Pubdate: Fri, 12 Jun 2015
Source: Fresno Bee, The (CA)
Copyright: 2015 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

JUDGE FINDS FAULT WITH FRESNO COUNTY'S MEDICAL MARIJUANA ORDINANCE

In a strong rebuke of Fresno County's medical marijuana cultivation 
ban, a Fresno County Superior Court judge said that $99,000 in fines 
should not have been imposed on a Laton man who got rid of his plants 
before Fresno County Sheriff's deputies could cite him.

Judge Dale Ikeda said Xiongh Thao, who was growing 99 plants with a 
medical marijuana recommendation, should have had 15 days to pull the 
plants before facing a citation.

Sheriff's deputies went to Thao's home in March 2014 and told him he 
needed to get rid of his plants, but they didn't cite him because 
they had no citations with them. Three days later, deputies returned 
with a citation, but Thao had already removed all his plants. The 
Fresno County Board of Supervisors later fined Thao $1,000 per plant 
under the county ordinance, which had gone into effect in February 2014.

But in a decision issued Friday, Ikeda said Thao should not have been 
fined. He reversed the imposition of the $99,000 fine and went a step 
further, saying that language in the ordinance allows 15 days for 
removal of the plants, so even if he had not removed the plants 
before deputies returned with a citation, the plants could have 
remained without a citation or fines imposed until after 15 days had passed.

It's not clear if the judge's decision will have wider implications, 
but lawyer Brenda Linder, who represented Thao, said the judge's 
decision is "not controlling, but it could be persuasive."

She said the judge went "further than I expected," especially as it 
relates to the 15-day notice.

"It certainly should make the county and the city (of Fresno) and 
other local jurisdictions sit up and take notice," she said.

The Thao case references only Fresno County's ordinance, which covers 
unincorporated areas of Fresno County.

Jeff Dunn, a private lawyer who represented the county, said during 
the trial in May that the county could find Thao in violation of the 
ordinance because deputies found the marijuana plants on his 
property, even though they didn't issue a citation until days later.

During the hearing, Dunn also said that the county has determined any 
cultivation of marijuana is a danger to the public and that plants 
could be removed without giving Thao an opportunity to remove the 
plants himself. Dunn said that the marijuana ordinance was about the 
threat to public safety, not a zoning issue. Ikeda took a different view.

In his ruling, Ikeda said "the county has failed to prove immediate 
and imminent threat ... or an immediate danger to health or safety." 
He said the county needs to provide a reasonable time to abate the 
nuisance before imposing penalties.

The judge said he attempted to reconcile state Government Code, which 
"shall provide for a reasonable period of time ... for a person 
responsible for a continuing violation to correct" or remedy the 
problem before fines are imposed, with the county ordinance that 
requires immediate plant removal.

Ikeda said the ordinance is a zoning issue because its language says 
"medical marijuana cultivation is prohibited in all zone districts in 
the county." He also said "it is clear that the ordinance is 
regulating the use of land and is, therefore, a zoning ordinance." 
Because it's a zoning ordinance, Ikeda said, time must be allowed for 
a resident to remedy the problem.

Last year, Fresno County supervisors approved paying up to $210,000 
to Dunn's firm, Best, Best & Krieger to defend its medical marijuana 
ordinance. Dunn previously won a state appellate case that tested a 
medical marijuana ban two years ago. The state Supreme Court later 
chose not to hear the case, upholding the ban, which triggered 
similar cultivation bans, including Fresno County's.

Dunn said Friday he had not read the ruling because he was on the 
road. He deferred questions to Fresno County officials.

Dan Cederborg, Fresno County counsel, said Friday that the county 
couldn't fully comment on the case.

"While we disagree with the trial court's legal and factual 
conclusions, due to the complexities and unique circumstances of the 
Thao case it will take further analysis of the court's decision 
before determining the county's next steps," he said.

The $1,000-per-plant fines were approved last year to send a zero 
tolerance message about marijuana cultivation in Fresno County after 
dozens of violent crimes occurred in 2012 and 2013 related to 
marijuana cultivation. Several serious incidents occurred on 
properties where growers had medical marijuana cards.

Last month, Fresno County Sheriff's Capt. Bob Kandarian said the 
county has had fewer growing operations and less violence since 
enacting the ordinance. In 2013, 550 cultivation sites were found, 
compared to 330 last year. By May of last year, 132 marijuana gardens 
had been seized, compared to 102 this May, he said.

Ellen Komp, deputy director for the California branch of the National 
Organization for Reform of Marijuana Laws in San Francisco, said she 
was encouraged by Ikeda's ruling.

"I've been concerned about the lack of proper noticing I have been 
hearing about in Fresno," she said Friday. "In general, I think it's 
very important that Fresno citizens have been pushing back."

She said Ikeda's decision may affect the way other counties and 
cities consider imposing bans of medical marijuana.

"It feels like democracy worked today," she said.
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MAP posted-by: Jay Bergstrom