LAKEPORT, Calif. – A Lake County judge anticipates giving a verbal ruling this Friday on a group of county residents’ effort to get a preliminary injunction against the county of Lake for its interim urgency marijuana cultivation ordinance.

Judge David Herrick said he would give the ruling at 3 p.m. Friday following a Wednesday afternoon hearing in the case of Don Merrill and three anonymous co-plaintiffs.

The ruling will come days ahead of the Board of Supervisors’ next meeting on Tuesday, Aug. 21, at which time the supervisors intend to discuss extending the ordinance, originally passed Monday, July 9.

In response to an unfettered increase in marijuana grows around the county, the board set limits in the ordinance of six plants on a half acre or less, 12 plants with a 75-foot setback on parcels of half an acre to one acre, 18 plants and a 150-foot setback on parcels one to five acres in size, 36 plants and a minimum 150 foot setback on five- to 40-acre parcels, and a maximum of 48 plants on parcels 40 acres and larger.

Merrill and his co-plaintiffs said those limits were too low to serve their medicinal needs and filed suit seeking a temporary restraining order two days after the ordinance was passed. Late last month, Herrick granted a limited restraining order that protected the plaintiffs from action.

The county has continued with enforcements under the ordinance, making several arrests and abating thousands of plants on vacant parcels and properties where there are serious environmental issues, according to a report Community Development Director Rick Coel gave the board last week.

Joe Elford, the attorney representing Merrill and the other plaintiffs, said they were pushing forward with the preliminary injunction on the ordinance.

“It’s unfortunately proven that the temporary restraining order is not sufficient to protect medical marijuana patients in Lake County,” he said.

Elford also wanted to call Coel to the stand on Wednesday. Senior Deputy County Counsel Bob Bridges, who was accompanied by Coel to court, successfully argued against Elford’s request, calling it irrelevant and an attempt to introduce testimony after the briefing schedule was set.

Herrick said he didn’t see any point in the questioning, noting that Elford made his points about the county actions in his filings.

Elford told the court that the county was instilling fear in the hearts and minds of medical marijuana patients. He argued that the county had “tools in its toolbox” to deal with nuisance grows.

The court could alleviate the fear of medical marijuana patients by issuing an injunction for all individuals who are “similarly situated” to Elford’s clients, which he explained during the hearing meant patients growing according to state guidelines.

“The hardship to my clients is severe,” Elford said, as they faced the loss of medicine they worked hard to cultivate.

Bridges asked the court to “keep a healthy skepticism” about Elford’s statements, which he said were not substantiated by testimony or supported by fact.

While the plaintiffs were claiming the ordinance was unconstitutional, Bridges said the county didn’t agree.

“The county believes the ordinance is lawful, that it’s a proper exercise of our police power,” he said, adding that the ordinance had a proper basis.

Bridges said the County of Los Angeles v. Hill case – which dealt with permitting dispensaries – shows that land use rules as they apply to marijuana aren’t preempted.

“Our Supreme Court consistently takes a narrow view of the Compassionate Use Act,” said Bridges, noting that the court refused to take up the Hill case for review, which upheld the Second District Court of Appeals ruling.

Bridges said that if there is a problem use there are always secondary effects; in this case, those effects involve smell, violence and break-ins, as well as the potential for blight. The county previously didn’t have an ordinance to deal with those problems. He said the ordinance also doesn’t allow cultivation as a  grandfathered use.

“Marijuana is not the same as rose bushes and tomato plants,” he said, explaining that marijuana is illegal under federal law and under state law except for medical marijuana exceptions.

He said the ordinance doesn’t restrict people from growing the amounts they need, but it does restrict them to locations. “The plaintiffs just need to be a little creative.”

The notion that the right to use medical marijuana trumps all rights – and is some kind of “super right” – “is just absurd,” said Bridges.

Bridges suggested that California voters didn’t approve the Compassionate Use Act with the understanding that it allowed what the plaintiffs claimed it did. To think voters would have allowed a “free for all,” said Bridges, is “hard to believe.”

Turning Lake County into a place “where anything goes” would create serious harm, Bridges said.

Elford argued during the hearing that the county can’t use the zoning ordinance to violate state medical marijuana law, just as it isn’t to use criminal law to violate those rights.

Herrick questioned why the ordinance had to be thrown out to achieve the plaintiffs’ ends, noting he had tried to carefully word the temporary restraining order to apply to them.

“Your arguments are in sweeping terms,” he told Elford. “A vested right doesn’t always mean a right that is forever.”

Elford agreed that the judge was correct.

Herrick said he also recalled a number of cases that allow for regulation of medical marijuana cultivation as a land use issue. If that’s the case, he said the issue then becomes the language for a proper ordinance versus an improper ordinance.

Elford said he was not aware of any published decision that gives land use restrictions on marijuana cultivation.

He said people with nuisance grows can be addressed, but said medical marijuana patients who are compliant with state law can’t be “thrown out with the bathwater.” Rather, Elford said the county has civil and criminal remedies for nuisance situations.

Elford said the plaintiffs wanted to get a full trial on a permanent injunction on the ordinance.

“The question I have is, is this a prohibition?” Herrick asked of the ordinance. He said it was a regulation. “You can call it a ban,” he told Elford, adding that he didn’t believe it was a ban.

Herrick said there was another tangential issue that ultimately must be addressed.

He said other parts of the ordinance not addressed in the suit included screening and setbacks. “Those are simple land use regulations,” said Herrick, adding that indoor cultivation can be seen as part of the regulation scheme.

“If you can’t regulate how marijuana is cultivated, then the Compassionate Use Act becomes legalization, period, and that’s clearly not what it was intended to be,” Herrick said.

“That’s the reason why our board has undertaken this measure,” said Bridges, who argued that the Compassionate Use Act has been abused to the point where there are no limits.

Officials were grappling with something that was impacting the whole county, Bridges said. “It’s becoming a cultural upheaval.”

Elford said the Compassionate Use Act does have restrictions, including the requirement to have a doctor’s recommendation and the need to cultivate amounts consistent with those recommendations.

If someone is growing too much, they can be dealt with criminally and civilly, Elford said. “They do have a hammer here, they’re just not using it in particular fashion.”

Also on Wednesday, Lucerne residents Ron and Conrad Kiczenski filed an ex parte application to join Merrill and his co-plaintiffs in the case.

The Kiczenskis had sought their own temporary restraining order last month, which Herrick denied without prejudice because he said they failed to make a showing of significant harm.

Their request to be joined to the main case will be heard at 3:30 p.m. Friday following Herrick’s oral ruling on Merrill’s request for a preliminary injunction.

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