Elk Grove Likely to be First City Sued Over Pot Prop 64; Advice From City Attorney Skewered

Cannabis business licensing consultant Jackie McGowan
tells the Elk Grove City Council to expect a lawsuit over
its Proposition 64 moratorium. |  

January 25, 2017 |

If threats made at Wednesday night's Elk Grove City Council are followed through on, Elk Grove could be the first city in California sued over its ordinances that stand in contrast to Proposition 64. The proposition, which was passed in November's general election legalized recreational marijuana use and cultivation.

The revelation came as the Elk Grove City Council unanimously passed an ordinance that continues for 45-days the City's previous enacted moratorium and use guidelines on the cultivation of marijuana for personal use.  

In his presentation to the City Council,  City Attorney Jonathan Hobbs said they could extend the moratorium that was enacted on December 14, 2016. Among the items included in that action was a moratorium on the indoor cultivation of up to six marijuana plants, which is now legal following the November 2016 passage of Proposition 64.

"Out goal is to bring it back in the next few months," Hobbs said. "We recommend the council go ahead and extend it for the entire 10 month, 15 day period."

Among the speakers during public comment was cannabis business licensing consultant Jackie McGowan who criticized the City Councilmen for telling "people how to live their lives," (see video below). McGowan also stated that the among other things, the ban on indoor cultivation was violating the law.

"you cannot tell people that they cannot grow six plants," McGowan said. "If you read Proposition 64 you are allowed to ban outdoor cultivation, but you are not allowed to ban indoor cultivation, so you are actually in violation of the law by passing that 45-day moratorium." 

McGowan went on to say she tracks compliance statewide and that Elk Grove was on her short list of city's she was looking to file a lawsuit against and given their action, Elk Grove became their primary target. 

In her comments McGowan also skewered Hobbs telling the City Council that she did not "think you were getting good advice from your city attorney."

"That is pretty surprising to me because his firm represents a very big client of mine," she said. "So I know his firm is very current in local regulations regarding this issue, but it doesn't appear that he is."

Before becoming City Attorney, Hobbs acted in that role as an employee and partner of the Sacramento-based law firm of Kronick, Moskovitz, Tiedman & Girard. That same firm continues to do occasional legal work for the City.

In questioning by the Council, Hobbs said "we believe existing state law would authorize the moratorium for a temporary basis while the city studies this."   

Following the vote on the item, McGowan she and Long Beach, Calif-based civil rights attorney Matthew Pappas have a plaintiff and plan to file a lawsuit against Elk Grove by Friday, February 3. The lawsuit will be based on Elk Grove's ban on indoor cultivation.

"They cannot disallow anybody; everyone in this State the right to grow six plants indoors," McGowan said.

Pappas said by telephone the lawsuit will be filed and "these cities are engaging in discriminatory behavior in violation of state law."

Additionally, Pappas said he recently filed suit against the City of Santa Ana, Calif. and noted inappropriate behavior of police officers during a raid.

"I sued the City of Santa Ana and caught officers there eating edibles, what appeared to be marijuana edibles during the raid," he noted.  

More information on Proposition 64 can be viewed here.

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