Yesterday, the Drug Policy Alliance and the ACLU of California filed a lawsuit against the City of Fontana challenging a city ordinance that is intended to effectively prevent residents to enjoy the rights granted to them by Proposition 64 (also known as the “Adult Use of Marijuana Act” or “AUMA”). The Fontana ordinance makes it unreasonably difficult and expensive for residents to cultivate marijuana at their private residence as Prop. 64 allows.
On November 8, 2016, the people of California voted in favor of Prop. 64, which allows adults 21 and older to possess up to one ounce of marijuana and cultivate up to six marijuana plants inside their private residence away from public view. While the new law allows cities to regulate indoor personal cultivation, they must do so reasonably and cannot prohibit anyone outright from cultivating.
Shortly after the law took effect, several cities acted against the will of the voters and adopted ordinances that are so restrictive they operate as a de facto ban on cultivation. And for some groups of people, such as people with a prior felony drug conviction, it is an outright ban. In Fontana—where Prop. 64 passed with 53.5 percent of the vote and with 52.5 percent in the surrounding San Bernardino County—the Mayor and City Councilmembers even boasted that they wanted this ordinance to be the most restrictive in the state and they hoped it would to deter people from cultivating marijuana.
In addition to being unreasonable and in conflict with Prop. 64, the ordinance violates several state constitutional rights. Among other problematic provisions, the ordinance requires residents to register with the city, undergo a criminal background check, open their home to city officials for an inspection, and pay an expensive fee before obtaining a permit that would allow them to grow marijuana plants in their private home. If someone cultivates marijuana but fails to obtain the city permit they are subject to a misdemeanor even though the conduct is legal under state law.
The Drug Policy Alliance’s affiliated organization, Drug Policy Action, served as a co-chair of the Prop. 64 campaign committee. DPA is committed to making sure the measure is implemented the way that the voters of California intended.
The primary purpose of legalization is to reduce the criminalization of adults for using, possessing, and cultivating marijuana. The overwhelming majority of states that have legalized the adult use of marijuana have also legalized the personal cultivation of marijuana plants at a private residence. Personal cultivation also gives consumers a legal alternative to retail marijuana, which cannot be purchased in the state until 2018, and to marijuana in places where local governments legally choose to ban marijuana businesses. (Medical patients, however, may continue to purchase medical marijuana at dispensaries.)
City ordinances that are plainly intended to circumvent what state law now allows invite legal challenges such as this one. Local governments cannot undermine or undo what their voters and what the voters of California have embraced.
Joy Haviland is a staff attorney with the Drug Policy Alliance.