- Posted by Ryan Reaves
- On July 26, 2017
- adult use, cannabis, Commercial, cultivation, Medical, personal use, recreational, sutter, tehama
As was established under AUMA or the Adult Use of Marijuana Act, and reaffirmed in SB94: The Medicinal and Adult Use of Cannabis Regulation and Safety Act (MAUCRSA), adults 21 and over in the State of California can legally grow six (6) Cannabis plants for personal use and consumption. This was and remains to be groundbreaking legislation. Hobbyists, green thumbs, those with medical needs, and others who may still be unable to benefit from safe access where they live, can grow and harvest Cannabis at home without fear of legal recourse. However, cities and counties that are less Cannabis friendly have many opportunities to create local policies which can make it difficult and costly for individuals to grow at home for non-commercial purposes.
Let’s explore language in MAUCRSA that gives cities and counties the power to do this:
|California Health and Safety Code Section 11362.1:
(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
(1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of cannabis not in the form of concentrated cannabis;
(3) Possess, plant, cultivate, harvest, dry, or process not more than six living cannabis plants and possess the cannabis produced by the plants;
(c) Cannabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.
(Listed above are only the relevant sections of the H&S code. Some sections are omitted.)
Section 11362 of the Health & Safety Code makes it legal for any adult over the age of 21 to cultivate six (6) plants for personal consumption and to be in possession of Cannabis, with specific limitations, without fear of detention, search, or arrest by law enforcement.
The next section of the Health and Safety Code expands on the restrictions for personal cultivation:
|11362.2. (a) Personal cultivation of cannabis under paragraph (3) of subdivision (a) of Section 11362.1 is subject to the following restrictions:
(1) A person shall plant, cultivate, harvest, dry, or process plants in accordance with local ordinances, if any, adopted in accordance with subdivision (b).
(2) The living plants and any cannabis produced by the plants in excess of 28.5 grams are kept within the person’s private residence, or upon the grounds of that private residence (e.g., in an outdoor garden area), are in a locked space, and are not visible by normal unaided vision from a public place.
(3) Not more than six living plants may be planted, cultivated, harvested, dried, or processed within a single private residence, or upon the grounds of that private residence, at one time.
(b) (1) A city, county, or city and county may enact and enforce reasonable regulations to regulate the actions and conduct in paragraph (3) of subdivision (a) of Section 11362.1.
(2) Notwithstanding paragraph (1), a city, county, or city and county shall not completely prohibit persons engaging in the actions and conduct under paragraph (3) of subdivision (a) of Section 11362.1 inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure.
(3) Notwithstanding paragraph (3) of subdivision (a) of Section 11362.1, a city, county, or city and county may completely prohibit persons from engaging in actions and conduct under paragraph (3) of subdivision (a) of Section 11362.1 outdoors upon the grounds of a private residence.
(4) Paragraph (3) shall become inoperative upon a determination by the California Attorney General that adult use of cannabis is lawful in the State of California under federal law, and an act taken by a city, county, or city and county under paragraph (3) is unenforceable upon the date of that determination by the Attorney General.
(5) For purposes of this section, “private residence” means a house, an apartment unit, a mobile home, or other similar dwelling.
In summary, until federal law changes – and cannabis is no longer a Schedule 1 drug – local governments can only ban personal outdoor cultivation. Local governments can also make it so that cultivation within a private residence can violate local municipal codes, leaving any individual seeking to grow their 6 plants with only one option: “inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure.”
Here’s where it gets interesting. County and city governments can expand on the local code definition of an “accessory structure.” Rather than simply allow people to grow in an unattached garage, shed, or outdoors enclosed by a fence, counties like Tehama and Sutter in northern California will require that the accessory structure is fully permitted and registered as a cultivation site before a resident can cultivate for personal consumption. In other words, if you are a property owner in a city or county that requires a permitted “accessory structure” for personal cultivation, then you can only grow your 6 plants at your private residence if they are housed in a complete separate structure built to code and permitted specifically for that purpose.
|Tehama County Code Section 9.06.035:
(A) The outdoor cultivation of marijuana, in any amount or quantity, is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this chapter.
(B) The cultivation of more than six marijuana plants on any premises is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this chapter. The foregoing limitation shall be imposed regardless of the number of persons residing at the premises or participating directly or indirectly in the cultivation. Further, this limitation shall be imposed notwithstanding any assertion that the person(s) cultivating marijuana are the primary caregiver(s) for qualified patients or that such person(s) are collectively or cooperatively cultivating marijuana.
(D) Except as provided in a Waiver granted in accordance with subdivision (F), the cultivation of marijuana, in any amount or quantity, within a residence or any other structure used or intended for human occupancy is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this chapter.
(E) Except as provided in a Waiver granted in accordance with subdivision (F), the cultivation of marijuana, in any amount or quantity, upon any premises is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this chapter, unless all of the following conditions are satisfied:
1. The cultivation of marijuana must be conducted within a detached fully enclosed secure accessory structure conforming to the following standards:
a. The structure shall be a building completely detached from any residence or other structure used or intended for human occupancy. The structure shall comply with Title 15 of the Tehama County Code, and have a complete roof enclosure supported by connecting walls extending from the ground to the roof, a foundation, slab or equivalent base to which the floor is secured by bolts or similar attachments. The structure shall be secure against unauthorized entry, and accessible only through one or more lockable doors. Walls and roofs must be constructed of solid materials that cannot be easily broken through, such as two inch by four inch or thicker studs overlaid with three-eighths inch or thicker plywood or the equivalent. Exterior walls must be constructed with non-transparent material. Plastic sheeting, regardless of gauge, or similar products do not satisfy this requirement.
b. Any structure, regardless of square footage, constructed, altered or used for the cultivation of marijuana must obtain a building permit from the building official. The intended use of the structure for marijuana cultivation shall be disclosed in the application for a building permit, and the structure shall be inspected for compliance with this chapter prior to the commencement of any cultivation. The conversion of any existing accessory structure, or portion thereof, for cultivation of marijuana shall be subject to these same permit requirements, and must be inspected by the building official for compliance with this chapter prior to the commencement of any cultivation. Cultivation within any structure may not commence without final approval of the building official.
c. The maximum electrical panel for the structure shall be fifty amps. Except for temporary use in case of emergency power loss, the use of generators to supply power to any system or activity associated with marijuana cultivation is prohibited.
d. Light systems utilized in connection with marijuana cultivation shall not exceed one thousand two hundred watts, shall comply with all applicable provisions of Title 15 of the Tehama County Code, and shall be shielded, including adequate coverings on windows, so as to confine light and glare to the interior of the structure.
e. The structure shall be equipped with odor control filtration and ventilation system(s) adequate to prevent marijuana plant odors from exiting the interior of the structure.
f. The structure shall have locking doors and a working security system which shall consist of a standard audible residential alarm of at least ninety dB A, but not exceeding one hundred ten dB A.
g. Such structure shall be accessory to a permitted residential use in accordance with subdivision (G) of this section.
2. Each structure in which the marijuana is cultivated shall be set back at least one hundred feet from all boundaries of the premises. Such setback distance shall be measured in a straight line from the structure in which the marijuana is cultivated to the boundary line of the premises.
(F) The cultivation of marijuana, in any amount or quantity, upon any premises is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this chapter, unless the person(s) owning, leasing, occupying, or having charge or possession of any premises have submitted the required annual registration for the premises to the Tehama County Department of Environmental Health, and provided all of the following current information and documentation to the department…
As I do not expect any one to read this section of Tehama’s County Code in its entirety who is not being paid to do so, I will provide an easy synopsis:
You can grow your six plants in Tehama County if: 1) you build or remodel a code compliant structure on your property separate of your residential unit, 2) pay for or renew a building permit for the structure while disclosing that the structure will be used for cannabis cultivation, 3) ensure that this structure has fully functioning alarm, odor filtration, and ventilation systems, 4) the structure passes county inspections, 5) apply for a county issued waiver allowing you to grow your six (6) plants, and 6) pay to register the structure as a cultivation site annually.
The six (6) plant limitation also applies to medical Cannabis recommendation holders regardless of how many Cannabis patients live on a single property. Not only has Tehama County banned all commercial activities, which limits safe access in the area, they have made it incredibly burdensome for adults and Cannabis patients to cultivate for personal and medicinal use.
Neighboring Sutter County has remarkably similar language in their municipal code. Rather than limit personal cultivation to six (6) plants, they limit the grow space to 80 square feet and require that personal and medicinal cultivation be confined to a separate registered and permitted structure on a property which also has a private residence.
Interestingly, as counties and cities seem to be able to pass local ordinances of this nature, it may result in being overlooked when the state begins issuing grants to local governments once adult use Cannabis taxation begins in 2018. Here is the section of MAUCRSA which describes this rule:
|Section 34019 of the Revenue and Taxation Code:
3 (C) To the Board of State and Community Corrections for making grants to local governments to assist with law enforcement, fire protection, or other local programs addressing public health and safety associated with the implementation of the Control, Regulate and Tax Adult Use of Marijuana Act. The board shall not make any grants to local governments which have banned the cultivation, including personal cultivation under paragraph (3) of subdivision (b) of Section 11362.2 of the Health and Safety Code, or retail sale of cannabis or cannabis products pursuant to Section 26200 of the Business and Professions Code or as otherwise provided by law.
Not only are cities and counties hurting themselves economically by banning commercial activities and limiting personal freedoms by placing burdensome restrictions on the capacity of private individuals to produce their own Cannabis, they will be unable to receive certain grants from the state financed by Cannabis taxation.
If you have any further questions about the impact of local and county laws on commercial Cannabis activities or are otherwise interested in Cannabusiness, please contact CannaBusiness Law for legal assistance in compliance with cannabis licensing, permitting and the application process relating to commercial cannabis.
Ryan Reaves is a Policy Analyst for CannaBusiness Law and Master of Public Policy candidate at Mills College in Oakland, California.
Featured image by: Jan Arendtsz “Reflection of mountains in the lake, Silver Lake, CA”