Drug Policy Alliance and ACLU of California Sue City of Fontana Over Ordinance That Conflicts With Rights Granted by California’s Marijuana Legalization Initiative

Yesterday, the Drug Policy Alliance and ACLU of California filed a lawsuit against the City of Fontana challenging a city ordinance that is in conflict with Proposition 64 (also known as the “Adult Use of Marijuana Act” or “AUMA”). The challenged ordinance places significant restraints on an adult’s legal right to cultivate marijuana plants at their personal private residence. The lawsuit seeks to invalidate the ordinance because it is preempted by Prop. 64 and violates several state constitutional rights.

On November 8, 2016, the people of California voted in favor of Prop. 64, which allows adults 21 and older to possess up to one ounce of marijuana and cultivate up to six marijuana plants at their private residence away from public view. While Prop. 64 allows local governments to regulate indoor personal cultivation, they cannot adopt unreasonable regulations or prohibit anyone from cultivating altogether.

Among other problematic provisions, the ordinance requires residents to register with the city, undergo a criminal background check, open their home to city officials, and pay an expensive fee before obtaining a permit that would allow them to grow marijuana plants in their private home. By the City Council’s own admission, this process is meant to deter its residents from engaging in legal conduct under state law.

“This ordinance is at odds with state law enacted by a majority of the voters in California, in San Bernardino County, and the City of Fontana,” said Joy Haviland, Staff Attorney at the Drug Policy Alliance. “Local officials cannot limit or undo what is now legally allowed in California. Prop. 64 allows adults to cultivate for their own personal use in their private homes without unnecessary intrusion from the state.”

The lawsuit was filed on behalf of Mike Harris, a retired Fontana resident, taxpayer and homeowner since 1987 who seeks to cultivate marijuana at his residence.

“The ACLU of California supported Prop. 64, in large part because of our longstanding policy that possessing or cultivating marijuana for personal use should not be a crime,” said Jess Farris, Director of Criminal Justice at the ACLU of Southern California. “The Fontana ordinance – and other similar ordinances around the state – would criminalize the very conduct Prop. 64 legalized, particularly for people who are ineligible to obtain a permit because of their criminal convictions or their lack of funds to obtain a permit or to dedicate an entire room in their home to cultivation.”

Prop. 64 passed with 57 percent voter approval statewide, including a majority of voters in the City of Fontana (53 percent) and the County of San Bernardino (52 percent). The Drug Policy Alliance’s affiliated organization, Drug Policy Action, served as a co-chair of the Prop. 64 campaign committee. ACLU of California endorsed Prop. 64 among other diverse statewide stakeholders such as Lt. Gov. Gavin Newsom and other lawmakers, the California Democratic Party, and the California Medical Association.