Medical Marijuana Patients Fight Fresno

     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.
     Linder said that medical marijuana patients qualified under state law are not given the same due process considerations as alleged violators of other county ordinances, such as those who create fire hazards during this extreme drought.
     “I’ve done the homework, and nowhere else in nuisance abatement or administrative fine ordinances do they charge a per item fine,” Linder said. “In cases of fire hazards and weed abatement, people are given a reasonable amount of time to correct the problem – anywhere from 10 to 30 days – and they don’t charge you per weed or per bush that’s dry. They don’t charge ‘per item’ in any of those.”
     Fresno County imposed more than $1.97 million in fines against 38 people for citations involving 18 properties, the complaint states.
     “Additionally, more than $8 million in cannabis cultivation fines are pending against persons who have been criminally charged but whose appeal hearings have not yet been held,” it states.
     Those who do not pay the fines run could be subjected to liens or special tax assessments, Linder said.
     Gov. Jerry Brown has twice vetoed a bill that would allow collection of an administrative fine through property taxes.
     “It is not authorized under state law,” Linder said. “This can be very, very damaging.
     “If people don’t get to court or don’t get in front of a judge that actually applies the law, and they don’t get these fines reversed, they could potentially be losing their homes down the road because of the way the county is enforcing this.”
     Richard Hickingbottom, who suffers from “a severe form of muscular dystrophy and is on disability,” says he was coerced by heavily armed deputies acting as “code enforcement officials” into granting them “consent” to pull his 87 medical marijuana plants.
     “Hickingbottom, out of fear of threatened arrest, allowed the deputies to ‘confiscate’ his medicinal plants on that same day. The deputies then presented Hickingbottom with two ‘notices’ purportedly imposing $87,000 in administrative fines, after the plants had been pulled,” the complaint states.
     A grower in a similar situation was recently handed a victory by Fresno County Superior Court Judge Dale Ikeda.
     In that case, deputies went to the home of Xiongh Thao in March 2014 and told him he needed to get rid of the 99 plants he was growing with a medical marijuana recommendation, but they did not cite him or issue an abatement order at that time.
     Thao removed the plants, which the deputies verified three days later when they checked on the property. Despite this, the deputies issued a 15-day notice to abate, then sent Thao an administrative citation imposing a $99,000 fine.
     Thao – also represented by Linder – appealed, but the Board of Supervisors voted to uphold the fine plus interest of 10 percent per month.
     Judge Ikeda reversed imposition of the fine on June 12, stating that the board “had no legal authority to impose an administrative fine or penalty when Thao removed the marijuana plants prior to the expiration of the abatement period.”
     Although the county argued that cultivation of marijuana is a danger to the public and is not a zoning issue, Ikeda said there was no evidence that Thao’s plants created an immediate danger to health or safety.
     The county was required to give Thao a “notice of the uses or conditions constituting the nuisance to be abated and ‘a reasonable period of time … for a person responsible for a continuing violation to correct or otherwise remedy the violation prior to the imposition of administrative fines or penalties,'” Ikeda ruled.
     The county changed the forms it uses when imposing the fines and amended its ordinance this year to clarify its enforcement and notification requirements, but the growers say the amendments merely make the county’s 15-day notice procedures optional.
     County officials continue to argue “that their ordinance provides an avenue for them to do as they please; that every single medical marijuana plant, regardless of factual circumstances, creates an ‘immediate threat’ justifying summary action and deprivation,” the complaint states.
     The growers seek a restraining order and injunction prohibiting the county from enforcing the ordinance.
     The county did not immediately respond to a request for comment.

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