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Sacramento Appeals Court Rules No Constitutional Right to Grow Marijuana
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While upholding Live Oak’s citywide ban on medical marijuana cultivation, the 3rd District Court of Appeals in Sacramento observed there is no “unfettered right to cultivate marijuana for medical purposes,” even though medical marijuana might be legal in the state.

The appeals court also observed that legalization of medical marijuana in the state does not “pre-empt a city’s police power to prohibit the cultivation of all marijuana within the city.”

  
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Live Oak’s City Council approved an ordinance for citywide ban on cultivation of medical marijuana in 2011, but James Maral, in his individual capacity and as trustee of the Live Oak Patients, Caregivers and Supporters Association sued to block the ordinance.

Maral and others argued that existent state law pre-empted the city ordinance.

In the initial round, Sutter County Superior Court Judge Perry Parker ruled in favor of the city. The matter moved in appeal and this week the 3rd District Court of Appeals upheld Parker’s judgment.

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The appeals court also said that there was no conflict between the act of a local government in controlling marijuana cultivation and the Proposition 215, the Compassionate Use Act approved in 1996, or the 2003 Medical Marijuana Program.

Neither statute, the court observed, “expressly or impliedly pre-empted a zoning provision that prohibited a medical marijuana dispensary anywhere within the city limits.”



While the court admitted that until now no other municipality has banned the cultivation of medical marijuana, “the choices other cities may have made with respect to medical marijuana are irrelevant to our analysis of pre-emption in this particular case.”

In clarifying the court’s interpretation on the legal right to cultivate medical marijuana, the appeals court observed, “there is no right – and certainly no constitutional right – to cultivate medical marijuana.”



 

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