Benno v. Shasta Cnty.

• Decision Date: 31 August 2021
• Docket Number: 2:16-cv-01110-TLN-DMC
• Court: U.S. District Court — Eastern District of California
• Parties: JAMES MICHAEL BENNO, JACOB DANIEL BENNO, LOGAN WAYNE BENNO, MARCIA JONES, and RICHARD YOUNG, Plaintiffs, v. SHASTA COUNTY, CALIFORNIA; THOMAS BOSENKO; DALE FLETCHER; TOM BARNER; LESTER BAUGH; and DOES 1 to 10, Defendants,

JAMES MICHAEL BENNO, JACOB DANIEL BENNO, LOGAN WAYNE BENNO, MARCIA JONES, and RICHARD YOUNG, Plaintiffs, v. SHASTA COUNTY, CALIFORNIA; THOMAS BOSENKO; DALE FLETCHER; TOM BARNER; LESTER BAUGH; and DOES 1 to 10, Defendants,

No. 2:16-cv-01110-TLN-DMC

United States District Court, E.D. California

August 31, 2021

ORDER

TROY L. NUNLEY, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Shasta County's (the “County”) Motion to Dismiss.^[1] (ECF No. 32.) Plaintiffs James Benno (“James Benno” or “Benno”), Jacob Benno, Logan Benno, Marcia Jones and Richard Young (collectively, “Plaintiffs”) opposed the motion. (ECF No. 34.) The County filed a reply. (ECF No. 35.) For the reasons discussed herein, the Court GRANTS the County's Motion to Dismiss. (ECF No. 32.)

I. Factual and Procedural Background

This action is proceeding on Plaintiffs' First Amended Complaint (“FAC”), which asserts the County violated Plaintiff's constitutional rights under the Fourth and Fourteenth Amendments when it enacted various land use ordinances regulating marijuana cultivation and when it conducted raids on Plaintiffs' properties in Shasta County pursuant to “longstanding County customs.” (See generally ECF No. 29-1.)

A. Pre-Ordinance Allegations

James Benno “has been a vocal medical marijuana advocate in Shasta County” from 1997 to the present. (Id. at 7.) Benno alleges he began cultivating medical marijuana on his real property in Shasta County, California in 1997, and then began “collectively cultivating . . . [it] for himself and a group of patients” in 2004. (Id. at 5.) Former Plaintiffs Jessica Solano, Nicholas Bolton, and Walter and Jerilyn Carney also began cultivating medical marijuana on property in Shasta County in 2004 and 2009, respectively.^[2] (Id.) Plaintiffs allege no facts whatsoever to describe the manner or conditions in which they cultivated the marijuana, but simply claim it was done “pursuant to” the Compassionate Use Act of 1996 (the “CUA”), Cal. Health & Safety Code § 11362.5, and the Medical Marijuana Program (the “MMP”), Cal. Health & Safety Code §§ 11362.7-11362.85. (See id.)

B. 2011 Ordinance

On December 13, 2011, the County enacted an ordinance permitting indoor and outdoor cultivation of marijuana, subject to certain restrictions (“2011 Ordinance”).^[3] (ECF No. 9 at 4-14.) Prior to the 2011 Ordinance, the County had no regulations specifically addressing the cultivation of medical marijuana in Shasta County. (Id. at 4.)

The County's intent in creating the 2011 Ordinance was to regulate medical marijuana cultivation (as permitted under the CUA and MMP) and “to accommodate the needs of Qualified Patients and their Primary Caregivers” while mitigating potential adverse effects on surrounding areas and persons. (ECF No. 9 at 5-6.) To that end, the 2011 Ordinance incorporated definitions set forth under several code sections, including the CUA and MMP, and restricted marijuana cultivation to the legal residences of qualified patients and/or their primary caregivers.^[4] (ECF No. 9 at 8-9.) With respect to permitted cultivation sites, the Ordinance further set forth regulations pertaining to the location and size of the cultivation site; type of property on which cultivation was permitted; fencing and other structural and security requirements; and prohibitions of cultivation sites located near certain premises (such as schools, public parks, child care centers, churches, the property lines of neighboring private residences, and areas where the cultivation would be visible to the public). (Id. at 9-12.) The 2011 Ordinance additionally cautioned that it was “not [to] be construed to protect Qualified Patients, Primary Caregivers or any other person from prosecution pursuant to any laws that may prohibit the Cultivation, sale, distribution, possession and/or use of controlled substances, or to authorize conduct that is unlawful under state or federal law, ” and expressly noted the cultivation, sale, possession, distribution, and use of marijuana remained unlawful under federal law. (Id. at 12.) Finally, the 2011 Ordinance provided that any marijuana cultivation not in conformance with the Ordinance's provisions would be declared a public nuisance and abated “by any means available by law to prevent public nuisances.” (Id. at 9.)

“[I]n reliance on the existence of the 2011 Ordinance, ” James Benno purportedly relocated in early 2013 to a property on Hopekay Lane in unincorporated Shasta County to establish an outdoor marijuana cultivation. (ECF No. 29-1 at 5, 10.) Plaintiffs allege Benno “expended significant money, time and labor” leasing property and preparing the site for outdoor cultivation, “including, but not limited to: i) clearing all debris from the rented property[;] ii) purchasing materials and constructing a 6 foot wood fence (100 x 150 ft) and affixing a 2 x 8 fiberglass barrier atop; iii) purchasing materials and constructing 4 x 4 wood pallets; iv) purchasing and preparing planting pots; [and] v) relocating 100 yards of soil [Benno] prepared for growing the medical marijuana plants.” (Id. at 10.)

Plaintiffs identify two raids executed in Shasta County after enactment of the 2011 Ordinance which they allege were performed without valid warrants:

1) In or around September 2013, unidentified employees of the Shasta County Sheriff's Department (“Sheriff's Department”) and Code Enforcement ordered the removal of approximately 68 medical marijuana plants from the Shasta County property on which Jessica Solano and Nicholas Bolton were cultivating medical cannabis. (Id. at 3, 6.)

2) In or around September 2013, unidentified employees of the Sheriff's Department and Code Enforcement raided the Shasta County property on which Walter and Jerilyn Carney were cultivating medical cannabis and destroyed approximately 96 medical marijuana plants and unspecified personal property. Walter and Jerilyn Carney were arrested by unidentified employees and held in jail for three days. (Id.)

C. 2014 Ordinance

On January 28, 2014, finding the provisions of the 2011 Ordinance to be “inadequate to control the negative impacts of marijuana cultivation” and noting additional risks and adverse impacts associated with marijuana cultivation, the County enacted a subsequent ordinance amending the entirety of the 2011 Ordinance and the County Code section pertaining to “accessory buildings and uses, ” as well as portions of the County Code section regarding “special uses” governing properties in Shasta County (“2014 Ordinance”).^[5] (ECF No. 9 at 16-28.) Importantly, the 2014 Ordinance banned all outdoor marijuana cultivation and explicitly limited cultivation to areas “within a detached residential accessory structure affixed to the real property (a) that meets the definition of “Indoor, ” or “Greenhouse, ” (b) that is located on the same Premises as the Residence of a Qualified Patient(s) or Primary Caregiver(s), and (c) that complies with all of the provisions of the Shasta County Code relating to accessory structures . . . .” (Id. at 22.) As to indoor cultivation, the Ordinance set forth specific requirements regarding the location of cultivation, screening and security structures, maximum permissible power output, water sources, filtration and ventilation systems, and the number of marijuana plants pertaining to permissible indoor cultivation. (Id. at 22-27.) Specifically, the 2014 Ordinance limited cultivation to no more than 12 marijuana plants on any premises, “regardless of the number of Qualified Patients or Primary Caregivers residing at the Premises or participating directly or indirectly in the Cultivation.” (Id. at 23-24.) Finally, the 2014 Ordinance included a misdemeanor penalty clause which provided that any person in violation of the Ordinance was guilty of a misdemeanor. (Id. at 25.)

After enactment of the 2014 Ordinance, Plaintiffs identify two additional raids executed in Shasta County which were allegedly performed without valid warrants:

1) On May 20, 2014, unidentified employees of the Sheriff's Department and Code Enforcement raided James Benno's property. During the raid, approximately 99 medical marijuana plants were seized/destroyed, approximately 100 yards of soil was removed, and unspecified personal property was damaged and destroyed. Unidentified employees arrested James Benno, Logan Benno, and Jacob Benno. James and Logan Benno were held in jail for approximately 60 days and Jacob Benno was held for approximately 45 days. (ECF No. 29-1 at 5, 7, 9.) Plaintiffs contend James Benno was specifically targeted for a raid on his property “as a result of his medical marijuana advocacy and message.” (Id. at 7.)

2) On or around May 1, 2016, unidentified deputies from the Sheriff's Department entered the property of Josh Hancock without a warrant, but the FAC does not indicate any further details. (Id. at 6.)

D. Policy-Related Allegations

With respect to the raid on James Benno's property, Plaintiffs contend unspecified employees of the Sheriff's Department “intentionally omitted facts [from the warrant affidavit] that would indicate” the marijuana cultivation site was “in conformance with state and local law.” (Id. at 7, 18.) No. particular facts or circumstances are identified. Plaintiffs further maintain that during the Benno raid, the Sheriff's Department “failed and refused to make a genuine and fair effort to determine” if the cultivation site was in conformance with state and local law. (Id. at 7- 8.) More specifically, Benno alleges the County employees failed or refused to consider his medical marijuana patient written recommendations; contact any of the patients; test the marijuana for THC, CBD or other cannabinoids to confirm its medicinal purposes, or otherwise permit Benno to show...