Pubdate: Sat, 10 Sep 2011
Source: Visalia Times-Delta, The (CA)
Copyright: 2011 The Visalia Times-Delta
Contact: http://www.visaliatimesdelta.com/customerservice/contactus.html
Website: http://www.visaliatimesdelta.com/
Details: http://www.mapinc.org/media/2759
Author: David Castellon

JUDGE HALTS ACTION AGAINST TULARE COUNTY MEDICAL POT FARM

A judge has issued a temporary restraining order prohibiting Tulare 
County agencies from removing or destroying medical marijuana from a 
small farm just north of Visalia.

But Superior Court Judge Melinda Reed's order Friday will stay in 
effect only until Wednesday, when lawyers representing Tulare County 
are expected to submit their written arguments against the 
application for a restraining order against the county filed with the 
court earlier this week by Richard Daleman.

He leases five acres of mostly farmland near Highway 63 and the St. 
Johns River. Daleman rents out portions of that land to 40 people to 
grow marijuana that they smoke or ingest to treat medical conditions.

Daleman, himself a medical marijuana user, said he started the 
business a couple of years ago and believes he has a right to do so 
under California's Compassionate Use Act, which legalized the use, 
possession and growing of marijuana by people with doctors' recommendations.

The county Resource Management Agency served Aug. 31 Daleman and his 
landlord a cease and desist order, claiming the business violates the 
county's 2009 medical marijuana ordinance.

Among its provisions is that medical marijuana can be grown only on 
commercially zoned land - not land zoned for farming, including 
Daleman's plot - and the growing has to be done inside buildings with 
walls and roofs.

The order gives Daleman until Saturday to stop allowing the plants to 
be gown on the land and to clear out the marijuana plants, which 
number about 3,500.

Daleman's lawyer, John Ryan, filed an application with the court 
claiming the county ordinance violates the state's medical marijuana 
laws and related court rulings. It also seeks a restraining order to 
stop the county from shutting down the business.

A hearing was scheduled at the Visalia courthouse Friday morning, but 
the judge assigned the case, Paul Vortmann, was scheduled to be off 
that day. So the case was moved to an early afternoon hearing in 
front of Reed, whose first question to the lawyer from the Tulare 
County Counsel's Office was whether she had a written response to 
Daleman's application and claims.

Attorney Julia Langley said her office only received a copy of 
Daleman's application Thursday morning and didn't have sufficient 
time to research and prepare a response.

She did tell Reed that Daleman's request "doesn't have a legal basis 
to go forward."

Langley went on to say the county has a right to right to make 
regulations to protect public health and safety, and the ordinance 
has been challenged and upheld.

Reed said she wanted to give the county time to provide a written 
response to Daleman's application. The soonest that could happen is Tuesday.

Langley said that before Wednesday's hearing, she plans to file a 
request with the court to issue an injunction ordering Daleman and 
his landlord to "stop the activity and abate the nuisance on his 
property," which essentially means removing all the marijuana plants 
not growing any more on his land.

Such an order would include a deadline, along with a provision 
allowing the county to step in after the deadline and do abatement, 
if needed, Langley said.

Whether that happens will depend on whether Vortmann extends the 
Reed's restraining order against county agencies.

That order doesn't apply to law enforcement agencies conducting an 
investigation of criminal activity. The county's cease-and-desist 
order is a civil action, and no accusations of criminal activity have 
been leveled against Daleman.

After Friday's hearing, Ryan said he wasn't surprised at Reed's 
decision to issue the brief restraining order, considering little 
time there was between his filing the application Wednesday and 
Friday's hearing.

As for the county's efforts get Daleman to stop the activities on his 
land, Ryan said,. "I think the order is completely invalid."

He added that he and is client believe the county ordinance is 
intended to drive up costs for medical marijuana users and set 
obstacles to using the drug despite the fact that it's medicinal use 
is legal in the state.

"I think there's a sort of animus against marijuana users in 
general," Ryan added.

"You do something they don't like, they railroad you," Daleman added.
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