed rules are “nuts.”
The garden also would have to be protected by a locked fence capable of keeping out any potential intruders.
Permit holders would be required to submit to random and warrantless inspections of their gardens
The proposed ordinance hasn’t attracted any organized opposition but it has rankled one medical marijuana user who is especially well equipped to dissect its provisions. He’s Richard Rosen, one of the region’s most successful defense lawyers, who has represented many marijuana growers large and small. Rosen is a cancer patient who has retired from his law practice and now spends much of his time perfecting his blues harmonica technique.
On a lovely Carmel Valley afternoon, he sat on his front porch and went through the proposed regulations line by line. He found little to like.
“Ordinance 7.95 makes it as difficult as possible to get a personal grow permit,” he said.
Rosen says California law enforcement groups are strenuously opposed to relaxing the marijuana laws, partly because they spent much of the last several decades so focused on trying to eradicate pot. In rural counties such as Monterey, the biggest and most exciting law enforcement operations were the annual marijuana raids carried out by teams of state and local agents, using airplanes and helicopters to spot the groves of Carmel Valley and Big Sur and then sending in deputies with machetes to mow down the crops.
“It became engrained in them that marijuana growers were the enemy,” Rosen said, and they aren’t ready to move on.
The California Narcotics Officers Association is among those leading opposition to the pro-legalization ballot measure in the fall. It routinely conducts seminars on detecting and disrupting marijuana operations, including medical marijuana crops. It has labeled medical marijuana as a fraud.
Despite softening of the medical marijuana rules, and the move toward legalized pot, Rosen says the Monterey County Sheriff’s Department and other agencies aren’t trapped in the 60s. In recent years, he said, he represented several people who were cited for marijuana possession despite having valid medical marijuana prescription cards on them. The standard response from the citing officer, he said, was “We don’t care.” Invariably, Rosen says he was able to get the citation wiped from the record and have the pot returned.
Theoretically, much of the proposed county ordinance is driven by public safety concerns but Rosen says that’s bogus.
“They say they don’t want people coming in and stealing the pot, but there is no rule that I have to put a locked fence around my car or my lawn mower,” he said.
“And why keep it under lock and key while it’s growing but not while I’m smoking it. Do I have to lock up my painkillers?”
The lawyer said it makes no sense that the county requires special labeling fertilizers and other cultivation-related products “but you can spray Round-Up anywhere you want and they don’t do anything about.”
County officials say water conservation is one rationale for the proposed rules, though the regulations are silent on the subject.
Rosen said county officials say they also are worried about backyard gardens eroding the character of neighborhoods though they cite no examples. Commercial operations certainly have had impacts, negative ones, on numerous neighborhoods. Some areas in Denver have been blighted by the barbed wire and other security measures that accompany commercial groves. But, in Rosen’s view, there is no support for the assertion that small, personal-used gardens will harm anyone.
“Citing ‘neighborood characteristics’ sounds like code for we don’t want you to do it.”
Rosen said he considered leading an effort to make the rules more reasonable. “But I spent the last 40 years fighting with people and now I want to harmonize with them. I don’t want to go to Salinas and get up before the board and get 60 seconds to talk to people who have already made up their minds.”
Another medical marijuana patient, also in Carmel Valley, says he has successfully cultivated a couple of plants over the past decade but finds it much easier to buy through a dispensary such as the one that opened recently in Del Rey Oaks.
“Of course, I can afford to go that route but there are a lot of people who can’t, people who can barely get through a day without some help, and now are counting on the goodness of friends and neighbors. They’re gonna go stand in line for a permit and invite the sheriff’s people to come inspect their yards? I don’t think so.”
This fellow asked not to be named “because I’m pretty much paranoid on a good day.” He said the idea of a big money business being regulated by local elected officials “scares me to death.”
“I’d love to be able to grow my own and even to experiment with varieties,” he said, ” but I’m nervous enough as it is needing to sometimes take a very small supply somewhere in the car. Until I know law enforcement’s totally out of the equation, I don’t want to put myself in position to be handcuffed and hogtied. But if others speak out against these silly rules, I’ll certainly add my voice.”
Here’s a county staff report on the overall marijuana regulation effort in Monterey County. Cities in the county are adopting their own rules. Attachment A – Discussion