By BROOKE STAGGS
One in seven California cities requires residents to get a permit to grow marijuana at home for their personal use.
To get that permit, some of those same cities want residents to submit to background checks and in-home police inspections. Other cities want personal-use cannabis growers to submit notarized forms and scaled site plan drawings. Some charge permit fees that can run up to $1,420.
All of these city rules are being imposed upon citizens who, under California’s Proposition 64, have as much right to grow cannabis for personal use as they do to make their own beer.
Though Prop. 64 legalized recreational marijuana in California, it also gave cities and counties broad authority to implement the law within their jurisdictions.
But how those rules match up with the spirit of the law is an open question. That’s part of why the Southern California News Group and sister publications statewide created a new statewide database tracking the marijuana policies set by all 428 cities and 58 counties in California.
In the first of three stories based on that information, we looked at how cities are responding to the cannabis industry and how those rules match up with voter sentiment.
We found that in a state where cannabis use has strong popular support (Prop. 64 passed in 2016 with 57 percent of the vote) more than two out of three California cities have, so far, blocked all marijuana businesses.
For this second story, we are looking at how some local governments are imposing limits on personal cannabis rights.
Cities and counties can’t stop residents 21 and older from consuming cannabis in private. They can’t stop adults from buying and possessing up to an ounce of marijuana. And they can’t completely prohibit residents 21 and older from growing up to six marijuana plants per household, so long as those plants are in a locked area that’s not visible from the street.
But state law does say cities can enact and enforce “reasonable” regulations on in-home marijuana cultivation.
The definition of reasonable, as it pertains to cannabis rules, has become a point of contention. In addition to creating strict rules on plants grown for personal use, some cities block legal operators — such as cannabis delivery companies — from serving their residents.
Many community leaders argue that their policies are about public safety. And in a country where cannabis remains illegal under federal law, some also cite fear of the unknown.
“We feel there are still many unanswered questions regarding the direction of the marijuana in our state,” said Terry Walker, mayor La Canada Flintridge, which requires residents to pay a permit fee of $530 to grow cannabis at home. “We wanted to fully understand not only the letter of the law but additionally the implications of the law.”
But supporters of cannabis rights say not only are some of the city policies overly harsh, they might be illegal.
“It’s really beyond what the normal powers of local government are under the California constitution,” said Dale Gieringer, California’s director of the marijuana rights advocacy group NORML.
Cities regulate home marijuana gardens
Under Prop. 64, cities can ban all outdoor marijuana gardens. And our records show that nearly three-quarters of California cities have done so, with 354 out of 482 cities limiting home marijuana grows to inside the house or to an enclosed structure in the yard.
Those outdoor bans exist even in some cities that otherwise have hands-off marijuana policies, such as San Diego, Sacramento and Eureka.
While state law says cities cannot completely ban adults from growing six marijuana plants, officials from two tiny Northern California towns — Gridley in Butte County and Montague in Siskiyou County — do exactly that, saying it is illegal in those jurisdictions to grow cannabis indoors or outdoors.
There are also 67 cities where council members have voted to make residents get a permit if they want to grow marijuana at home for personal use. And four cities require residents to register with city officials before they start cultivating cannabis at home.
Wide range of permit fees
Not all growing rules are onerous. At least eight cities that require permits to grow marijuana at home — including Los Banos in Merced County and San Dimas in Los Angeles County — don’t charge a fee. And the free permit required in South Gate never expires.
Another 18 cities said they haven’t yet decided how much they’ll charge for cannabis permits, or what the application process will look like. That’s true even though, in many cases, the city ordinances requiring grower permits have been on the books for a year or more.
In cities that do charge for residents to grow at home, our data shows the average cost for an annual permit to grow up to six plants is $281.
Fees range from $40 to register in the Central Valley town of Farmersville up to a high of $1,420 to get a homegrow permit in nearby Selma. (Renewing a permit in Selma is substantially cheaper, at $220.)
Bryant Hemby, an assistant city planner for Selma, said the $1,420 is an “administrative review fee” to cover the cost of having representatives from the city’s planning, fire and police departments review and inspect the indoor area where the resident wants to grow marijuana.
In Los Angeles County, the $530 La Canada Flintridge charge is beat by Rancho Palos Verdes’ fee of $680. Prop. 64 failed in both cities, with just 48 percent support.
“We can always go back and make changes to our ordinances if we deem it appropriate,” Mayor Walker said. “But I can tell you that, to date, I have not heard from any of our citizens who feel our ordinance is too restrictive or that they would like to have outdoor cultivation of plants.”
Clearlake charges a $250 fee, but only requires permits for outdoor marijuana gardens. The small Northern California city is the only one in the state, per our records, that requires permits but still allows people to grow marijuana outside.
Victor Ponto, an attorney with Best Best & Krieger who advises cities on marijuana policies, said cities can only set fees at an amount that covers their cost to process the permits.
“You can’t make money off of the fee,” he said. “Otherwise it becomes a tax and it’s illegal.”
But he said cities that do require staff to spend time vetting applications or inspecting homes, but don’t charge fees, are essentially passing off costs for at-home marijuana growers to all taxpayers in the city.
Strict rules for home grows
Along with imposing fees, many of these cities have a long list of requirements that residents must meet if they want to grow marijuana at home, as is legal under Prop. 64.
Many cities require home growers to have odor control systems in place, keep electricity use down, keep portable fire extinguishers handy, and, if a home is a rental, to get written permission from the property owner.
To grow plants in Fremont, residents must first register with the police department.
In La Canada Flintridge, city staff may notify nearby residents of anyone applying to grow marijuana at home. Neighbors then have 15 days to appeal.
In Paso Robles, plants can’t be grown inside a home. They can only be grown in an “accessory structure,” such as a permitted shed or a detached garage, which eliminates the home-grow option for residents who live in apartments or houses without big enough yards.
In the Riverside County city of Banning the rules for personal-use marijuana cultivation are open-ended. In addition to a list of 14 conditions, residents must meet to grow marijuana inside a home, the city application states that the Community Development director may require “any special condition” as part of the permit.
Permission? Few ask
While 72 cities require all residents to get a permit or register in order to legally grow cannabis at home, we’re only aware of three people in California who’ve sought and received local approval in California under one of these programs.
Clearlake has had two requests and has issued two permits for residents who want to grow up to six plants outdoors, according to City Manager Greg Folsom. But Folsom said there are a few weeks left in the spring planting season, and it’s been pretty cold in the area, just north of Napa.
Madera, near Fresno, has issued one permit ($149) for a resident to grow cannabis indoors. Police Chief Dino Lawson said they’ve had several other residents request applications, but so far only the one has been submitted.
In Banning, one person applied for a $170 annual permit to grow marijuana for personal use. Community Development Director Patty Nevins said that application was denied because it didn’t meet city requirements limiting indoor cultivation to homes that are more than 1,000 feet from any “school, childcare center, public park, government building, or church.”
Most cities say they haven’t had a single inquiry for permit applications.
Part of the problem could be that residents may not know they’re required to get a permit in many of these cities. Only 11 cities had permit applications that were easy to find on their websites.
Rules spark legal challenge
Fontana, 50 miles east of Los Angeles, is being taken to court over its home cultivation policy.
In June 2017, the American Civil Liberties Union teamed up with the Drug Policy Alliance to file the lawsuit on behalf of resident Mike Harris.
The city’s five-page application requires residents to pay for a background check, blocks people who owe any city fees and bans anyone with felony drug convictions within the past five years. The application fee is $411 and the annual renewal fee is $253.
Harris’ lawsuit claims those policies violate state law by banning entire classes of people — people who have criminal backgrounds, can’t afford the fee or who don’t want to waive constitutional rights related to home searches — from growing marijuana at home.
“Voters passed Prop. 64 in 2016 with the idea that they would be legalizing marijuana, including cultivation,” said Jolene Forman, an attorney with the Drug Policy Alliance. “We want to ensure that people’s right granted by Prop. 64 is honored.”
Marc Tran, an attorney representing Fontana in the case, said the city passed rules aimed at keeping residents safe and a fee that simply recoups staff costs. And he said Fontana believes it is acting within the law, which gives cities “a lot of deference” to regulate marijuana in their borders.
Each side has had one small legal victory so far. The city won its fight against the Harris team’s request to question the mayor and other city officials about their motivation for passing the permit ordinances. And Harris won a request to file a longer-than-usual legal brief in the potentially influential case.
There’s a hearing in the case set for Sept. 14. Ponto said a decision — likely followed by an appeal, no matter how it comes down — is expected soon after that.
In the meantime, city planning manager Orlando Hernandez said Fontana hasn’t had a single request for a home cultivation permit.
Cities block marijuana deliveries to residents
Cities and counties can’t stop delivery or distribution services from using their roads to get from one place to another. But along with controlling personal cultivation, some city councils are passing ordinances that make it illegal for licensed marijuana delivery services to serve their residents.
Ponto said his law firm believes that’s supported by state law, which gives cities a right to control all commercial cannabis activity in their borders.
Alex Traverso, spokesman for the Bureau of Cannabis Control, said the state’s legal counsel agrees that city authority applies both to deliveries starting and ending in their jurisdiction.
Gieringer, with NORML, said such policies are particularly problematic for medical marijuana patients, who may suffer from mobility issues that make it tough for them to get to a dispensary or to grow their own cannabis at home. And since fewer than one in seven cities allow recreational cannabis stores, our map of licensed shops shows there are some places in California where the closest legal marijuana store is more than 100 miles away.
Senate Bill 1302, proposed in February by State Sen. Ricardo Lara, D-Bell Gardens, would clear things up by forcing cities to allow licensed marijuana delivery services within their boundaries. The bill needs two-thirds support from the legislature to pass.