PALM SPRINGS, Calif. — In a move marijuana and legal experts call unconstitutional, a California city has passed an ordinance requiring residents wanting to grow marijuana in their home under the voter-approved Adult Use of Marijuana Act to register for a $141 per year permit from City Hall.
In order to get the permit, residents of Indian Wells are required to allow a home inspection by city employees in order to determine that no more than the maximum six plants allowed under AUMA are being grown, there is adequate ventilation for the plants and cultivation is happening in a designated locked area, Assistant City Manager David Gassaway said.
No residents spoke for or against the permit during a public hearing held Thursday and the City Council adopted the ordinance in a 4-1 vote with Councilman Ty Peabody abstaining.
“I just don’t believe in marijuana,” Peabody later said, explaining that it is being legalized in California when it is still illegal federally.
The California law does allow jurisdictions to establish “reasonable” regulations within their city, but this extensive regulation is far beyond what the law allows, according to University of California, Irvine law school dean Erwin Chemerinksy.
“I think this goes significantly beyond what state law allows local governments to do,” he said in an email.
This ordinance may be the most stringent regulation passed statewide, said Paul Armentano, deputy director for the NORML Foundation, a Washington, D.C., nonprofit lobbying for reform in marijuana laws.
“If individuals are engaging in legal behavior in their privacy of their own home, it does not seem appropriate to have to register with the city,” he said, adding that people who are home-brewing beer aren’t required to register with their municipality. “This seems awfully onerous.”
Having a list of all the people in the city who are growing marijuana within their homes is also concerning in theory, conjuring up Orwellian images of Big Brother-like surveillance by law enforcement, Armentano said. However, he added, many municipalities across the country have lists of names of medical marijuana users and no widespread abuse has been observed. No such lists of recreational marijuana users — in states where it is legal — appear to exist.
“In theory, no, not a fan of having to register,” he said. “But we have no incidences of (abuse) happening.”
Forcing people to register to grow marijuana in their own homes is “unconstitutional” and “crazy,” according to cannabis law expert and attorney Omar Figueroa of Sonoma County. Figueroa cites the 1969 U.S. Supreme Court Case Leary v. United States, which ruled that self-incrimination at a federal level can’t be required during the enforcement of state law, as an obvious example of how the ordinance wouldn’t stand up in court.
“It’s not a constitutionally enforceable law,” he said. “It would be foolish of them to enforce it.”
Figueroa said any attempt to enact the permitting law would be inviting an obvious challenge from individuals and organizations such as the American Civil Liberties Union. He added that he hasn’t seen this kind of legislation anywhere in the U.S.
“It’s an issue that could be very costly for Indian Wells … they could end up with a federal court lawsuit,” he said. “I hope they don’t waste taxpayer money trying to enforce this unconstitutional law.”
Indian Wells officials, however, believe their ordinance is not problematic legally, with Gassaway saying, “We think these are reasonable regulations.”
Enforcement “will be very difficult and challenging,” Indian Wells City Attorney Stephen Deitsch said in introducing a resolution that accompanies the ordinance to the council in November.
Investigations would be prompted through complaints from neighbors, like other code enforcement issues, Deitsch said.
“If neighbors see something going on that seems amiss, that’s when a complaint would be filed with the city and instigate an investigation,” he said.
Armentano said ultimately, it would likely be up to a court to decide what “reasonable” entails, but he has a strong idea how that case would turn out.
“I don’t think that’s gonna fly at the end of the day,” he said.