A lawsuit against Clearlake’s ban on marijuana cultivation within city has been filed in Lake County Superior Court.
“The Clearlake ordinance is not only extremely cruel, but it is also illegal under California law,” said Joe Elford, a San Francisco attorney who filed the suit on behalf of plaintiffs Jeri Spittler, Anthony Spittler and Robin Farnham. “Both the state electorate and legislature have stated that medical marijuana patients may cultivate the medicine they need for their personal medical use. This ordinance conflicts with both the spirit and letter of California law, so it should be struck down as pre-empted by those laws.”
Jeri Spittler is a former Clearlake mayor and city council member.
The city council adopted the ordinance banning grows within city limits during their Feb. 26 meeting. The decision goes into effect next week. Elford decided not to file for a temporary restraining order pending the outcome of a referendum petition currently circulating that would place the issue on a ballot, allowing voters to keep or rescind zero tolerance.
“Banning medical marijuana cultivation violates the clear intent of Prop. 215 to assure that medical marijuana patients have safe and affordable access to medical marijuana,” said Dale Gieringer, Director of California NORML.
In a press statement, California NORML, which supports the move, claimed the suit intended to seek relief for qualified medical patients in Clearlake. They indicated that Jeri Spittler needed medical marijuana to manage pain from fibromyalgia while her husband requires relief from the effects of chemotherapy.
The couple “prefer growing 12 plants on their property in Clearlake to traveling to dispensaries for their medicine, which is cost-prohibitive and might expose them to criminal penalties for transportation,” the statement said.
Following the Dec. 26 council meeting, opponents of the ban anticipated a lawsuit supported by NORML. But council members in favor of the ordinance insisted at the time that only zero tolerance could eliminate illegal grows, which many link as a cause of Clearlake’s high crime rate.
“The bottom line for me is how to make our city safe for every citizen that is living within it,” said Mayor Denise Lousalot.
The city insists that the ban does not reverse Proposition 215, as it does not criminalize the use of medical marijuana.
“We are not turning people into criminals here,” Vice Mayor Gina Fortino-Dickson insisted during heated debates last month. “This is not taking away anyone’s right to use medical marijuana.”
But California NORML sees an opportunity, should the court rule in favor of the plaintiffs, to challenge Maral v Live Oak, in which the Third District Court of Appeals determined cities could legally ban all marijuana grows.
Since then a number of small cities have discussed or enacted bans. Others have changed zoning regulations to either allow or hinder cultivation. The city council in Beaumont voted in favor of an outright ban in February of 2014. California City voted on an ordinance to bar both dispensaries and cultivation. In Desert Hot Springs, a measure established per square foot taxes on cultivation.
Fresno and Fresno County put in place cultivation bans.
“That would give us a good chance of a hearing before the Supreme Court,” Gieringer said. “Because Clearlake is in a different appellate district than Live Oak, they aren’t necessarily bound by the Maral decision.”
The petition for review of the Maral decision was denied by a 4-3 vote. That margin clouds the legal battle. Proponents of medical marijuana hope to force a split in court decision that could eventually lead to a hearing in the California Supreme Court.
“For ultimate success I like our chances,” Elford said.
