CLEARLAKE, Calif. – Clearlake's former mayor, her husband and another woman have filed suit against the city of Clearlake over a new ordinance that bans marijuana cultivation, a measure that they claim violates the state constitution.
The suit was filed Friday in Lake County Superior Court by San Francisco-based attorney Joseph Elford on behalf of Jeri Spittler, Anthony Spittler and Robin Farnham, and is supported by marijuana activist group Cal NORML.
Clearlake City Manager Joan Phillipe said the city was served with the suit on Monday afternoon.
Phillipe said the suit has been forwarded to City Attorney Ryan Jones – who also authored the new ordinance – for review.
Following two lengthy and contentious public hearings, the Clearlake City Council – citing concerns about public safety and the impacts on neighborhoods – voted on Feb. 26 to enact the marijuana cultivation ban ordinance.
It replaced an ordinance that had gone into effect in January 2014 that prohibited commercial grows and grows on vacant lots, and limited the number of plants to six on parcels smaller than a half acre and as many as 48 plants on properties 40 acres or larger.
City officials said that earlier ordinance had lacked a strong enough enforcement mechanism, and the result was that the number of grows in the city skyrocketed in 2014.
At the Feb. 26 meeting, Jeri Spittler had promised the council that if it passed the ordinance, “I will be the first one to litigate this with you in court.”
The suit she, her husband and Farnham have filed against the city explains that all three are marijuana patients.
Jeri Spittler suffers from fibromyalgia and Anthony Spittler is in remission from stage four throat and neck cancer. Court documents state that they have grown 12 plants at their residence.
Farnham uses the drug to treat symptoms associated with a brain aneurysm she suffered five years ago. The suit said her spouse and primary caregiver, Mike Smith, has grown six plants at their residence for her medical use.
The suit indicates that all three plaintiffs grew marijuana “in the past,” but does not give the timeframe.
In the case of the Spittlers, the plant amounts that the suit states they grew are twice what was allowed under the previous ordinance, which also prohibited grows within 600 feet of child care centers, a provision which Jeri Spittler had opposed while on the Clearlake City Council. The Spittlers' property is less than 600 feet from an NCO Head Start program, according to a Google map of the city.
All three plaintiffs claim that they do not know how they will access medical marijuana under the ordinance. While the city still has dispensaries, the Spittlers and Farnham said that obtaining marijuana through dispensaries is cost prohibitive for them.
In the case filing Elford argues that the city's ordinance violates the 1996 Compassionate Use Act, which allowed qualified patients to cultivate and possess marijuana for their medical needs.
“This Ordinance conflicts with State law, unconstitutionally amends a voter-approved initiative and is vague, so it should be invalidated,” the suit states.
The suit states that the Clearlake ordinance “completely prohibits qualified medical marijuana patients from cultivating and, arguable, possessing the medicine they need for their personal medical use in accordance with State Law.”
Included is the ordinance's definition of cultivation, which it states “is the planting, growing, harvesting, drying, processing, or storage of one or more marijuana plants or any part thereof in any location.”
At the Feb. 26 Clearlake City Council meeting, the mention of “storage” in that passage of the ordinance was raised by numerous marijuana advocates, as well as Councilman Bruno Sabatier, as a concern as it related to possessing the drug.
At that time, Jones explained that the language – including the reference to storage – was part of an accepted definition that has been used by other cities.
In a written statement, Elford called the Clearlake ordinance “extremely cruel” as well as illegal.
“Both the state electorate and legislature have stated that medical marijuana patients may cultivate the medicine they need for their personal medical use,” he said. “This ordinance conflicts with both the spirit and letter of California law, so it should be struck down as preempted by those laws.”
If he doesn't win in Lake County Superior Court, Elford indicated in his statement that he intends to appeal the ruling to the First Appellate District.
That court is not bound by the Third Appellate District decision in Maral v. City of Live Oak, which upheld the Sacramento Valley city of Live Oak to ban medical marijuana cultivation. The city was sued by patient James Maral.
A year ago this month, the California Supreme Court denied a petition filed by Elford to hear the Maral case, upholding the Third Appellate District decision.
In a March 2014 statement on the Supreme Court’s petition denial, Cal NORML said that the Maral decision didn't preclude the possibility of future challenges to cultivation bans in another appellate district, but the organization noted that plaintiffs in such cases would face difficult odds in light of the Supreme Court decision not to hear the Maral suit.
The Spittler case is the third suit Elford has filed in Lake County on behalf of marijuana patients.
Currently, he is representing a group of plaintiffs who sued the county of Lake last year over former Sheriff Frank Rivero's warrantless searches of properties in the Clearlake Oaks and Spring Valley areas and abatement of marijuana grows found there.
Elford also sued the county of Lake in 2012 on behalf of Don Merrill and three anonymous plaintiffs over an interim marijuana cultivation ordinance, which resulted in a temporary injunction that delayed the ordinance's implementation to the start of 2013.
In the spring of 2013, the county filed a motion to dismiss the case, which was dropped that June. A local judge ruled later in the year that Merrill was not entitled to the more than $155,000 in legal fees that court documents indicated he was seeking.
In related news, a signature gathering effort has reportedly been under way since the city of Clearlake's marijuana cultivation ordinance was passed in order to place a referendum on the city ballot.
Phillipe said she was notified by referendum proponents of the effort. She said they have until 5 p.m. Thursday, March 26, to submit the necessary petitions.
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.
031915 Spittler v. City of Clearlake