[This is the addended transcript of my regular KVMR commentary broadcast on 3 October 2014.]
The upcoming vote on Measure S, the medical marijuana initiative, is raising many questions about enforcement as they affect private property rights. Measure S, if passed, would replace Nevada County’s existing Ordinance 2349 that prescribes how medical marijuana or MMJ may be grown and consumed in the county. To be clear, proponents of S are made up almost entirely of the county’s Democrat voting, leftwing or progressive contingent, and the anti-S people are primarily conservative and vote Republican.
As the election nears we hear of all kinds of charges and counter charges claiming misrepresentation of this or that provision of S or the existing 2349. In this brief commentary I’d like to focus on the county’s MMJ enforcement provisions as they affect property rights. First, we must understand that according to county counsel Alison Barratt-Green, both S and the existing 2349 are subject to identical enforcement provisions. In other words, enforcement policy and actions by the county will be affected by the outcome of the election only to the extent that their specific provisions prescribing MMJ grows and related nuisance factors differ.
Currently 2349 provides a number of civil protections to the cultivator and county that are not present in Measure S. These include the service of a legal notice, the right to appeal, and the right to a hearing. In turn the county is protected in so far as the county’s abatement costs may be recovered from the property owner/tenant if the violation is not brought into compliance by the MMJ cultivator.
Overall, according to County Counsel, the sheriff is guided by the 4th Amendment, and the further interpretation that to the extent that a violation can be seen from a location of public access – like a street or the sidewalk – then an ordinance inspection officer may enter the property with the same permission as is extended to the US Postal Service, PG&E or the UPS driver. If thereupon an ordinance violation is confirmed, then the inspection officer/sheriff is not precluded from making a full compliance check. Depending on the subsequent findings, the inspector will then leave because the medical marijuana grow is ‘in compliance’, or he informs the resident that the grow is ‘not in compliance’, and must be remediated to bring it into compliance. Such remediation may involve abatement or removing the marijuana plants. In every such case of non-compliance, the property owner/tenant is issued a Notice to Abate Unlawful Marijuana Cultivation.