[UPDATE] Confusion Leading to Criminalization: The Hazy, Dangerous World of Cultivating Medical Cannabis in Humboldt County

How many plants can a qualified medical cannabis user grow? Ask law enforcement or various state and county departments, and each agency, in some cases, each individual within each agency has a different answer. Few are on the same page regarding Proposition 215 and Senate Bill 420 as it relates to Proposition 64 and our local county ordinances, but contrary to a popular rumor often stated by government agencies since legalization, medical cannabis does still exist

However, all parties involved – law enforcement, code enforcement, the California State Water Resource Control Board, and even doctors who prescribe cannabis, growers and the lawyers who defend them–have a different understanding of how much medical marijuana qualified patients are allowed to cultivate. Subsequently, patients are struggling with the complex and costly repercussions of the inconsistent information given to them from various enforcement circles who raid and/or abate them for what patients believe to be compliant medical gardens.

Stephan Schnur, who was born and raised in Southern California, suffered from epilepsy after a car accident. He started having seizures that left him hospitalized. Schnur says his debilitating condition was cured by cannabis, mainly the highly concentrated Rick Simpson Oil (RSO), juicing massive quantities of flowers and leaves, and smoking.

Schnur explained, “When I started having grand mal seizures, [doctors] put me on a prescription of Keppra, which made me very depressed and suicidal. I was still having seizures on Keppra, about 5 total. After about a year… I decided the benefits of Keppra were not worth the risks and stopped taking Keppra. I started using medical cannabis to treat my epilepsy and became a state registered qualified patient.”

Despite his medical condition, which later included ulcerative colitis, his cannabis cultivation and use got him into legal trouble and even resulted in his being incarcerated for nonviolent marijuana offenses three times.

View of Schnur’s propagation area.

His first encounters with the law over cannabis happened almost twenty years ago. The violations spanning from 2002-2004 resulted from 3 ¼ lbs of flowers, and two grams of hash in total. That got him two years and 120 days in three different jails, in addition to four years probation, and two years in an outpatient facility.

In 2014 Schnur fled to Humboldt County to join a long list of medical refugees who found sanctuary pre-legalization under the safe haven of Prop 215 and SB 420 to cultivate their own medicine with a doctor’s 215 prescription. However, even here, the confusion about medical cannabis rules led to Schnur being forced to cut down what should have been his legal medicine under California law.

How did this confusion begin? About four years into legalization, in October 2020, the Humboldt County Board of Supervisors approved an ordinance that reduced the amount of canopy allowed based on parcel size, regardless of doctors’ recommendations or medical needs, restricting patients on parcels larger than five acres to 400 sq. ft., those under five acres to 200 sq. ft., and those less than an acre to 100 sq. ft.

For whatever reason, the 2020 Humboldt County ordinance seemed to coincide with a popular misunderstanding by enforcement officials that Prop. 64 essentially erased Prop. 215 and S.B. 420, that qualified medical cultivators could subsequently only have six plants maximum in their allotted square foot space, and anything beyond six is considered “commercial cannabis.”

Cannabis expert and local, criminal defense attorney Eugene Denson reports his clients tell him, since legalization, the Sheriff’s deputies and/ or Code Enforcement officers claim, “There is no medical anymore,” or that “the limit is six plants and the 215 doesn’t matter,” and various statements to this effect.

Denson added, “That six plant lie is all over California and has been for years. I suspect it is included in statewide Law Enforcement training and probably DA training too.”

One example of misleading information coming from enforcement agencies can be found in the CA State Water Control Board letters that were sent to some medical cultivators in 2018 claiming, “If cannabis is grown solely for personal, non-commercial use (maximum 6 plants), regulatory coverage under the cannabis general order is not required.”

Screenshot of a Water board document sent to some medical farmers in 2018.

Additional evidence of the six-plant-maximum-for-medical narrative, can be found in the Code Enforcement Unit’s instruction manual called “How to Abate Public Nuisances and Correct Code Violations On Your Property” that is sent to Notice to Abate (NTA) recipients, which says personal and medical are intermingled with a six plant cap on cultivation.

Screenshot of page 4 of “How to Abate Public Nuisances and Correct Code Violations On Your Property” Resolve an abatement notice, “frequently asked questions.”

In a previous interview in August 2021 between Director Ford and this reporter (audio link), he said, “[Medical cultivators] can grow six plants [for themselves] up to 400 sq. ft…on five or more acres. The county can’t supersede the state regulations, and the state regulations say no more than 6 plants.”

However, Director Ford said at the time that he wanted to investigate this matter more, and stated, “It’s no good for people to be confused, we do need clarity… I’d be happy to …talk about it with our county counsel. I’m always wanting to understand the truth and the law.”

Screenshot of email exchange between Code Enforcement Officer Brandon Howton and a qualified medical patient after being raided and abated.

Sheriff’s deputies and Code Enforcement Officers also made this six plant claim during a 2021 raid and abatement of Corrine and Matt Selino’s land for a compliant medical garden, with two 215s. The Selinos are a family in Salmon Creek with a permitted farm on another parcel, but they were mistakenly abated last year for a medical garden and then raided during the ten day window to respond to the abatement, by the Sheriff’s Department, Code Enforcement and other agencies. (See earlier article here.) During the raid, they were advised by Code Enforcement and Deputies that they could only have six plants.

On September 13, 2021, Humboldt County Code Enforcement Officer Brandon Howton told one medical cultivator in an email that his six plants have to be in a 400 sq. ft. area.

Meynell’s email to a qualified patient who was abated, April 6, 2022

On March 25, 2022, another Humboldt County Code Enforcement Manager, Karen Meynell, stated in an email to an abated medical grower that “state law is 6 plants per residence.” In the same email thread she said she was “not the right person to answer this question.”

Meynell then responded on April 6, 2022 telling the same property owner that he could have 400 sq. ft. for medical in addition to six for personal use on parcels over 5 acres. Meynell’s April 2022 statement, according to cannabis attorney Eugene Denson, is accurate.

Current Medical Cannabis Consensus

As noted, Humboldt County Sheriff’s deputies have told people being raided that medical marijuana doesn’t exist. However, in an interview this summer, Sheriff Billy Honsal said he recognized medical cannabis laws were still on the books and if you have a doctor’s recommendation and are within the county ordinance of 400/200/100, Honsal said, “we are going to walk away.” He added, “We are not targeting the small medical marijuana grows…. We pass by 200-300 sq ft gardens all the time, we are not worried about that, unless it’s… in a residential area where we are getting complaints.”

Honsal also acknowledged Prop. 215 was not written well, making medical cannabis hard to enforce. He said if someone is growing more than six plants sometimes deputies have to go onsite to look at the 215 documents. To avoid unwelcome visits, Honsal encouraged cultivators to “give [his department] excuses to walk away” by making their 215s visable on their fence, their greenhouse, and/or garden.

In the recent interview we had with Humboldt County Planning and Building Director John Ford, his understanding of medical laws changed since our interview last August to align more with Attorney Eugene Denson’s analysis, and he said, “I just saw something new … I need to take a look at [the Patrick Kelly decision] and see if it affects our understanding of the 400 sq. ft.”

Director Ford said he needed to look into the six plants for personal use, in addition to medical, explaining, “Medical and recreational are technically different. It’s an interesting thought that perhaps if they are treated differently, they can be regulated differently and not tied together.”

With these various opinions over the years coming from government agencies and experts, it’s no wonder all parties involved are confused. The issue is that the gavel of justice isn’t hammering on the government agencies. It’s falling on patients who are sometimes doing their very best to comply with the law, while enforcement agents are providing them conflicting, and misleading information and then later penalizing them for the confusion.

Confusing Rules Harm Patients

Being accused of unlawful commercial cannabis cultivation can leave property owners burdened by steep costs and complex compliance measures. Patients feel this has been unfair because they are being penalized as they continue to get different opinions regarding their rights, depending on which agency or expert they speak with such as in the Selinos’ case where they followed their doctor and lawyer’s advice and were told something completely different by deputies and Humboldt County Code Enforcement.

Mistakes happen, sure, however a trend is a different matter.

Medical cannabis cases continue to surface in Humboldt County. One elder cultivator, Jacqueline Benjamin, is a longtime 215 patient. Like many legacy growers, she applied for a permit as soon as she could in mid 2016, but when she discovered she could not afford to finish, she endured a host of enforcement actions –once over an empty hoop-house and her medical garden of 40 plants, though she had a 215 script for 80. (Some 215s state a plant number, some state a pound count, both are valid, according to Attorney Eugene Denson though county government has not confirmed that).

Between the two homesteads and considering the empty hoop-house footprint, she was over 400 sq. ft. though she had enforcement issues before the 400 sq. ft. ordinance went into effect and even if the hoop house was full, she was arguably in compliance with 215 according to her doctor and attorney. That did not stop the Water Control Board from sending her a letter and later a search warrant based on their interpretation of medical cannabis laws.

In addition to the confusion over how much a medical patient can grow, confusion clouds a number of issues including whether the water used for medical cannabis is subject to the same rules as that used for recreational cannabis. In Benjamin’s case, the Water Control Board letter said medical marijuana growers like her need to register their water, and if they do not, penalties will be imposed for “diversion or use of water for cannabis cultivation for which a license is required but has not been obtained.”

Water board document sent to cultivators in 2018.

Is a “license required” to cultivate medical cannabis though? If you have a medical garden with a 215, can the water board fine patients for water use based on completely separate commercial cannabis laws?

This reporter reached out to the Water Board to inquire, but no response was given by the time of publication.

Benjamin explained, after the State Water Control Board served a search warrant, Humboldt County Code Enforcement abated her in 2019, she said, “I signed a compliance agreement because I still had the idea that I could go legal and that’s what the county told me to do. But the $10,000 compliance agreement fee thrust me into bankruptcy.”

Benjamin said she tried to get a permit again, next time partnering with her tenants, but she was raided in 2021 before they could finish. Benjamin recalled, ”We were flown heavily by a large military helicopter. The greenhouses were empty next door and I had my little medical grow in my garden… 20-30 armed sheriffs …proceeded to terrorize me, my son and grandson… pointing their guns at us.”

She said it was traumatic for her family and pets, saying, “I still shake when I think about it. It was unbelievable. It no doubt cost the county quite a bit of money too, every agency was there”

Benjamin detailed that while on-site, Humboldt County Sheriff’s deputies told her medical marijuana did not exist anymore. The deputies also cut her domestic waterline and, as a result, her grandson was unable to wash and eat breakfast that day.

Benjamin said even though she felt she was compliant, she felt she had no choice but to settle on the $10,000 penalty over her medical garden as her abatement notice from Code Enforcement initially threatened a $900,000 fine which was an impossible sum for her.

Medical marijuana patients, who have been the subject of enforcement actions playing out across the state and in Humboldt County are left wondering — how can agencies enforce laws, if they have not laid out what those laws are ?

There is no way to know for certain how many raids took place, or abatements were posted on legitimate medical gardens in total, or how many patients had their plants cut, or were told to sign away some of their rights, and to pay penalties under duress.

The misinformation and mistakes, coupled with the heavy handed enforcement across multiple agencies, have been costly to property owners financially, emotionally, and sometimes to their health if their medicine is seized.

Stephen Schnur’s greenhouse.

Stephan Schnur, the farmer that came to Humboldt County hoping to be able to grow medical cannabis instead had his 3000 sq. ft. permitted and 400 sq. ft. medical gardens raided and abated with a search warrant for the wrong parcel in 2019. He not only lost two pounds of his medicine, he was fined $15,370, and felt “forced” to relocate his family two months after the raid.

Code Enforcement told Schnur he could only have six plants for his medical garden, which led to a host of other permitting issues that were unrelated to cannabis. For example, Code Enforcement made him abandon his unpermitted septic and discontinue the use of the compost toilet. Then the B&B Portable Toilet company stopped servicing Rancho Sequoia where he lived, due to dismal road conditions.

As a result of the decommissioned facilities, and fines his family could not afford, Schnur said, “I had to take a loan against my property …My family felt forced off our land we lived on for seven years, and [we] relocated out of state.”

Eugene Denson spoke about the enforcement tactics being inconsistent with the aim of improving the health and safety of county residents. For instance, Denson pointed out that after telling Schnur he needed to get a septic system, the Planning Department wouldn’t allow him to install one. Denson said, “How does it benefit the health and safety of Humboldt County residents to prevent someone from permitting a septic tank after giving him an abatement for not having one?”

However enforcement officials insist the regulations are aimed at a specific purpose— environmental protection. Sheriff Honsal said the goal of enforcement agents is to return properties “back to what nature intended,” and acknowledged it could be “very costly.”

Honsal added his department focuses on crime associated, adding,”We don’t necessarily look at the socioeconomic impact of the people who are growing, that’s not a factor for us. We just see the crime associated and then we act on it.”

Photo of Schnur’s permitted farm, featured in an abatement notice.

Schnur said despite doing all he could to comply, he felt set up to fail. After spending about $30,000 in permitting costs, Schnur said he is still looking at about $70,000 more in infrastructure expenses such as solar, roads, a well, water storage, permitting all structures, storm mitigation plans, and the septic.

In addition to contradictory information given out by agencies and in the absence of clearly understandable steps, patients sometimes can misunderstand directions given to them by government staff. A few months into the county’s “final approval phase” on February 23, 2021, Schnur went into the Planning Department to speak with Director John Ford about the status of his permit to determine if he could cultivate that year.

Schnur’s spring visit to Planning was productive and, “Ford was very helpful,” Shcnur told us. He alleges though, “I asked Ford if this means I can grow this year. He said ‘yes, and you need to work on your state license.’ I told him I had been working on it and it was nearly finished.”

This month, Director Ford responded to the alleged exchange, saying he does “not specifically recall the incident.” He added, “There are two important points: a legal cultivator needs their local permit and state license. I am intentional about being very clear on those points.”

In April 2021, Shnur received an email from CDFW stating he was “authorized to begin project activities.” Which he took to mean cultivating cannabis. Though, CDFW likely meant their agency stamped his project for approval on their end only.

As summer was quickly approaching, and considering the confirmation (he felt) from the Director Ford and CDFW, Schnur believed he was safe to plant his permitted crop and medical garden.

Schnur was wrong. On May 25, 2021, he was raided.

Stephen Schnur’s property being raided.

And, when a patient cultivating marijuana is found to be in error, they are treated harshly–unlike a similar error made when growing other agricultural products which is likely to lead to a letter detailing a fine at the most. Schnur who felt he had been following the rules was treated like a dangerous criminal. “I thought I was all good,” he explained. “I was clearly trying to comply. Still, the Police handcuffed me, “for everyone’s safety,” they said. “My plants were cut, and they would not let my wife or I pick our son up from school.”

Photo of Schnur’s nursery for his farm.

It is not uncommon for permitted farmers to get raided and abated after going through the county permit process, while waiting on their state license. When Schnur was raided, he was in the “scientific review phase” of the state permit. The only step after that before getting his license is the signature phase.

The search warrant was for Schnur’s neighbor’s property, not his parcel, however Schnur was raided anyway as a result of not having his state license and deputies denial of his current 215. Schnur explained to deputies that they were at the wrong parcel and showed the name, address, APN, and infrastructure inconsistencies on the search warrant.

When asked about the parcel mistake, Honsal stated that if they raided the wrong property, “[Schnur] has civil recourse, he can go ahead and sue us. …Mistakes do happen sometimes, I would…hope that they wouldn’t, but if it’s truly a mistake and we served a search warrant, but we didn’t have a valid search warrant, then there’s legal recourse for that.”

While Sheriff’s deputies were onsite, Schnur also explained his 15 year active 215 was not just current, but he just had it renewed eleven days prior to the raid and showed them evidence.

Stephen Schnur shows his medical garden that he was forced to remove.

When Schnur showed deputies his updated 215, Schnur said the deputy stated, “I think medical cannabis cards are mostly, in Humboldt a sham, they are just a way for someone to make money. I’m sure you don’t smoke an entire greenhouse full of weed.”

A Humboldt County deputy calls medical marijuana “a sham.”

Sheriff Honsal explained what the deputy likely meant was that some farmers used 215’s as a cover to skirt the law and said he noticed a canna-bias in enforcement circles still.

Sheriff Honsal explained,

What it sounds like to me is that they were saying that most of their 215 cards are a sham, but yes we don’t need to integrate our opinions, because there are legitimate 215 patients …Throughout the state, there’s still some bias on cannabis law enforcement’s end, we see it in Fish and Wildlife as well as certain law enforcement agencies… people hid behind 215 for years, when they didn’t have a legitimate medical reason; they were selling for profit…. But with 215 on the books, we have to be sensitive to that, so I will be bringing that up to our people.

Attorney Eugene Denson writes about the importance of enforcement agencies understanding the law in his medical cannabis analysis,
It is important for the Sheriff, the Code Enforcement Unit of the Planning Department, and other county officials to understand what is allowed under existing law because I believe they are presently violating the law in some of their enforcement actions in Humboldt County due to a mistaken opinion of what the laws of California allow. These actions make the county liable for damages and other legal remedies available to patients. See County of Butte v. Superior Court 175 Cal.App.4th 729, Granny Purps, Inc. v. County of Santa Cruz (2020) 53 Cal.App.5th 1, 266 Cal.Rptr.3d 752.

(Aerial photo of Schnur’s medical and permitted garden)

According to Dr. Jean Talleyrand, the Founder and Chief Medical Officer of MediCann and Founder of the Clinical Endocannabinoid System Consortium (CESC), member of the Advisory Board at the American Society of Cannabis Medicine, ​Appointed Member of the San Francisco Medical Cannabis Task Force and more,

Prop 64 and Prop 215 are in coexistence…From a medical perspective I tell folks I can’t comment on the number of plants and I don’t think the government should either… I tell folks to document their needs and grow to your needs … How can a state or county official tell you you can only have six plants without even knowing your medical condition? I don’t even feel like I can say that as a doctor, I can talk about dried flower weight, use patterns and things like that …but I’m not the botanist, I don’t know how you grow best.

Dr Tallyrand explained the 400 sq. ft. county ordinance could possibly be infringing on established medical rights, and, referencing an earlier medical marijuana case,said, “In the Patrick Kelly case the county was trying to limit his amount. The Judge determined the county was in conflict with state law…They are legislating a medical need.”

Dr. Talleyrand said he is disappointed by how legalization adversely impacted small scale producers and medical cultivators alike; he hoped there would be more compassion offered after legalization, and added, “It seems to me law enforcement makes mistakes all the time… I think nobody really knew the law and they let someone on the ground just make up numbers…It’s not really up to the Sheriff or Deputies to decide the law. The law is the law, they are sworn to follow the law.”

Schnur was upset at how harshly he was treated. He said he thought legalization was meant to end the war on cannabis. “I don’t want to be treated like a criminal anymore,” he told us.

Medical marijuana patient, Stephan Schnur, videotaped himself cutting plants in hopes of appeasing Humboldt County Code Enforcement.

Sheriff Honsal was cited in a recent Economist article saying that enforcement was decreasing in the County and that he was sympathetic to the plight of legacy farmers and aspired to “make up for the trauma inflicted during the war on drugs.” Honsal said, “[In the 1980s] it was like the military coming in…A lot of the old farmers still have PTSD based upon the helicopters flying low.”

Honsal elaborated on current enforcement statistics for Humboldt County, saying, “We do not [eradicate] anywhere close to above 1-2 % of the illegal grows every year…in the past we’ve done 75-80 search warrants in a year, I think we are up to 110-120 [this year].”

The Humboldt County Marijuana Enforcement Team (MET) is working all year [now], because of all the indoor grows since legalization, Honsal explained. He added, “There are about 3,000-5,000 illegal farms left in the county today, of the estimated 10,000-20,000 pre-legalization, and said, ”There’s about 1,000 permitted grows and a good percentage, maybe 25-30% … are not growing anymore.”

Sheriff Honsal explained one of his primary motivations with marijuana enforcement is to protect sensitive watersheds and enforcement may be heavier in those areas. Honsal explained, “As far as targeting goes, there are some protected watersheds …where we see reduced water flows… Salmon Creek is one … Redwood Creek… the Van Duzen….it has been running dry in August… and the upper Van Duzen is right in marijuana country.”

Photo from the California State Waterboard’s document on Stephen Schnur’s farm.

However Dr. Talleyrand wonders about enforcement priorities and if legalization did not worsen environmental matters. Dr Talleyrand pondered, “Cannabis is legal…I suspect this is a money game somewhere. This is not about protecting the environment.The laws are worsening the environment, they are creating more busts and detentions, and it is arguably more dangerous.”

The DEA reported that in 2021 busts are on the rise, more plants have been seized than in years past, and more people are being incarcerated for cannabis today than in recent years.

Last year Schnur received a letter of intent to revoke his permit. The Code Enforcement Manager eventually agreed to not revoke it, but he wouldn’t be allowed to operate until he paid $15,720 in full. He was unable to do so and instead entered into a payment arrangement for $600 a month, the very lowest Code Enforcement would go.

The County’s permit revocation raised a flag with the State, and consequently this month, Schnur received a letter saying, “based on the non-compliance response received from the local jurisdiction…[you] will be denied a state cannabis cultivation license.”

Director Ford has until August 7 to resolve this letter from the state on behalf of Mr. Schnur. Ford assured this reporter he would do so, saying, “I want this corrected.”

Schnur said his main concern is the toll this has taken on his young son, who was doing really well in sports and school but, as a result of having to leave his community and friends he grew up with, he is now struggling with depression.

Schnur noted that medical marijuana patients dealing with confusing laws are another of the many victims of the drug war, saying “We were the pioneers, we endured so much, and now they’re just going to take it away from us…We’re missing opportunities sitting here waiting on the county for years, while Phillip Morris walks in. All while the victims of the war on drugs are still being treated like criminals.”

In our interview, Director Ford assured the community he is listening to their concerns and planned to do annual staff evaluations moving forward in order to improve his department’s consistency, effectiveness, to reduce mistakes and to be more accommodating to the public.

Ford said,

Sometimes we make mistakes, there’s no doubt about that, but we try to minimize those…if we are to be successful at all as a county we are going to recognize that we are a part of a community . A part of living in a community is recognizing that none of us are perfect. We need to continue to communicate about things that happen…if we can communicate, change and understand it, then perhaps we can create a different dynamic between government, the Planning and Building Dept., and those who live, breathe, work, play, hurt, cry, and laugh in the community… That’s one of the things I have struggled with the entire time I’ve been here. How do we go from a place where there is an inherent distrust of government as an entity, to being transparent and vulnerable enough to show the people operating the government are not these evil ogres that have bad intent? While I think there has been some successes to that end, I know that there is still a long way to go.

Before publishing, Director Ford agreed to meet with Mr. Schnur and his Counsel this coming Monday. We will let you know how that goes with an update here, so stay tuned to the RHBB for more.

In the end, although almost everyone agrees medical cannabis does exist, Attorney Eugene Denson, Dr. Tallyrand, and Code Enforcement Manager Karen Meynell’s idea that patients can have six plants in addition to 400/200/100 sq. ft. for medical, if not more depending on their doctor’s recommendation, has not been argued in a court of law. There still is no codified answer to medical cannabis, and that may mean qualified patients are at risk if they grow beyond 100/200/400 sq ft depending on their parcel size.

UPDATE 8/6/22: An amicable conclusion has been reached in Stephan Schnur’s abatement case, featured here last month.

After two days of negotiations between Planning and Building Department Director John Ford and Stephan Schnur’s counsel, attorney Eugene Denson, a $6,000 settlement was deemed appropriate, less what Schnur paid already in payments of $1200. The $4,800 remaining replaces the initial $15,730 penalty proposed by Code Enforcement for Schnur’s medical and permitted garden, raided on a warrant for the wrong parcel, and later abated. The subsequent holds that were placed on his county permit, state license, and all projects related to his property have now been lifted. Schnur will be able to cultivate next year for the very first time since he applied for his cultivation permit in 2019.

Stephan Schnur called the Planning Dept. to pay the balance Friday, though he was sent to voicemail. He said,” I plan to pay the $4800 immediately when the county returns my call.”

This article is not legal advice, please consult an attorney regarding your specific circumstances. 

This reporter is a freelancer who sometimes works for the Law Offices of Eugene Denson.

If you care about local investigative journalism efforts such as this, please consider supporting Nichole Norris’s work, here.