Judge waits to make decision on Fresno County marijuana growing ban

The Fresno BeeApril 22, 2014 

Marijuana plants

ANTHONY SOUFFLE/CHICAGO TRIBUNE — MCT

A Fresno County Superior Court judge will consider arguments heard Tuesday before ruling on a Fresno County medical marijuana cultivation ordinance that will impose heavy fines on its first violators in the next few days.

Judge Bruce Smith said he expects a ruling by the first week of May. He initially had difficulties with the legal filing and said there should have been two separate filings, an injunction and an appeal.

But Smith said he was not "altogether unsympathetic" with the Holapatiphone family, which was fined $43,000 by Fresno County supervisors in noncriminal penalties after 43 medical marijuana plants were discovered without a search warrant by Fresno County sheriff's deputies in February. The Fresno County ordinance bans any marijuana cultivation, even if it's for medical purposes.

"You certainly have every right to appeal" the county ban, Smith said.

Lawyer Brenda Linder had sought a temporary restraining order stopping the county from excessively fining the Holapatiphones.

She said the county could begin demanding fine payments within a week.

Linder said her client, Phaeth Holapatiphone, would have been better off financially facing a criminal case.

She said the case has less to do with medical marijuana cultivation than with due process and excessive fines under the state government code and U.S. Constitution.

Within a year, she said, the interest alone -- 10% per month -- will exceed the original fine.

Orange County lawyer Jeffrey Dunn, who was retained to defend the county's ordinance, said the ordinance is lawful and that Linder's clients are angry because they were caught.

"They just don't like the ordinance," Dunn told the judge. "They don't like the fact that it has an administrative fine, or a per diem assessment penalty or all the things this ordinance does to abate a public nuisance."

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

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