The Ninth Circuit Court of Appeal has reinstated a civil rights lawsuit against Humboldt County, California, that challenges the county’s practices in imposing punitive daily fines. It is the first time a federal appellate court has weighed in on local government’s enforcement of code violations involving cannabis farms.

The Court of Appeal decision

The decision, in Thomas v. County of Humboldt, comes after years of complaints by cannabis cultivators that local governments impose unfair fines for technical violations at licensed farms. That counties and municipalities have adopted and are enforcing large fines involving licensed properties is one of many reasons why increasing numbers of farms have given up their licenses and shut down completely or returned to the illicit market. This is hurting state efforts to bolster the legal market and suppress the illicit market for cannabis.

Lessons for industry and regulators

A takeaway from the decision is that local governments need to keep the goal of remediation in mind in establishing penalties, must be more reasonable in allowing cultivators to fix violations, and more flexible in decisions to impose fines and settling disputes. The decision should motivate county and city attorneys, and cannabis licensees and applicants, seek assistance from a mediator with expertise in the cannabis market and regulation. The courthouse might not now be as friendly a venue for local government as it has been in the past.

Most cannabis businesses that run afoul of local codes pay the penalties, no matter how unfair they might seem, because they can’t afford a long legal battle and the administrative and court processes are tilted against the property owner. Administrative hearing officers routinely uphold notices of violations and the penalties imposed by code enforcement officers. Writs of mandate brought against local government in state court, particularly in smaller counties, are extremely difficult to win.

Background on the Thomas case

What has made the Thomas case viable is that several plaintiffs banded together in a civil rights class action in federal court under 42 U.S.C. § 1983, alleging that Humboldt County’s penalties for cannabis abatement violate the Eighth Amendment’s Excessive Fines Clause.

Humboldt County established a schedule of daily fines for illegal cannabis cultivation of up to $10,000, with a minimum of $6,000. Upon receiving a notice of violation from the county, the party has 10 days to abate all violations, subject to an appeals process, during which penalties continue to accrue. Violations included not just the illegal cultivation of cannabis itself, but also any other violation that facilitates illegal cultivation of cannabis. The Thomas plaintiffs contended that the county issues violation notices with hefty fines based on imprecise data (such as satellite and drone photos) and for code violations that originated with previous property owners.

The lower District Court dismissed the lawsuit on the basis that the plaintiffs lack legal standing, because they had not, at the time of suit, paid any penalties. But the Ninth Circuit held that the plaintiffs had concrete injuries, providing standing, because they suffered emotional distress and had incurred expenses with engineers and attorneys as they attempted to abate the alleged violations and defended themselves in hearings.

Getting to the merits of the lawsuit, the Ninth Circuit held that the plaintiffs had plausible claims under the Excessive Fines Clause because the penalties were punitive, not remedial. The Ninth Circuit agreed with the plaintiffs that the fines were unconstitutionally excessive because (1) the notices were vague, often inaccurate, or involved violations that pre-dated the plaintiffs’ occupation of their properties; (2) lesser penalties could accomplish the same health and safety goals; and (3) the alleged offenses caused no harm beyond a technical lack of compliance with the county’s permitting regulations.

Humboldt provides for an administrative appeal before a hearing officer who determines whether a violation has occurred or continues to exist. The hearing officer can only reduce the penalty for a violation in limited circumstances and cannot reduce it to less than $6,000 per day. Although the Ninth Circuit did not explicitly address it in the Thomas decision, a property owner in most circumstances also can be forced to pay the county or municipality’s abatement costs and legal expenses — including those incurred in a subsequent writ of mandate proceeding in state court. The Ninth Circuit agreed that the Thomas plaintiffs had come under:

“immense pressure to settle due to the County’s issuance of ruinous fines, . . . its undue delay in providing hearings, its denial of permits while abatements are pending, and the cost the County imposes to prove one’s innocence.”

The Ninth Circuit found that Humboldt County’s fines were “clearly punitive, not remedial as argued by the County.” The fines could reach millions of dollars, and, in the case of one plaintiff, the fines dwarfed the value of her property. The appellate court was untroubled by the involvement of cannabis, which remains unlawful under the federal Controlled Substances Act:

“[I]t seems clear to us that lesser penalties could accomplish the same health and safety goals,” and “the offenses here have caused no harm beyond a technical lack of compliance with the County’s cannabis permitting regulations.”

The Thomas plaintiffs’ strategy pays off

The Thomas plaintiffs’ strategy of going to federal court was fraught, because the court could have just as easily declined to hear the matter under the illegality doctrine, but it paid off here; the Ninth Circuit not only considered the case but also disregarded the problem of whether the plaintiffs were entitled to any remedy under federal law.

The Ninth Circuit concluded by acknowledging that local government is “often at the forefront of addressing difficult and complex issues,” but it should use “flexibility” in decision making and “cannot overstep its authority and impose fines on its citizens without paying heed to the limits posed by the Eighth Amendment.”

Note: This post was first published January 6, 2025 on the Alger ADR Blog

Are Americans Shifting To Weed And Saying Goodbye To Cigarettes?

We live in a time when people are more health-conscious than ever.

For the first time in history, we’re seeing a downward trend in the consumption of cigarettes, especially among young adults and adolescents. Just a few decades ago, cigarettes were considered ‘cool’. The link between cancer and cigarettes were established by the 1950’s, though accepting that cigarette smoking was “bad” for you didn’t take root socially until around the late 1990’s.  

Now, we know that cigarette smoking is a dangerous, often fatal habit that leads to cancer, respiratory illnesses, and heart disease. According to the World Health Organization (WHO), over 8 million people die prematurely from tobacco use yearly.

In the results of a Gallup poll from early 2024, they found that more Americans are more likely to smoke weed than cigarettes, while young people are more than 5 times more likely to choose weed over tobacco. The poll found that 17% of Americans smoke weed, while 12% admitted to smoking cigarettes in the previous week. The more dramatic difference was observed among the 18-34 age range, where 26% admitted to consuming weed while only 5% of them still smoke cigarettes.

For the same poll, they also found that the older adults aged 55 and up were more likely to still smoke cigarettes compared to marijuana. “Americans’ reported marijuana smoking has more than doubled since 2013, when Gallup first added the question in its annual Consumption Habits survey,” explained Gallup. “That year, seven percent said they did,” they reported.

Improved Public Perceptions Leads To Healthier Choices

One can’t deny that there has been a massive shift in the increasing awareness of marijuana’s health benefits, as well as the dangers of cigarette smoking. This leads to changing public perceptions, better and more scientific research as well as clinical studies, and an improvement in the law.

The law, specifically, has been instrumental in mitigating the spread of cigarette use. For example, many governments worldwide have established strict no-smoking policies and placed a massive tax on cigarettes. Tobacco manufacturers are no longer allowed to freely advertise their product. All these have led to a downward trend in cigarette smoking habits and purchasing.

The proliferation of legal cannabis throughout North America, not just for medical use but also for recreational use has also contributed to a widespread cultural acceptance of cannabis, which has also improved the public perception of the drug. As we speak, it’s already become a part of society not just in North America but also in countries such as Thailand, several European nations, Uruguay, and Mexico to name a few.

In addition, people are also becoming more educated about the use of alcohol. While it may still be the most widely used intoxicant, its days me be numbered: there is a small yet growing number of people who are choosing to replace alcohol with weed, because of the sheer number of studies proving the dangerous link between fatal illnesses and alcohol. Not to mention that alcohol is linked to drunk driving and road fatalities, multiple different types of cancers, horrible hangovers, and so much more.

Even Gallup polls from as far back as 2022 revealed that people in the United States have already begun to smoke more weed than cigarettes. Gallup conducted the survey from July 5 through 26 of 2022. The results reveal that 11% of the population smoke cigarettes, while back in the mid-1950’s, 45% of Americans smoked them. Meanwhile, 16% of Americans reported that they smoke weed, and 48% tried it in the past. Back in 1969, just 4% of Americans smoked weed!

It’s clear that societal and cultural perceptions around both have changed dramatically. “Smoking cigarettes is on the decline and is most likely to become even more of a rarity in the years ahead,” explains Gallup Senior Scientist Dr. Frank Newport. “This reflects both public awareness of its negative effects and continuing government efforts at all levels to curtail its use,” he said.

Unfortunately, the Gallup poll also found that alcohol remains a popular substance for Americans. Despite the increasing studies being published right now that alcohol is a proven carcinogen, one can’t blame the population: it’s legal, easily accessible, and affordable for many.

 

Overall, it seems that the demand for wellness is slowly taking over. Wellness is no longer just a buzzword or a trend; it’s a real pursuit that more, especially young people, are seeking. And cannabis fits very well into that picture: whether CBD or THC, the components of marijuana have proven beneficial for the mental and physical health of people, across a wide age group. From pediatric CBD applications to therapeutic uses for the elderly, cannabis can be beneficial for many people.

It’s so easy to see why thousands of young adults commonly include cannabis as part of their everyday wellness regimen – the same generation that have shunned cigarette smoking for good.

Conclusion

If you really must have a smoking habit, choose weed over cigarettes. Even then, any type of weed is much healthier than tobacco. Marijuana is so much healthier for your mind and body, and it can function as a medicine and supplement as well.

For individuals who are struggling to quit smoking cigarettes, you might even want to consider using cannabis as a cessation aid. Many have found success using cannabis to quit cigarettes, with longer-lasting success rates.

CAN CANNABIS HELP YOU QUIT CIGARETTES? READ BELOW…

CAN WEED HELP YOU QUIT CIGARETTES? WE ASKED THE PROS!