Posted by: Patricia Salkin | January 12, 2021

CA Appeals Court Holds that County May Not Seize Plants in Dispensary’s Possession that Exceed the Allowable Number of Marijuana Plants Under Local Ordinance

This summary appears in the Perkins Coie Land Use and Development Law Briefing and is posted with permission of the California Land Use Attorneys with Perkins Coie, LLP

The court of appeal held that a medical marijuana dispensary could recover its marijuana plants seized
by law enforcement, finding that violation of the ordinance did not render medical marijuana plants
“contraband” per se and subject to seizure.

Under established caselaw, local governments may by zoning ordinance prohibit medical marijuana
dispensaries within their jurisdiction. In this case, the County prohibited cultivation of more than 99
medical marijuana plants anywhere within the county limits. Citing violation of this ordinance, local law
enforcement seized approximately 2,000 medical marijuana plants from a dispensary.

The court held that the County was required to return the seized plants, reasoning that a local
ordinance restricting cultivation of medical marijuana plants does not change the legal status of medical
marijuana under state criminal law (nor could it, as any attempt to do so would be preempted).
Possession of medical marijuana by personnel qualified under state law is not a crime. Thus, marijuana
possessed for medical purposes in compliance with state standards is not contraband and therefore not
subject to seizure. The court noted that although the concept that marijuana is not contraband (e.g., not

illegal under state law in certain circumstances) is relatively new, local governments are bound by state
law and cannot withhold property legally possessed under state law.

Granny Purps, Inc. v County of Santa Cruz, 53 Cal. App. 5th 1 (2020)

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