Pubdate: Fri, 03 Oct 2014
Source: Fresno Bee, The (CA)
Copyright: 2014 The Fresno Bee
Contact:  http://www.fresnobee.com/
Details: http://www.mapinc.org/media/161
Note: Does not publish letters from outside their circulation area.
Author: Marc Benjamin

FRESNO COUNTY'S MEDICAL MARIJUANA GROWING BAN UPHELD AGAIN

Fresno County has successfully defended its ordinance banning medical 
marijuana cultivation for the second time, recently earning a 
dismissal of a suit that sought legal cultivation of medical marijuana.

The lawsuit was filed by the American Civil Liberties Union earlier 
this year. Senior staff attorney Michael Risher said the dismissal 
left the ACLU with a choice of continuing two other actions connected 
to the suit in Fresno County Superior Court or filing the case in the 
Fifth District Court of Appeal.

He said the ACLU has 60 days to decide which course to take. The ACLU 
suit also targeted the city of Fresno, which approved a similar ordinance.

"The basic questions in our case is whether the county and city can 
effectively ban the cultivation of medical marijuana even though 
state law allows seriously ill patients to cultivate marijuana for 
medical use," Risher said.

One issue that Fresno County Superior Court Judge Carlos Cabrera did 
not decide on is whether the county can get a civil inspection 
warrant to come into a home to look for medical marijuana, and 
whether that violates the Fourth Amendment right to privacy in the 
U.S. Constitution, he said.

The suit, filed in May, was on behalf of two medical marijuana 
patients in Fresno County, Joan Byrd and Susan Juvet. Risher said 
neither of his clients will cultivate medical marijuana unless a 
court order overturns the ordinance.

"They have no intention of breaking the law and being cited," Risher 
said. "What they want is for the (court) to say the ordinance doesn't 
apply to them because it violates state law. We brought these suits 
so our clients could cultivate medicine without breaking any laws."

An earlier case, filed against the county on behalf of Fresno-area 
resident Diana Kirby, also was dismissed. It also alleged that the 
cultivation ordinance violated state law. The case is being appealed.

"The county's medical marijuana ordinance has already been held by 
the Superior Court in the Kirby case to be valid and enforceable," 
said Dan Cederborg, Fresno County counsel. "It is difficult to see 
how the current plaintiffs in the Byrd case have a chance of 
prevailing on similar legal issues that have already been resolved by 
the Superior Court in the county's favor."

A fine of $1,000 per plant is charged under the county's medical 
marijuana cultivation ban. Fresno County supervisors oversee all fine appeals.

There are at least four other suits filed or pending against the 
county that contend some aspect of its medical marijuana ordinance is unlawful.
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MAP posted-by: Jay Bergstrom