Judge puts Fresno County medical marijuana fines on hold

The Fresno BeeMay 2, 2014 

Marijuana seized by Fresno County sheriff's deputies during a 2013 raid.

FRESNO BEE FILE PHOTO

A Fresno County Superior Court judge ruled this week that county officials can't start collecting fines from two property owners who appealed the new medical marijuana cultivation ban.

His order affects two properties near Kerman and Del Rey where medical marijuana was discovered and removed. Both cases were heard by the Fresno County Board of Supervisors, which approved the fines in March.

Judge M. Bruce Smith said the county must await the outcome of two appeals, including one filed by Phaeth Holapatiphone, who in February was caught growing 43 medical marijuana plants in the backyard of her mother's home near Del Rey. Supervisors approved a fine of $1,000 per plant -- totaling $43,000.

Smith's ruling was in response to arguments made in his Fresno courtroom two weeks ago.

Fresno lawyer Brenda Linder filed suit against the county because she claims that the fines, 10% monthly interest rate and $100 daily fine per plant are excessive and don't adhere to state Government Code.

"I was trying to get them to stop enforcing it and stop collection," Linder said.

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 and then ordered them to uproot her medical marijuana plants.

Her clients were surprised they were fined after the plants were pulled because their understanding of the ordinance was that fines would not be levied if the plants were pulled out within 15 days.

Linder called the judge's order a "minor victory." The judge made no ruling on the fines or procedures used by sheriff's deputies, who she said need search warrants.

Orange County lawyer Jeff Dunn was retained by the county for its defense. He could not be reached for comment Friday.

Another hearing on the Holapatiphone case is scheduled for May 14.

Meanwhile, supervisors on Tuesday will hold an appeal hearing for a Bay Area property owner, who was hit by a fine because his tenant was growing 30 medical marijuana plants in a garage near Kerman.

The appeal was granted by supervisors when a lawyer for the property owner, Ronald Larson, sent a letter to the board.

If the outcome doesn't clear Larson of the fines, Fresno lawyer Brady McGuinness said they will consider legal action.

In a letter to the board, McGuinness said Larson and the property management firm he hired to watch the house reported marijuana being grown outside the home northeast of Kerman in October.

"A routine inspection of the property revealed what appeared to be a cannabis patch growing in the yard," the letter said. "Our client (Larson) immediately sought abatement of this issue by reporting his concern to the sheriff."

In October, the property manager told the tenant, Bret Charles Harmon, to pull up the marijuana plants in the yard. In February, sheriff's deputies determined that Harmon had moved his marijuana garden inside the garage.

McGuinness said Larson was told he did not have to show up for the supervisors' hearing in March because Harmon was responsible for the ordinance violation. But supervisors fined both Larson and Harmon and are threatening to slap a lien on Larson's property to collect $30,000 in fines.

McGuinness said the responsibilities of land owners are not clearly delineated in the ordinance. He views the county's ordinance as legally defective with exorbitant penalties.

"These ordinances seek to impose draconian per-plant penalties against a land owner who had no knowledge of, or reason to suspect, any violation," the letter said. "Such strict liability penalties are tantamount to an unlawful forfeiture and taking by the government. There is simply no authority for such penalties."

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

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