In the City of Sacramento, it is legal to cultivate cannabis (which term can be used interchangeably with "marijuana") at home. However, there are strict limits on an individual's right to cultivate cannabis, and if those limits are exceeded, whether though the number of plants being grown or the manner in which they are being grown, the person cultivating cannabis in their home or the owner of the premises, can find themselves subject to significant administrative penalties, civil penalties and other unwanted government action.
There is a clear distinction made between the cultivation of cannabis as a business, which must be pursuant to a permit issued by the City of Sacramento, and the residential cultivation of cannabis, which does not require any sort of permit. For the most part, individuals who find themselves facing penalties for cannabis cultivation are those that are subject to the residential cannabis cultivation laws. These laws were established by city ordinance, passed in 2018, which sets the limits of what is allowed, and what the penalties are if those limits are violated.
In simplest terms, all outdoor cannabis cultivation is illegal in the City of Sacramento. In a personal residence, however, up to 6 marijuana plants can be grown at any one time, regardless of how many people reside in the residence. Anyone growing cannabis in their residence must comply with a number of requirements aimed at avoiding or mitigating potential nuisances from affecting their neighbors and their community.
If a person grows more than 6 plants in a residence at any one time, they can be subject to an administrative penalty that increases by $500.00 for each cannabis plant in the residence, in excess of 6. Because the administrative penalty aggregates, if a person grows a large number of plants in the residence, the administrative penalty can be exorbitant, easily reaching the hundreds of thousands of dollars.
A particularly frightening aspect of the law is that the administrative penalties can be applied to property owners who rent out their properties, or other individuals in similar sudations, even if they have no idea that cannabis is being cultivated on their property.
Cultivation - Defined:
Marijuana cultivation is generally thought of as growing marijuana plants. While growing the plants certainly qualifies as cultivation, under the definition adopted by the City of Sacramento, cultivation also encompasses any activity that is involved in preparing marijuana for consumption. This includes such activities as drying, curing and processing of marijuana. Drying or curing of marijuana is fairly self-explanatory. Processing can involve such things as milling, extracting concentrates (i.e., hash oil) and preparing edibles. So, even if an individual is not planting, growing or harvesting marijuana on their premises, they can still be subject to Sacramento's marijuana cultivation laws if they are in possession of marijuana for purposes of preparing it for consumption.
The local law which enacted the portions of the Sacramento City Code that allow for administrative penalties for residential marijuana cultivation is Ordinance No. 2018-0009, adopted and enacted by the City Council of the City of Sacramento.
The Ordinance modifies sections 5.150.530 and 8.04.100, as well as chapter 8.132 of the Sacramento City Code. These modifications provide the framework for the permissible cultivation of marijuana, for the violations of the City Code relating to the cultivation of marijuana, and for the imposition of penalties, including administrative penalties.
Sacramento City Code Section 5.150.530:
Section 5.150.530 deals only with the issuance of permits for cannabis cultivation businesses, and specifically does not deal with residential cultivation of marijuana. It provides for three different classes (A, B and C) of business permits, which allow for indoor cultivation sites of up to 5,000, 10,000 and 22,000 square feet, respectively.
Sacramento City Code Section 8.04.100:
The Ordinance makes only one minor change to section 8.04.100, which section deals with the designation of properties as nuisances. In short, the section now designates any property that violates chapter 8.132 as a nuisance.
Sacramento City Code Chapter 8.132:
The bulk of the Ordinance deals with changes to this chapter, which covers the residential cultivation of cannabis. It sets the limits of what is allowable without a business permit, defines the parameters for cultivating in a private residence, determines what behavior and activities constitute a violation of the City Code, sets the penalties for a violation and describes the abatement remedies available in the case of a violation.
There are 6 specific, sequential sections in chapter 8.132 that deal with residential cannabis cultivation, section 8.132.010 through 8.132.060. Each of them addresses a different aspect of the issue.
The first section of chapter 8.132 really only describes the intent of, and purpose behind, the chapter. Essentially, it states that the purpose of the local law is to protect the health, welfare and safety of the city's residents by only allowing cannabis cultivation by permitted businesses and in private residences.
However, there is some language in this section that sheds light on the City's purpose behind its regulation of cannabis cultivation, and why it imposes administrative penalties in a manner that can result in exorbitant penalties being applied in some cases.
Basically, the section states that it applies administrative penalties that increase because of the potential monetary value of marijuana plants, which can be several thousand dollars each, as well as to achieve the punitive effects it believes can deter individuals from violating the law.
The section also indicates that it does not intend to interfere with an individual's right to legally obtain and use marijuana, or to criminalize that behavior. It also does not intend to legitimize illegal use or cultivation pursuant to state, federal or local laws.
This section contains the relevant definitions for Sacramento's cannabis cultivation laws. It describes cultivation as the growing, planting, harvesting, processing or drying of any part of a marijuana plant. It also describes what type of residential structures where cannabis may be cultivated, which the law refers to as an "allowable structure." Specifically, an allowable structure is one that is both secure and fully-enclosed. It must comply with the Sacramento City Building Code and the Sacramento Planning and Development Code. It specifically disallows structures with transparent walls or structures enclosed with plastic sheeting. In other words, typical residences are allowable structures, but structures such as greenhouses are not allowable. It also defines the term "outdoor" as anywhere that is not inside an allowable structure. Under the City Code it is illegal, in all cases, to cultivate cannabis outdoors.
The other significant definition in this section is the definition of a "cannabis plant." As described in a later section, a residence may not grow more than 6 cannabis plants at any one time. While it may be reasonable to assume that the 6-plant limit applies only to mature plants; based on the definition contained in this section,that is not the case. Under the definition, a cannabis plant applies to both mature and immature plants, as well as seedlings.
This section, while by far the shortest in the chapter, contains what may be the most important, and controversial, language.
In short, it prohibits (i.e., makes illegal) the cultivation of cannabis, except as allowed by Sacramento City Code Chapter 5.150 (cannabis business with a permit) and Section 8.132.040 (residential cultivation.)
The prohibition extends to owning, leasing, occupying, having possession of or being in charge of any property where cannabis is being cultivated.
The critical, and likely controversial, language in this section allows for an individual to violate the law, whether "knowingly or unknowingly." In particular, this language allows a person to be in violation of the law, and face criminal and civil penalties, even if they are unaware that cannabis is being cultivated on a property.
There are a number of situations where an individual may not know about cannabis cultivation on a property, whether they own it, lease it, occupy it or have possession or responsibility for it. For example:
- An owner of a residence rents it out to someone else, who unbeknownst to the owner, begins to cultivate cannabis in a manner that violates the law; or
- An individual renting a property with a large, poorly-fenced backyard is not cultivating cannabis, but their next-door neighbor is going onto their property to grow outdoor marijuana plants; or
- An individual occupying a rented room in a house is not themselves cultivating marijuana, but one of their roommates is growing marijuana plants, in excess of what the law permits, in a detached garage or in a greenhouse to which the the non-cultivating occupant does not have access.
Because the Sacramento City Code applies to individuals connected to a property, and deems them to be violating the Code by cultivating cannabis, whether or not they took part in it, and whether or not they have any idea that a violation has occurred; substantial questions of due process and related rights are implicated. At present, these issues have not been fully addressed by the courts, so it is somewhat uncertain just how these laws will be applied to individuals who "unknowingly" violate the law. If you find yourself in this kind of situation, the best thing you can do is immediately seek legal advice from an attorney experienced in these matters.
This is the section that describes how an individual may legally cultivate cannabis in their residence, and the limits placed on their right to do so.
There are a number of different requirements and limits placed on the right to residential cultivation of cannabis, but in short;
- Cannabis may only be cultivated indoors, in a single room in the residence;
- No more than 6 plants may be cultivated at one time;
- All equipment used in the cultivation must otherwise comply with the City Code;
- Alterations to the structure of the residence to allow for cultivation must comply with the building and fire and safety codes;
- The cannabis must not be detectible by sight or smell from outside the residence;
- the cultivation must not create hazardous conditions or waste, and must not create excessive light, heat, noise, dust, traffic, smoke or anything else that can be disturbing to the neighborhood in which the residence is located;
- The room where cannabis is grown must be kept locked at all times it is not occupied; and
- The cultivation must be done in a manner that complies with all other local and state laws.
This section is where the civil and administrative penalties for illegal cannabis cultivation are found, as well as declarations that such violations are a nuisance, that anyone who commits a violation is guilty of a misdemeanor, and that the City's remedies for violations are cumulative (meaning they can pursue any remedy, all remedies or any combination of remedies.)
Civil penalties for violations are set between $250.00 and $25,000.000 for each day a violation continues.
Administrative penalties are set at $500.00 per marijuana plant in excess of the number of allowed plants. In the case of plants in an allowable structure, that number is six. Outside of an allowable structure, that number is zero.
This final section applies to the City's right to abate illegal cannabis cultivation. It begins by describing a number of reasons why illegal cannabis cultivation is a bad thing; it leads to crime, such as burglary and home invasion, can pose fire hazards and risk of failure of electrical systems and can pose public health hazards from the use of solvents or the production of hazardous waste. The section then goes on to recognize that illegal cannabis cultivation is a public nuisance.
Finally, the section recognizes that illegal cannabis cultivation can trigger destruction, forfeiture and seizure provisions of the California Health and Safety Code. In other words, if an individual is illegally cultivating cannabis, their marijuana plants and products can be seized or destroyed by local or state authorities, and their residence may be subject to forfeiture proceedings.
Amount of Administrative Penalty:
The real danger for individuals under Sacramento's cannabis cultivations laws is in the administrative penalties that can be assessed. The law imposes a penalty of $500.00 for each plant beyond what is allowed by law. The amount of the penalty aggregates, meaning that an additional $500.00 will be applied for each additional illegal plant.
In cases where an individual has only one or two plants beyond what the law allows, the administrative penalty can be burdensome ($500.00 to $1,000.00) but will generally be manageable. However, in the case of what is commonly referred to as an illegal "grow house," where several hundred plants are grown simultaneously (excluding permitted cannabis business operating within the limits of their permits;) the administrative penalty can be crushing, easily reaching into the hundreds of thousands of dollars.
For example, if an individual is growing 100 plants in their residence and gets caught doing so, the amount of the administrative penalty will be $47,000.00 (94 x $500.00.) If that individual is instead growing 200 plants, the administrative penalty is $97,000.00 (194 x $500.00.) At 300 plants, the penalty is $147,000.00, etc.
Unknowing Cultivation of Cannabis:
Under the Sacramento City Code, an individual can be found to violate the cannabis cultivation laws, and be subject to administrative penalties, even if they did not take any part in the actual cultivation of marijuana, and/or had no idea that it was being cultivated in property they own, lease, have possession of or otherwise control.
There are a number of situations where this can come into play. Just a few examples are:
- If a person owns a rental property, and leases it out to another person, who unbeknownst to the owner, cultivates a large number of cannabis plants, the owner can be subjected to administrative penalties;
- If a person owns a vacation home, and has a caretaker who grows cannabis on the property, the owner can be held responsible;
- If an individual leases a property, but sublets all or a portion of the property to someone else, and that person cultivates cannabis on the property; and
- If a person owns a vacant lot and some third party trespasses onto the property and uses it to grow marijuana plants.
Under the Code, it does not matter whether or not the owner, occupier or person in possession or control of the property is aware that cannabis is being cultivated on the property. If too many plants are being grown in a residence, or are being grown outside of an allowable structure, the owner, occupier or person in possession or control of the property will be held responsible, and subjected to administrative penalties which can be exorbitant, depending on the number of plants being grown.
However, just because the law does not distinguish between knowing and unknowing cultivation of cannabis, that does not mean that an individual who does not know, and does not have any reason to know that cannabis was being cultivated on their property will necessarily be forced to pay administrative penalties that can easily reach the hundreds of thousands of dollars.
Challenging the Imposition of Administrative Penalties:
If an individual is assessed an administrative penalty for cannabis cultivation, there are several avenues which may be pursued in order to get the administrative penalty either wiped out or reduced.
Appealing an Imposed Administrative Penalty:
There is an appeals process for challenging the imposition of administrative penalties, governed by Sacramento City Code section 1.28.010(D)(4). It requires submitting an appeal request form to the Sacramento City Clerk's office within 20 days of service of the administrative penalty order, submitting a statement of the grounds for the appeal and paying an administrative fee. You then have an appeal hearing, presided over by a hearing examiner, who is not a city employee, but is appointed by the city council. Unfortunately, at present, most appeals to the Hearing Officer have resulted in the penalties being upheld. Nevertheless, it is important to have legal representation at this hearing because your attorney will know what information should be presented to the Hearing Officer. Creating the proper record at the administrative hearing level is very important, because any further appeal will be based on the administrative record that is created at the hearing.
Petition for Writ of Administrative Mandamus:
If your appeal is denied, the individual being fined can go to court and file what is called a Petition for Writ of Administrative Mandamus. While it is not absolutely necessary for a person to hire an attorney to file the petition, it will almost always be highly advisable to have an experienced attorney representing you, especially if you are facing a large administrative penalty. In filing this petition, the individual is asking the court to order the city to take some action, whether that is wiping out the administrative penalty, or simply reducing the amount.
This is not a well-settled area of the law, and the precedent for it is still being litigated in the courts. A case of this nature will very likely require more than simply claiming you were unaware of cannabis cultivation on your property. Because of that, having an experienced attorney who can pursue every angle, and make the most impactful arguments will likely give you the best chance of avoiding having to pay a large administrative fee for something you took no part in.
De Novo Review in Superior Court:
Another alternative means of challenging an administrative penalty is through a procedure provided for under California Government Code section 53069.4.
Within 20 days after a final decision on the administrative penalty (in other words, within 20 days after a decision on your appeals hearing, anyone challenging that final decision can seek review of that decision by the Superior Court in an appeal which is treated as a limited civil case.
One benefit of this type of review, is that the court will decide the appeal de novo, meaning that it will make its own determination on the case, independent of any of the prior decisions made to that point. However, the court will accept as evidence, the city's file on the administrative penalty, including the notice of violation, which will be considered as some evidence of the facts it contains.
Protection for Landlords:
In the specific case of a property owner (i.e., a landlord) who rents property to a tenant, the same Government Code section (53069.4) that provides for a de novo review of the denial of an appeal, also provides a level of protection for landlords under certain circumstances. Specifically, section 53069.4(a)(2)(C) provides that if three circumstances are present, a landlord must be given a reasonable time period, after receiving notice of a violation, to remedy or correct a violation before administrative penalties can be imposed. Those circumstances are:
- A tenant possesses the property where the violation has occurred; and
- The landlord (or their agent) can prove that the tenant's rental agreement prohibits cannabis cultivation on the premises; and
- The landlord did not know that cannabis was being cultivated on the premises, and did not have actual notice of the cultivation.
If all of those conditions are present, the property owner must be given a reasonable amount of time, after being served with a notice of violation, to remedy any violation; whether by removing cannabis plants from the property, evicting the tenant along with their cannabis plants, or otherwise.
Possible Defenses to Imposition of Administrative Penalties for Cannabis Cultivation:
Because this is an unsettled area of the law, there are a number of different defenses that can be raised, but it is not yet certain what effect, if any, each potential defense may have. Some defenses may be more viable than others, and some may be available in some cases, but not others. An experienced attorney is probably your best shot at raising the defenses that have the highest probability of success, a few of which are:
- Improper application of a property's owner's duty to inspect their property;
- A property owner's inspection of their property would not have resulted in the discovery of cannabis cultivation. For example, the cannabis cultivation began immediately after an inspection of the property;
- The factual innocence of the property owner (i.e., that the owner did not know, and had no reason to know that cannabis was being cultivated on their property) does not warrant what amounts to a civil forfeiture of assets;
- The administrative penalties, as applied to a property owner, or other person in possession of property who was not aware of cannabis cultivation on their property, amounts to a violation of that person's due process rights under the U.S. and California Constitutions; and
- Based on the facts of a particular case, the amount of the administrative penalty is excessive.
While the imposition of massive administrative penalties under Sacramento's cannabis cultivation laws is an unsettled area of the law, such that it is not yet clear whether such penalties that reach the level of hundreds of thousands of dollars can actually be imposed and collected; there is at least one recent U.S. Supreme Court case, Timbs v. Indiana (decided February 20, 2019,) that sheds some light on the issue in the context of the U.S. Constitution's and all 50 state's constitution's prohibition on excessive fines.
While the case does not directly address the issue of what constitutes an excessive fine, it does provide some guidance on that issue. It notes that throughout history, going all the way back to the Magna Carta in 1215, the prohibition on excessive fines dictates that fines should (1) be proportionate to the offense committed, and (2) should not exceed an individual's ability to pay them without serious hardship.
The court also notes that the imposition of fines should be subject to scrutiny because they are a source of revenue for the government. Because of that, the government has an incentive to impose them.
Applied to the imposition of administrative penalties for cannabis cultivation, it is not too much of a stretch to see how the argument can be made that penalties which reach up to the hundreds of thousands of dollars, particularly in cases of "unknowing" cultivation of cannabis, can violate the constitutional prohibitions on excessive fines, and provide a defense to the imposition of those penalties.
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