Filed 8/31/18 Ehrsam v. County of Butte CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

—-

DONALD EHRSAM et al.,

Plaintiffs and Appellants,

v.

COUNTY OF BUTTE et al.,

Defendants and Respondents.

C079560

(Super. Ct. No. 163741)

Plaintiffs are “qualified patients” under the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5) who cultivate marijuana for medical purposes upon the recommendation or approval of a physician. Plaintiffs brought the instant action for injunctive and declaratory relief related to amendments to Chapter 34A of the Butte County Code that restricted the cultivation of medical marijuana (Butte County Ord. No. 4075, amending Butte County Code, ch. 34A, §§ 34A-4, 34A-5, & 34A-8; hereinafter Ordinance No. 4075). Plaintiffs appeal from a judgment dismissing their first amended complaint after the trial court sustained a demurrer without leave to amend. In sustaining the demurrer without leave to amend, the trial court concluded that section 34A-4 does not violate the due process or equal protection clauses of the state or federal constitutions or the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.; hereinafter ADA).

While this case was pending on appeal, Chapter 34A was amended a second time. (Butte County Ord. No. 4107, amending Butte County Code, ch. 34A, §§ 34A-2, 34A-3, 34A-4, 34A-13, 34A-16, & 34A-19; hereinafter Ordinance No. 4107.) As the parties acknowledge, this amendment cured the alleged defects that gave rise to plaintiffs’ claim that section 34A-4 arbitrarily and capriciously bans certain patients from cultivating marijuana and not others. Plaintiffs claim, however, that section 34A-4 continues to discriminate against individuals with disabilities in violation of the ADA by failing to provide an exemption for qualified patients in wheelchairs and “violates the equal protection clause of the Constitution.” We shall conclude that the section 34A-4 is not subject to the ADA, plaintiffs forfeited their equal protection claim by failing to adequately develop it on appeal, and even if the claim had been preserved, it lacks merit. Accordingly, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Ordinance No. 4075

In February 2013, defendant Butte County Board of Supervisors (Board of Supervisors) enacted Chapter 34A of the Butte County Code, known as the “Butte County Medical Marijuana Cultivation Ordinance.” (Butte County Ord. No. 4051.)

In February 2014, the Board of Supervisors adopted Ordinance No. 4075, entitled “Restrictions on Cultivation of Medical Marijuana,” which amended certain sections of Chapter 34A. A valid referendum to either repeal Ordinance No. 4075 or submit it to the voters received the required number of signatures, and the ordinance was placed on the November 2014 ballot. It was approved by the voters on November 4, 2014.

As amended by Ordinance No. 4075, section 34A-4 provided in pertinent part: “(a) The cultivation of marijuana plants exceeding the following square footage limitations, on any premises is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this Chapter:

“(1) If the premises is one-half (0.5) of an acre in size or less, plants may be cultivated on the premises indoors only in a detached structure no larger than one hundred twenty (120) square feet in size;

“(2) If the premises is greater than one-half (0.5) of an acre in size but less than five (5) acres in size, a single cultivation area no larger than fifty (50) square feet may be devoted to the cultivation of marijuana on the premises. The cultivation area shall be measured from the outer edge of the marijuana plant canopy and not the stalk. The cultivation area shall have one (1) or more recommendations associated with the plants. The cultivation area may be either indoors or outdoors;

“(3) If the premises is equal to or greater than five (5) acres in size but less than ten (10) acres in size, a single cultivation area no larger than one hundred (100) square feet may be devoted to the cultivation of marijuana on the premises. The cultivation area shall be measured from the outer edge of the marijuana plant canopy and not the stalk. The cultivation area shall have two (2) or more recommendations associated with the plants. The cultivation area may be either indoors or outdoors;

“(4) If the premises is equal to or greater than ten (10) acres in size, a single cultivation area no larger than one hundred fifty (150) square feet may be devoted to the cultivation of marijuana on the premises. The cultivation area shall be measured from the outer edge of the marijuana plant canopy and not the stalk. The cultivation area shall have three (3) or more recommendations associated with the plants. The cultivation area may be either indoors or outdoors.”

Pursuant to subdivision (c) of section 34A-4: “The single cultivation area shall consist of one contiguous space. The length and width of the single cultivation area shall not exceed a ratio of 2:1.”

On January 8, 2015, defendant Butte County Department of Development Services (Department) began enforcing Ordinance No. 4075.

B. The Complaint

Plaintiffs Donald Ehrsam, Raymond Sperry, Douglas Gunning, and Gina Endler are patients who cultivate marijuana for medical purposes upon a recommendation or approval of a physician. They are also qualified individuals with disabilities under the ADA (42 U.S.C. § 12131(2)). In addition, Endler broke her neck in a driving accident and needs to use a wheelchair for mobility.

On February 3, 2015, plaintiffs initiated the instant action against defendants Butte County (County), the Board of Supervisors, and the Department for injunctive and declaratory relief. In their complaint, plaintiffs allege that section 34A-4, as amended by Ordinance No. 4075, allows “certain patients to grow more [marijuana] than other patients without any rational basis for doing so. Individuals on smaller parcels could grow more than individuals on larger parcels, and patients living alone were prohibited from growing any medicine while patients living together could have gardens.” Plaintiffs further allege that “[n]o exceptions were written into the Ordinance to allow individuals in wheelchairs to be able to cultivate for their medical needs, and such individuals are discriminated against by the County based on the Ordinance.”

Plaintiffs claim that section 34A-4 is unconstitutional on its face because it (1) arbitrarily and capriciously bans certain patients from cultivating marijuana and not others, and (2) discriminates against disabled individuals in violation of the ADA by “declaring that marijuana gardens must be contiguous, can only have a maximum square footage, and by not creating an exception for disabled individuals that require a wheelchair for mobility.” Plaintiffs further claim that section 34A-4 is unconstitutional as applied because it precludes them from (1) growing any medical marijuana, and/or (2) constructing a 36-inch path in their marijuana gardens in compliance with the ADA.

C. The Demurrer

Defendants demurred to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Defendants argued that plaintiffs’ claims are based on a “deliberate misreading” of section 34A-4, and that contrary to plaintiffs’ assertion, section 34A-4 “permits a medical marijuana cultivation area of 50 square feet per qualified patient,” and “all of the plaintiffs are permitted a medical marijuana cultivation area,” assuming they own the premises or occupy it pursuant to a written lease with permission granted. Defendants also argued that the ADA does not apply, and there is nothing in section 34A-4 “that in any way impairs [plaintiff] Ms. Endler from configuring her 50 square feet of cultivation area in a fashion that would provide her the opportunity to cultivate as much medical marijuana as any other qualified patient. For example, one or more access paths could be provided that would not ‘count against’ her 50 square feet.” The trial court sustained the demurrer without leave to amend.

On June 19, 2015, plaintiffs filed a timely notice of appeal.

D. Ordinance No. 4107

On January 26, 2016, after briefing was completed on appeal, the Board of Supervisors enacted Ordinance No. 4107, which amended certain sections of Butte County Code, chapter 34A, including section 34A-4. A valid referendum to either repeal Ordinance No. 4107 or submit it to the voters received the required number of signatures, and the ordinance was placed on the June 2016 ballot. It was approved by the voters on June 7, 2016.

As amended, section 34A-4 now provides in pertinent part:

“(b) The cultivation of marijuana plants exceeding the following square footage limitations, on any premises is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this chapter:

“(1) If the premises is one-half (0.5) of an acre in size or less, plants may be cultivated in a single cultivation area no larger than fifty (50) square feet. The cultivation area shall be measured from the outer edge of the marijuana plant canopy and not the stalk. The cultivation area shall have one (1) or more recommendations associated with the plants. The cultivation area must be located inside a detached structure that is no larger than one hundred twenty (120) square feet in size;

“(2) If the premises is greater than one-half (0.5) of an acre in size but less than five (5) acres in size, a single cultivation area no larger than fifty (50) square feet may be devoted to the cultivation of marijuana on the premises. The cultivation area shall be measured from the outer edge of the marijuana plant canopy and not the stalk. The cultivation area shall have one (1) or more recommendations associated with the plants. The cultivation area may be either indoors or outdoors;

“(3) If the premises is equal to or greater than five (5) acres in size but less than ten (10) acres in size, a single cultivation area no larger than one hundred (100) square feet may be devoted to the cultivation of marijuana on the premises. The cultivation area shall be measured from the outer edge of the marijuana plant canopy and not the stalk. The cultivation area shall have at least one (1) recommendation for every fifty (50) square feet of plants. The cultivation area may be either indoors or outdoors;

“(4) If the premises is equal to or greater than ten (10) acres in size, a single cultivation area no larger than one hundred fifty (150) square feet may be devoted to the cultivation of marijuana on the premises. The cultivation area shall be measured from the outer edge of the marijuana plant canopy and not the stalk. The cultivation area shall have at least one (1) recommendation for every fifty (50) square feet of plants. The cultivation area may be either indoors or outdoors.” (Ordinance No. 4107.)

Pursuant to subdivision (d) of section 34A-4, “The single cultivation area shall consist of one (1) contiguous space. The length and width of the single cultivation area shall not exceed a ratio of two (2) to one (1).”

Because the amendments to section 34A-4 concern the same provisions challenged by plaintiffs in their complaint, we asked the parties to file supplemental letter briefs addressing the following: “What impact if any does Butte County Ordinance 4107, passed by the Butte County Board of Supervisors on January 26, 2016, and approved by voters as ‘Measure H’ on June 7, 2016, have on this pending appeal?” Defendants responded that “[t]he amendments to section 34A-4 now in place clearly extinguish [plaintiffs’] constitutional challenge.” “To the extent Section 34A-4 required clarification, the amendments do precisely that,” and “any alleged constitutional claim has been eliminated.”

Plaintiffs do not disagree. Plaintiffs acknowledge that “the enactment of Ordinance 4107 has resolved the inconsistencies and inequities of the original ordinance regarding the amounts and requirements regarding the growing and cultivation of marijuana so that the aggregate amounts and medical recommendations are now commensurate with lot size that were the subject of the appeal.” Plaintiffs contend, however, that “the revised and adopted ordinance (4107) continues to fail to address the issue raised in the appeal regarding the prejudicial and exclusionary language of the ordinance that does not provide for accommodations of persons with disabilities (42 U.S.C. [§] 12131) relating to the growing and cultivation of medical marijuana.” Plaintiffs rely in particular on section 34A-4(d), which requires that “[t]he single cultivation area shall consist of one (1) contiguous space.” (Italics added.) According to plaintiffs, “[a]s currently drafted, neither pathways or other accommodations are permitted as they would disrupt the single are[a] of cultivation. Further, even assuming arguendo that the ordinance impliedly would allow for such accommodations as part of the ‘single cultivation area,’ there is nothing in the ordinance that indicates that these accommodating areas would not be included in the total allowable area of cultivation (i.e. a 3’ x 10’ pathway consisting of 30 square feet would only allow for the cultivation of 20 square feet for medical marijuana). As such, the ordinance as presently written . . . violates the equal protection clause of the Constitution.” Accordingly, plaintiffs urge this court “to reform Ordinance 4107 so that it complies with the provisions of the Americans with Disabilit[ies] Act and to include language that permits the accommodations necessary for the affected individual to cultivate medical marijuana to the full extent allowed under the ordinance.”

Defendants respond that section 34A-4 is not subject to the ADA, and in any event, “there is nothing in . . . Chapter 34A that in any way impairs Ms. Endler from configuring her 50 square feet of cultivation area in a fashion that would provide her the opportunity to cultivate as much medical marijuana as any other Qualified Patient. For example, one or more access paths could be provided that would not ‘count against’ her 50 square feet.”

DISCUSSION

In reviewing whether the trial court erred in sustaining defendants’ demurrer without leave to amend, we review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) “ ‘ “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ ” (Zelig, supra, 27 Cal.4th at p. 1126, quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

As a preliminary matter, we agree with the parties that section 34A-4 as currently written does not reflect the inconsistencies and inequities concerning the size of the cultivation area and number of required recommendations that were alleged to exist in the prior version of the section and thus turn to plaintiffs’ claims that section 34A-4 continues to discriminate against persons with disabilities in violation of the ADA by failing to provide an exemption for persons in wheelchairs and “violates the equal protection clause of the Constitution.”

I

Section 34-A Is Not Subject to the ADA

In James v. City of Costa Mesa (9th Cir. 2012) 700 F.3d 394, 397 (James), the Ninth Circuit Court of Appeal held that ordinances prohibiting medical marijuana dispensaries from operating within the cities of Costa Mesa and Lake Forest’s boundaries did not run afoul of the ADA, reasoning that “ ‘the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use’ [42 U.S.C.] § 12110(a),” and federal law does not authorize the plaintiff’s medical marijuana use. (James, at pp. 396-398.) The court affirmed the district court’s holding that “the ADA does not protect against discrimination on the basis of marijuana use, even medical marijuana use supervised by a doctor in accordance with state law.” (Id. at p. 397.)

Each of the plaintiffs in this case, including Endler, cultivate marijuana for personal use. Such use is not protected by the ADA, and thus, section 34A-4 does not violate the ADA. (See James, supra, 700 F.3d at p. 397.) Moreover, even if we were to focus our analysis on the plaintiffs’ cultivation of marijuana, as opposed to their use of it, we would conclude that their cultivation likewise is not protected by the ADA because federal law does not authorize it (21 U.S.C. § 841) and the purpose of their cultivation is for their personal use.

II

Plaintiffs Forfeited Their Equal Protection Claim, and Even If the Claim Had Been Preserved for Review, It Lacks Merit

In their supplemental letter brief, plaintiffs argue that section 34A-4 “as presently written . . . violates the equal protection clause of the Constitution.” Plaintiffs, however, fail to develop this argument or to distinguish it from their assertion that section 34A-4 violates the ADA. While plaintiffs’ opening brief on appeal includes a more developed argument regarding the equal protection clause, it is limited to the alleged inconsistencies and inequities in the size of the cultivation area and number of required recommendations in the earlier version of section 34A-4, which the parties agree were cured by the amendments thereto. Issues concerning persons in wheelchairs are not discussed in that section, although the requirement that “[t]he single cultivation area shall consist of one (1) contiguous space” is included in both versions of section 34A-4. Rather, issues related to persons in wheelchairs are discussed only in connection with plaintiffs’ ADA cause of action.

Plaintiffs forfeited their claim that section 34A-4 violates the equal protection clause of the state or federal constitutions based on its alleged treatment of persons with disabilities by failing to adequately develop the claim on appeal. (See Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482 [an argument raised in perfunctory fashion is forfeited].)

Moreover, even if the claim had been preserved for review, it lacks merit. As set forth above, section 34A-4(d) provides in pertinent part: “The single cultivation area shall consist of one (1) contiguous space.” (Italics added.) Plaintiffs assume that contiguous means touching, and thus, the requirement that the cultivations area consist of a single contiguous space (1) precludes the inclusion of pathways or other accommodations necessary for persons in wheelchairs to tend their marijuana, and (2) even if such accommodations are permitted, they necessarily would be included in the total allowable area of cultivation, thereby reducing the amount of land that could be used to grow marijuana. We are not persuaded.

While the definition of contiguous includes “being in actual contact : touching along a boundary or at a point,” it also includes “next or near in time or sequence.” (Merriam-Webster’s Collegiate Dict. (11th ed. 2006) p. 270.) Thus, as defendants concede, a single contiguous cultivation area may be bisected by pathways, and such pathways need not be included in the calculation of the allowable area of cultivation. In other words, a qualified patient in a wheelchair, such as Endler, is able to cultivate the same amount of marijuana as an able-bodied person under section 34A-4. Accordingly, even assuming plaintiffs’ equal protection claim had been preserved for review, it fails.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

/s/

Blease, Acting P. J.

We concur:

/s/

Hull, J.

/s/

Murray, J.