An image from April's Cannabis Cup in San Bernardino
An image from April's Cannabis Cup in San Bernardino
Brian Feinzimer/L.A. Weekly

"Restrictive" Law on Pot Plants at Home Challenged in Court

California's new recreational marijuana law, passed by voters in November, lets folks grow six pot plants at home if they so desire. One of the first city regulations on growing recreational weed at home, however, is clearly designed to discourage it.

A lawsuit filed this week in San Bernardino County Superior Court challenges the city of Fontana's cultivation ordinance. It argues the city's rules on homegrown weed are far more restrictive than state voters ever intended. Two facets of the Inland Empire city's law, in particular, are cited by the suit filed by the Drug Policy Alliance and the ACLU on behalf of local resident Mike Harris: its ban on home cultivation for drug felons, and its criminalization of unpermitted home growers, who are subject to misdemeanor citation.

The first-time fee for a permit is $411, an amount that Drug Policy Alliance staff attorney Joy Haviland says is prohibitive. In passing the ordinance in February, the council "basically said they want to be the most restrictive city in the state," she says. "They really want to deter people from doing this."

The city's own official minutes on the deliberations before the law's final passage indicate that its council supporters wanted to do everything short of banning home cultivation: "Councilmember [Jesse] Armendarez stated that the city has done what it can to make this as stringent as possible. We can't stop this but we can regulate it." Additionally, "Mayor [Acquanetta] Warren stated that the state has approved [it] and we are trying to control it," according to the minutes.

We contacted the City Clerk's office but received no comment. City Attorney Jeffrey Ballinger said, via email: "The city has not yet been served with the complaint and so we can’t really comment until the City Council and City Attorneys’ Office have had a chance to review the complaint."

The DPA is concerned that if the law stands — it's one of the first in the state to require permits for home grows under the recreational pot measure known as Proposition 64 — other cities will follow suit, negating the intention of voters to allow folks to grow weed at home without undue restrictions. "We hope the suit serves as an example for other cities considering restrictions," Haviland says.

Proposition 64 states that cities can enact regulations but that they must be "reasonable." It also states that "no city, county, or city and county may completely prohibit persons engaging in" home cultivation.

But, according to the DPA, "The [Fontana] ordinance requires residents to register with the city, undergo a criminal background check, open their home to city officials and pay an expensive fee before obtaining a permit that would allow them to grow marijuana plants in their private home."

One of the long-held arguments of Proposition 64 supporters was that the drug war had disproportionately targeted minorities for arrest and imprisonment and that, as marijuana legalization evolved, it was those unjustly prosecuted folks who should be granted the freedom to grow cannabis and participate in the pot business.

"The ACLU of California supported Proposition 64, in large part because of our long-standing policy that possessing or cultivating marijuana for personal use should not be a crime," Jess Farris, director of criminal justice at the ACLU of Southern California, said in a statement. "The Fontana ordinance — and other similar ordinances around the state — would criminalize the very conduct Proposition 64 legalized, particularly for people who are ineligible to obtain a permit because of their criminal convictions or their lack of funds to obtain a permit or to dedicate an entire room in their home to cultivation."

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