Pot grower sues Fresno County, saying cultivation fines excessive

The Fresno BeeApril 21, 2014 

Pulled marijuana plants are dumped into a trailer.

FRESNO BEE FILE Buy Photo

A woman whose medical marijuana plants were removed from her mother's back yard is suing Fresno County, contending that its new medical marijuana cultivation ban has excessive fines and is unconstitutional.

Phaeth Holapatiphone, a medical marijuana card holder from Manteca, was growing 43 plants on her mother's Del Rey property when deputies ordered them removed in February. Her mother was ordered to pay $43,000 in fines by county supervisors, who authorized a tax lien against the property to collect the fines.

A hearing is scheduled Tuesday in Fresno County Superior Court.

The cultivation ban went into effect in February and the Holapatiphones were among the first offenders to get a hearing in front of supervisors.

Lawyer Brenda Linder said the ordinance contains "incoherent and inconsistent procedures." She will ask a Fresno County Superior Court judge to issue a temporary restraining order against the county because the ordinance's fines are excessive and don't follow state government code. She also said the ordinance's language is confusing and that deputies need warrants to go on property.

The county, she said, charges a 10% monthly interest rate -- $4,300 the first month alone for the Holapatiphones -- if the fine goes unpaid and $100 per day per plant if the plants are not pulled out within 15 days, which is excessive when compared with state guidelines.

Linder said deputies arrived at the Holapatiphones property in February and ordered the family to allow them in the house and yard without a search warrant before the 43 plants were pulled from the ground.

Her clients were surprised to learn of the fines after the plants were pulled because they read the ordinance differently than county officials.

On its notice, the county notifies all violators that they "have a choice to abate the public nuisance by removal of all plants from the property in 15 calendar days from the date of this notice." If the plants are not pulled, supervisors will conduct a hearing to consider imposing the fines and ordering removal of the plants.

During the supervisors' meeting last month, county officials said their interpretation of the notice is that any violation is a $1,000 per plant fine when those plants are discovered by deputies and then $100 per day per plant afterward.

Holapatiphone family members believed that because the plants were removed, the issue was resolved. The Holapatiphones "rightfully understood the problem to be corrected and therefore no need for further action by the county, the deputies, code enforcement, or the plaintiffs."

Phaeth Holapatiphone told supervisors last month that her mother, Linhkeo Holapatiphone, allowed her to grow the plants on her property because she didn't want her daughter buying drugs on the street.

She said she has a medical marijuana card for 85 plants. Pharmaceuticals had not alleviated her depression symptoms, she said.

Linder said there were no complaints from neighbors about the plants. She said there also was no reason to believe the marijuana would be sold illegally.

The ordinance for small-time growers is unnecessary because the most significant problems are coming from criminal operations and cartels, not small back yard cultivation, Linder said.

"They could not have gone onto her property and charged her with a crime, so they are finding some other way to harass people and make some money while not following due process," Linder said of the county. "They won't stop unless a court orders them to."

County staff did not return phone calls or emails Monday, but Supervisor Henry R. Perea said the lawsuit is no surprise.

"We certainly expected litigation and we will go through that," said Perea. "I still believe the fines are appropriate when you consider that one plant can produce $7,000 to $9,000 marijuana. I think the fines are proportional to the price on the black market."

After the first hearings in March, supervisors said they will hold cultivation ban hearings only as part of an appeal process.

The reporter can be reached at (559) 441-6166, mbenjamin@fresnobee.com or @beebenjamin on Twitter.

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