ACLU files suit over Fresno's marijuana growing ban

The Fresno BeeMay 27, 2014 

Part of the marijuana garden found by Fresno County sheriff's deputies near Fruit and American avenues, near Easton.

PHOTO PROVIDED BY FRESNO COUNTY SHERIFF'S OFFICE

Marijuana cultivation bans supported by the city of Fresno and Fresno County are counter to state law, according to a lawsuit filed Tuesday in Fresno County Superior Court by the American Civil Liberties Union.

The suit, filed on behalf of two Fresno women -- Joan Byrd and Susan Juvet -- said the city and county bans are pre-empted by state law that allows severely ill Californians to grow and use marijuana.

Byrd, 67, is a former Fresno County Sheriff's Department employee, said she uses medical marijuana to alleviate pain from fibromyalgia, severe osteoporosis and stomach problems from a botched surgery, the suit said.

Using medical marijuana relieves her pain, the suit said.

Juvet, 49, uses medical marijuana to treat fibromyalgia and arthritis because she is allergic to other prescription pain medications, particularly those containing morphine, the lawsuit said.

"She is currently relying on the medical marijuana that she has grown," the lawsuit said.

The ACLU lawsuit said the city and county bans attempt to pre-empt state law. In 2004, the state established rules that allowed qualified medical marijuana patients to possess 12 immature or six mature plants and up to a half-pound of dried, processed marijuana.

Novella Coleman, a Fresno lawyer who filed the case on behalf of the two women, added: "These patients are an afterthought. The bans conflict with state law."

The county's ban is in effect and two residents were fined $1,000 per plant under the county's civil code. One of the residents filed a lawsuit against the county claiming its per-plant fines are excessive; a judge stayed the fines until legal proceedings are complete.

Counties and cities can establish higher thresholds, but not lower, the law said.

The city's ban is in a 120-day grace period. Meantime, Fresno City Council members have formed a subcommittee that is meeting with members of the medical marijuana community, lawyers and police.

In 2012 the city of Live Oak in Northern California enacted a cultivation ban that was upheld by lower-level courts. The state Supreme Court declined to hear the case, keeping lower-court rulings intact. As the Live Oak case was winding through the courts, Fresno County and Fresno city officials approved bans with civil fines of $1,000 per plant.

But Coleman said the Live Oak case is still not settled law.

There was not a full briefing about pre-empting state law by banning cultivation, she said.

In addition, Coleman said, Live Oak is a small community, about 8,500 population, and far fewer people are affected by the ban compared with Fresno City and Fresno County, which have a combined population of nearly 700,000.

Both Fresno police and county sheriff's deputies have linked marijuana operations with violent crime and have seized thousands of pounds of marijuana from suspects at growing operations. Many cases involved medical marijuana patients.

Fresno City Attorney Douglas Sloan said last week that a draft of the city's revised marijuana cultivation ordinance would allow a maximum of four plants per residence and establishment of one nonprofit cooperative in the city to let marijuana patients pool their crop, but also buy supplies from other vendors. There will be no limit on the number of members and no rules about where members can live, he said.

Sloan and Fresno County Counsel Dan Cederborg both said they had not seen the ACLU suit and were unable to comment Tuesday.

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

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