I’m often asked to advise on enforcement-related issues because of my past life as a criminal defense litigator, but enforcement is my least favorite subject. The reason is simple: conducting our lives based on the stringency of potential enforcement is NOT a viable business model. Although it may take a few years for unregulated grows to get pushed out (or worse, get pushed indoors), one thing is clear: the only meaningful path forward is strict compliance with state and local law.
But since unregulated activity remains a hot topic, here’s a quick and dirty overview of the new world of enforcement:
There is NO legal protection for unregulated commercial cultivation.
The Collective and Cooperative as we knew them since 2004 are DEAD. In fact, this is the first season since the Compassionate Use Act in 1996 where there is no clear defense to unlicensed commercial cultivation. While unregulated commercial activity is a straight misdemeanor, conspiring to commit a misdemeanor is a felony, as is misdemeanor cultivation occurring in conjunction with an environmental crime.
Also, as this is the first season under the new rules, it’s within the realm of possibilities we see aggressive criminal enforcement on unregulated mom-and-pop farms. It is also possible law enforcement take a more measured approach by focusing on cartel grows, environmental degraders, and interstate interdiction.
We just don’t know.
The fines/penalties are higher than ever and some properties may be foreclosed.
The biggest change to the penalty structure since last season came from a quietly-made change to Government Code § 53069.4, which used to require growers got a “reasonable time” to correct alleged nuisances before fines were imposed. That law changed this past January to allow IMMEDIATE IMPOSITION OF FINES for illegal cannabis cultivation.
Those fines can be levied as a lien against the property if left unpaid and some Counties even have the authority to foreclose on the property to recoup that money.
Prosecutors and City/County attorneys can seek penalties of three times the license fee for each violation.
The state, the counties, and the cities are all authorized to bring a case against unregulated operators for civil penalties of up to three times the amount of the license fee for each violation. (Business & Profession Code § 26038.) For two unregulated greenhouses, the fine could be 60-freaking-thousand-dollars!! (at $20k yearly fees x3).
While these massive local and state penalties are subject to constitutional protections, you don’t wanna be the case that tests the constitutional limits. It ain’t fun.
The State can kick you out of regulated licenses you’re involved with anywhere in the State.
Getting dinged for unlicensed commercial cannabis activity can kick you out of the state’s licensing program for 3 years, even licenses in other jurisdictions that are totally unrelated. (Business & Professions Code § 26057(b)(7).) Local codes may also kick you out of their program, in some cases arguably for life.
Environmental crimes will be enforced like never before.
Environmental crimes are embarrassing because you’re getting called out for hurting Mother Earth, so there’s not love for folks charged with these crimes. Here are just a few:
- The Water Boards: Knowing or negligent discharge of a pollutant into water without a permit can reap fines up to $50,000 per day for knowing violations, as can illegal water diversion. (Water Code §§ 1052(a), 13387; Penal Code §§ 374.2, 374.8.)
- Department of Fish and Wildlife: Disposal of trash or “any substance that is deleterious to fish, plant life, mammals, or bird life” into waterways, or failing to obtain an LSAA for eligible water diversions can also bring about fines up to $20,000 per day! (Fish & Game Code §§ 5650, 5652, 1602, 12025(b)(2).)
- CalFire: Failure to obtain a Timber Harvest Plan or a waiver can result in a misdemeanor or civil penalties up to $10,000 per day, per violation. (Forest Practice Rules, 14 C.C.R. §§ 4601, 4601.1.)
Unregulated farmers are subject to federal enforcement for the first time since 2013.
Keep in mind that unregulated farmers do not have protection from federal enforcement under Rohrabacher-Farr Amendment (now called the Joyce Amendment), which prohibits the DEA from coming after state-legal cannabis businesses.
If you don’t have a license, you arguably lose that protection, which is a serious weakness in light of this administration’s uneven take on cannabis thus far.
The penalties will only increase over time.
The Governor’s last incarnation of the trailer bill would imposes fees on non-license-holders of up to $30,000 per violation. So fees for unregulated activity are likely to go up, not down, as we move forward.
I hear a lot of people saying they are going to keep going without a license because “they’ve always done it this way.” But very few folks were growing in these hills prior to 2004. In fact, we’re essentially back in the pre-1996 era for the governing laws and almost no one was out there before 1996. So, no, you have not done this before. No one has.
Unregulated sungrowers (i.e. outdoor and light-dep) are at the greatest risk of law enforcement intervention because they are literally rooted in the earth, sitting ducks in clear view of ever-present helicopters. That means mom-and-pop farms will take the brunt of the criminal enforcement this summer, despite the wild proliferation of far more pernicious activity in garage/warehouse grows, massive cartel grows, and unregulated deliveries selling pesticide-ridden cannabis to unsuspecting consumers.
In closing, the biggest risk of unregulated cultivation is the risk of the unknown. While some farms may slip through this season, enforcement will only increase in the coming seasons and the word is NOT out in the community about how nasty this season could be. But it is clear that large scale unregulated cannabis farming is a thing of the past. As Jerry Garcia says, its time to move along.
Much respect, ~hb
Musical meditation for this post: Jerry Garcia Band: Ain’t No Bread in the Breadbox .