By Jason Browne
An alarming tactic is being deployed against lawfully operated cannabis farms throughout California, called the “nuisance ordinance”. Wherever it’s adopted, the lawful cannabis related activities of patients, within their own homes and on their own property, have become a supposed “public nuisance”. The opponents of a well-regulated and taxed cannabis industry use the nuisance ordinance to intimidate and confuse law abiding patients into waiving their rights, under the guise of “compliance”. These nuisance ordinances all stem from one source, and are really the same ordinance, being copied around the state and used by municipalities (instead of having legitimate public discourse that would produce locally derived and meaningful legislation.) The template of the nuisance ordinance was drafted by attorneys working at the behest of various law-enforcement associations. Every time a City Council or Board of Supervisors introduces the nuisance ordinance, a similar pattern emerges. First, the matter appears on the agenda, after local officials have already held private meetings on the subject (without public notice). The ordinance is then placed on the fast track to being adopted, over the course of a few meetings. Once local patients become aware of the matter, they organize against it, and an overwhelming majority of public participants at every meeting (75-90%) are clearly opposed. Despite a majority of community opposition, the city/county adopts the ordinance. In at least one jurisdiction, federal grant monies have been offered to (and apparently accepted by) a municipality, in direct exchange for passing the nuisance ordinance. Once the nuisance ordinance is adopted, patients may seek relief through the courts and they may gather signatures for a referendum against the ordinance and/or a ballot measure with which to replace it.
The gist of the nuisance ordinances is as follows: It diverges completely from normal zoning categories and replaces them with acreage-based assessments, “authorizing” productive farms only on properties containing very large acreage (usually 160 acres or more). It applies very restrictive property set-backs (usually 100 feet). It fails to recognize the medical needs of any patients receiving the cannabis. And it forbids any cultivation whatsoever within a 1000’ radius of multiple locations, including churches, schools, bus-stops, parks, recreation-centers, youth facilities, etc. It’s worth noting that each area representing a 1000’ radius is approximately 72 acres of land. Further complicating matters, offending municipalities refuse to publish maps designating where prohibited areas are, making compliance literally impossible. The nuisance ordinance requires garden “registration” (in violation of privacy rights); It contains indemnity clauses with adhesion contracts (waiving the right to hold any public official accountable for violating peoples’ rights), and; It contains landlord signature requirements that would ensure the forfeiture of any property where cultivation occurs, if such measures were ever pursued.
There is a mutually exclusive relationship between criminal law investigations, civil nuisance abatement proceedings, and how patients interact with them both. It’s often detrimental for patients to cooperate with civil nuisance abatement proceedings or so called “compliance inspections”, under the current political and legal climate in California. The premise behind the nuisance ordinance is that all cannabis farming is a public nuisance, no matter how it’s conducted. However, in order to constitute an actual public nuisance, there needs to be a valid complainant. So the first steps in preparing a civil abatement defense are to eliminate all visual access to cannabis plants from neighboring properties, to secure the farm against all reasonable forms of trespass, and to reduce, mask or eliminate the smell of cannabis (where possible). When farms are cultivated in ways that remove the possibility of actual neighborhood complainants, the only circumstances under which officials can gain legal access to a farm are upon the invitation or admission of the property owner, or any resident or guest. Fly-overs don’t qualify as nuisance complaints, because air-space is part of the commons and therefore not the province of the individuals who are flying in it.
Without an invitation to enter the premises or an admission of cultivation, armed with the knowledge that there are no legitimate neighbor complaints, all reasonable grounds to justify a civil abatement proceeding are eliminated. Once these steps are undertaken, so long as the garden is operating within full compliance of State laws, the logical approach to take with any nuisance abatement officials or “compliance inspections” is to pronounce plausible deniability (don’t admit to cultivation) and to refuse entry without a warrant. Once a warrant is correctly presented, copies of exculpatory evidence may then be provided to law enforcement. If the abatement official is prepared to serve an abatement order, a legal resident may sign and receive it (writing “without prejudice” in front of the signature) while continuing to deny culpability and to refuse entry without a warrant.
When officials require a warrant in order to gain entry, this gives patients and their attorney’s time to prepare. It also presents officials an opportunity to lie in their affidavit to obtain the search warrant, because there is no probable cause of any criminal activities. And it affords patients the benefits of our criminal courts (including rules of evidence and the compassionate use defense) that are simply not available in nuisance abatement proceedings. Additionally, the penalties for non-compliance with a nuisance ordinance are relatively minimal, compared to a criminal prosecution (they are merely infractions that may culminate in liens or an abatement, which can take many weeks if patients utilize the appeals process). By then, with luck, the harvest may already have taken place, or a civil attorney will have time to file counter-measures.
In my county, I don’t personally know of a single garden that has registered, because the act of registration itself is an invitation to warrantless searches. The landlord letter is an invitation to asset forfeiture. It’s simply detrimental for patients to register their farms or to incriminate their landlords, so they justifiably aren’t doing it. Law enforcement officers routinely gather “evidence” for criminal proceedings under the guise of nuisance abatement or compliance inspections. Unfortunately, this means that voluntary compliance with any aspect of a nuisance abatement proceeding or “compliance inspection” constitutes a waiver of certain legal rights that are quintessential to maintain, in the defense against potential criminal charges by local law enforcement. Hopefully, understanding the nature of this choice will enable your readers to make an informed decision, if this ever happens to them.
This letter does not constitute legal advice, and the author encourages anyone involved in lawful cannabis related activities to always consult with an attorney first.
Jason Browne (Expert Witness)
Full Circle Cannabis Consultations