Is Medical Marijuana Cultivation More Than Just a Land-Use Issue?

Update: On February 17, 2016, the California Supreme Court denied review.


On December 1, 2015, California’s Fifth District Court of Appeal reversed a trial court ruling that had dismissed Plaintiff Diana Kirby’s challenge to the County of Fresno’s countywide ban on, and criminalization of, all marijuana cultivation. See Kirby v County of Fresno (2015) 242 CA4th 940. Kirby lost her left leg in a serious accident in 1972 that also took her vision in her left eye, broke her back in three places, and shattered her face. She is allergic to all pain medication and uses cannabis to manage her chronic pain, as recommended by her physician.

The Court of Appeal found that Kirby can assert a cause of action challenging the validity of Fresno's classification of marijuana cultivation as a misdemeanor by local ordinance. The Court ruled that Health & S C §11362.71 imposes an "obligation" on local officials not to criminalize medical possession and cultivation, and it immunizes card-holding patients from criminal arrest. "The Supreme Court's clearly expressed position is exactly the opposite of the county's view," Judge Donald Franson wrote for the appellate panel.

At the same time, however, the Court of Appeal let stand the Fresno County zoning ordinance’s civil and administrative penalties on marijuana cultivation, even the cultivation of a single plant by qualified patients or their caregivers. This poses a seemingly irreconcilable conflict with the Medical Marijuana Program Act (MMP), which provides that:

A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient. See Health & S C §11362.77(a) (emphasis added).

The MMP also expressly authorizes cities and counties to pass laws "allowing qualified patients or primary caregivers to exceed the state limits," but it does not authorize local governments to impose lower limits. Health & S C §11362.77(c). Thus, the marijuana amounts stated in §11362.77(a) were intended to be "the threshold, not the ceiling" of what qualified patients may lawfully possess or grow. People v Wright (2006) 40 C4th 81, 97 (citing legislative history).

Because of this apparent conflict (i.e., when the State has expressly authorized cultivation of a threshold amount, and yet the County has attempted to ban that threshold amount) Ms. Kirby recently filed a Petition for Review in the California Supreme Court. A ruling is expected by the Court on her Petition by mid-March. If review is granted, it is expected that the Court would then proceed to answer the basic question of whether qualified patients throughout California should be able to possess and cultivate limited quantities of marijuana for their personal medical use.


Henry Wykowski is nationally recognized as the go to attorney for the cannabis industry.

He initially distinguished himself in the defense of the landmark case of CHAMP v. Commissioner, limiting the punitive applicability of IRC Sec. 280E. Since then, Henry has been lead counsel in the cannabis industry’s most important cases, including the Harborside Health Center, and Berkeley Patient's Group forfeitures. He serves as counsel for many of the most prominent members of the industry.

Henry is a founding member and Counsel of the National Cannabis Industry Association (NCIA).  

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