To a certain extent, the possession of marijuana, whether for medicinal or recreational use, is now legal in California as a result of the passage of Proposition 64 and the Adult Use of Marijuana Act ("AUMA"). However, that does not mean that you cannot run afoul of California or federal law when it comes to marijuana.
If you are an adult, over the age of twenty-one, you can legally possess up to one ounce of marijuana, or up to eight grams of a concentrated marijuana-derived substance such as hash oil. You can also cultivate up to six marijuana plants at your personal residence.
If you go beyond that, or are under the age of twenty-one; you can still be found criminally liable for marijuana possession. In particular, if you are in possession of marijuana for purposes of selling it, or are cultivating it in an amount above what California or local law permits, you are committing a crime.
As to businesses that grow and sell marijuana in larger amounts than what is allowed for personal use, the AUMA provides for state and local level licensing of businesses to engage in the cultivation and sale of marijuana on a scale in excess of that which is allowed for personal use.
Under the AUMA, local governments are permitted to set their own standards, and permit or restrict the possession and use of marijuana within the larger framework of the state-level guidelines. So, even if you are within the limits of the AUMA, you can still be committing a crime if you are in a locality that is more restrictive.
In Sacramento, the city passed a revision to the ordinance that allows for the cultivation of marijuana in a person's residence in August of 2017, that went into effect that September. It strictly limits the number of marijuana plants a person can grow in their residence and imposes a number of other restrictions aimed at preventing collateral harm that can stem from a person choosing to cultivate marijuana in their home. Violations of Sacramento's limitation on residential cultivation of marijuana can result in heavy fines and criminal conviction. In an odd twist, even if a tenant is growing marijuana, and the landlord is unaware of the tenant’s activities, the City is still fining the landlord for the marijuana cultivation. The fines are $500 for each plant over the allowed limit of 6 plants per household. As a result, we are seeing cases where the landlords are being fined hundreds of thousands of dollars. If you are a landlord and have received such a fine, you should call this office immediately so that we can help you protect your rights.
Additionally, there is a fair amount of tension that still exists between California and federal law when it comes to the possession and cultivation of marijuana. This tension has only intensified over the last couple of years as the U.S. Justice Department, under its current leadership, has decided to enforce federal law as it pertains to marijuana more strictly than it had in years preceding.
Is Marijuana Possession Still Illegal Under Federal Law:
The short answer is yes, it is still illegal. However, there are no clear indications of how federal law can or will interact with California law in regard to marijuana possession. The situation is a murky one, to say the least.
Under the Obama administration, the federal government decided to take an hands-off approach to marijuana possession, and essentially left the issue of enforcement to the states. Under the current administration, Attorney General Jeff Sessions decided to change course and indicated that the federal government would potentially prosecute for marijuana possession if the prosecutors in the state decide to do so.
So, while it is technically possible for the federal government to prosecute for marijuana possession, even if a person is in compliance with California law, there are certain practical considerations that make that possibility somewhat unlikely in most cases.
The federal government does not have what is called a general police power, which is why there are no national police forces. Law enforcement on the federal level is limited to agencies such as the Federal Bureau of Investigation ("FBI,") Immigration and Customs Enforcement ("ICE,") and Drug Enforcement Agency ("DEA.") These agencies have limited resources, and do not generally have a presence in the public, as do local or even state-level police forces.
That is to say, it is highly unlikely that you would ever be stopped on the street by an FBI agent looking to see if you are in possession of marijuana. To the extent that these agencies are assisting in the prosecution of marijuana crimes, they tend to be more focused on large-scale cultivation and sales (i.e., drug trafficking) operations, and will generally not be involved in prosecutions for the personal possession and use of marijuana.
There is, however, one major exception to this. If a person is in possession of marijuana on federal property, it is possible they can be prosecuted. This includes federal buildings, federal courthouses, post offices, public airports and federal land (such as a national park.)
Federal Asset Seizure Programs:
One of the most damaging aspects of law enforcement, as it pertains to marijuana possession and cultivation is the impact of federal asset seizure programs. These programs are authorized by federal laws found in the United States Code; The specific parts of the code that cover asset seizure are 19 U.S.C. 1602-1619.
Under these programs, federal law enforcement officials, and in some cases, state and/or local officials can seize the assets of individuals or organizations if they believe those assets are being used to commit crimes.
In the context of marijuana possession and cultivation, this can typically include marijuana, cash, vehicles and real property (e.g., houses and apartments.) Law enforcement officials are authorized to seize the property and then destroy it (in the case of marijuana) or sell it at auction, with the proceeds going to fund further law enforcement operations.
Asset seizure programs are currently a highly controversial issue, with many of its critics arguing that there is a high potential for abuse, and a lack of necessary safeguards to prevent unjust seizures of private and real property.
One of the most controversial aspects of these programs is that they do not require the same standard of proof as does a criminal conviction. In order to be convicted of a crime, the defendant must be found guilty beyond a reasonable doubt. However, for law enforcement to seize a person's property, they only needs to show by a preponderance of the evidence that the property was being used to commit a crime. This means that even if there is insufficient evidence to convict a person of a crime, their property can still, potentially, be seized by the government.
The federal Justice Department, under Attorney General Jeff Sessions, has significantly increased their use of these programs as compared to the previous administration. Recently, there have been several high profile seizures of homes, including one operation that seized upwards of one hundred homes in the Sacramento area, which were alleged to be used as marijuana grow-houses run by Chinese organized crime syndicates.
As with most current federal enforcement of marijuana laws, asset seizure will typically only come into play in cases of large cultivation and sales operations, and will not typically be relevant to individuals who possess small amounts (i.e., amounts that are legal to possess under California law) for personal use.
Sacramento City Code Relating to the Cultivation of Marijuana:
The City of Sacramento previously permitted individuals to grow up to 400 square feet of marijuana plants in their residence, provided they were grown by a qualified patient for medical use, or by that patient's caregiver. Following the implementation of the AUMA, that limit was reduced to a total of six plants that could be grown in a residence, though the individual growing the plants no longer needed to be a patient or caregiver, growing the plants for medicinal purposes.
Residential cultivation of marijuana is controlled by Sacramento City Code chapter 8.132. Chapter 8.132.040(B) is the specific provision that limits the total number of marijuana plants in a residence to six, no matter how many people live in the residence.
There are a number of requirements that must be followed in order to grow marijuana in a residence:
- All marijuana plants must be contained in a single room in the residence (Chapter 8.132.040(A));
- No more than six plants total in a residence no matter how many people live there (Chapter 8.132.040(B));
- All equipment used, and all alterations made, to grow the marijuana must comply with city building a fire prevention codes (Chapter 8.132.040(C) and (D));
- Nothing indicating the growing of marijuana in the residence can be detectible by sight or smell (by an average person of average sensitivity) from beyond the property boundaries (Chapter 8.132.040(E) and (F));
- The cultivation must not create excess light, dust, heat, etc. that would typically disturb an average person of average sensitivity from beyond the boundaries of the residence (Chapter 8.132.040(G));
- The room where the marijuana is being grown must remain locked when it is not occupied (Chapter 8.132.040(H)) and
- The marijuana cultivation must otherwise comply with all state and local laws (Chapter 8.132.040(I))
If a person exceeds the limits imposed by Chapter 8.132, or otherwise violates the Sacramento City Code, they can be subject to heavy fines and criminal conviction.
There are two basic types of penalties that a person can face as a result of failing to comply with the Sacramento City code as it pertains to the residential cultivation of marijuana.
The first relates strictly to the number of marijuana plants being grown in a residence, and went into effect on September 29, 2017. The city will impose an administrative penalty of $500.00 for each marijuana plant found in a residence, beyond the six that are permitted. This penalty is pursuant to Sacramento City Code 8.132.050(E)(1). For example, if a person is growing one hundred plants in their residence, they can be subject to a penalty of $47,000.00 ($500.00 x 94.)
In addition to the above administrative penalties, a person who violates the City Code can be subject to a number of other penalties. These can stem from growing more than the allowed number of marijuana plants, or from other violations, such as those described in the previous list. Some of the penalties a person can face for violations are as follows:
- Having their residence declared a public nuisance (Chapter 8.132.050(B));
- Being found guilty of a misdemeanor (Chapter 8.132.050(D)); and
- Being subject to a civil penalty of $250.00 a day for each day a violation continues, up to a total of $25,000.00. (Chapter 8.132.050(C))
If a person is found guilty of a misdemeanor for their violation of the laws relating to cultivation of marijuana in a residence, they can face the following criminal penalties pursuant to City Code Chapter 1.28.020(A):
- A fine of between $500.00 and $1,000.00; and/or
- Imprisonment in a county jail for up to six months.
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