FRESNO, Calif. (CN) - Fresno County uses an unconstitutional ordinance to uproot medical marijuana patients' legal plants and fine them $1,000 per plant without judicial process, patients claim in court.
One plaintiff, who has muscular dystrophy and is on disability, faces a fine of $87,000 and sheriff's deputies took all of his plants.
The county is using the ordinance as a cash cow, having imposed $2 million in fines already, with another $8 million in the works, according to the June 19 complaint in Superior Court.
Dwayne Alvares, Richard Hickingbottom and John Doe seek writ of mandate and an injunction against Fresno County and Sheriff Margaret Mims. They say the county's enforcement of its medical marijuana ordinance violates equal protection and due process rights under the state and federal constitutions.
The ordinance, adopted in 2014 and amended this year, prohibits cultivation of medical marijuana and marijuana dispensaries, as public nuisances. Medical marijuana plants can be uprooted and their owners fined $1,000 per plant.
Brenda Linder, attorney for the growers, said that the lawsuit is not contesting the county's right to legislate locally and to regulate marijuana cultivation, but that the language of the law allows the county to bypass notice and violate due process.
The ordinance allows the county to rip out the medical marijuana plants and fine the growers or property owners at the same time, without prior notice, Linder said.
"You can't just routinely do a summary abatement and you can't do a summary imposition of fines," Linder said. "You're talking about a lot of money and something that is correctable. The fine is supposed to be something to gain compliance, not be a punishment."
The Sheriff's Office says medical marijuana growers attract crime and violence, and bring loitering, increased traffic, noise and loss of trade for businesses.
The Fresno County Board of Supervisors concurred, finding that medical marijuana cultivation poses a threat to the public peace, health and safety. If unregulated, large quantities of illegal marijuana will be introduced into the local market in the near future, the ordinance says.
"In order to deter the cultivation of marijuana on a scale that creates the danger and risk to public health and safety recited above, substantial administrative fine amounts are necessary," according to the ordinance, which is attached to the lawsuit as an exhibit.
In early 2014, sheriff's deputies and county employees began seizing and destroying medical marijuana plants from qualified patients without notice to patients or the property owners, often through coerced consent, according to the growers.
The growers are fined though they do not refuse to abate upon notice or try to stop the deputies from taking out their plants.
"These are not cases where the accused violator has somehow avoided or refused to comply after being contacted of a potential violation," the complaint states. "Defendants continue to state in public venues that these ordinances are 'necessary' to curtail illegal activity; however, these ordinances only apply to 'medical marijuana' plants cultivated by qualified patients. There remain a plethora of penal statutes available to defendants to eradicate and/or prosecute and curtail truly illegal activity. As stated in these ordinances, the main purpose of this ordinance is to 'punish' medical marijuana patients."
The "enforcement of a $1,000 per item fine, without notice, is constitutionally excessive, draconian and is not authorized by any state statute," the growers say.
