Fresno County supervisors to hear marijuana appeals

The Fresno BeeJuly 14, 2014 

Pulled marijuana plants are dumped into a trailer.

FRESNO BEE FILE Buy Photo

Fresno County supervisors are considering boosting a contract with a law firm to defend them in lawsuits over their medical marijuana cultivation ordinance from earlier this year.

Supervisors will also hear two appeals Tuesday to the ordinance.

Several lawsuits were filed against the county after the Fresno County Sheriff's Office started enforcement, which treats medical marijuana cultivation similar to a code enforcement violation.

The county fines are $1,000 per plant found at the time of inspection and 10% interest per month for any unpaid portion of the fine.

The county hired -- and set a cap of $50,000 -- for the Best, Best & Krieger law firm. But with a handful of cases filed, the county will raise that cap to $210,000.

Andreas Borgeas, Fresno County Board of Supervisors' chairman, said he supports increasing the cap for the private law firm.

"It's a fund, it's not like it will go to just one lawsuit," he said. "We anticipate there will be challenges, especially at the beginning, but we believe we are on strong legal footing."

He said the medical marijuana ordinance is about public safety. Dozens of violent crimes -- including murder -- have been documented because of marijuana cultivation.

"If you calculate the street value per plant, there must be a disincentive so (losing plants) does not become a cost of doing business," he said.

Raising the law firm's cap is on the supervisors' consent agenda, which means the issue may get approved without board discussion.

The county also will hold appeal hearings Tuesday afternoon for two people who allegedly violated the ordinance.

The fines are $26,000 for Carri McCorkill of Squaw Valley, and $99,000 for Xiongh Thao, who lives near Laton.

In Thao's case, there were no items on his property that were in violation when the notice was issued, said Brenda Linder, who intends to represent him at Tuesday's hearing.

As for McCorkill, county reports said she was an absentee owner and told deputies her renter was growing marijuana without her knowledge.

It's a similar to an appeal county supervisors settled earlier this year with an absentee owner's property near Kerman. In that case, the board ruled that out-of-town property owner Ronald Larson, was responsible for 10% of a $30,000 fine after his renter was found with 30 plants on Larson's property land.

Linder, who also is defending a woman who pulled 43 plants out of her mother's yard near Del Rey and was ordered to pay a $43,000 fine in March, said the $1,000 per plant and 10% per month interest rate has no precedent in the county's codes.

She filed a lawsuit on behalf of Phaeth Holapatiphone after she was ordered by deputies to remove the plants. She pulled the plants the same day.

Linder said code enforcement ordinances normally allow 15 days for a violator to remove a nuisance before fines are imposed. She also said the per plant fines and interest rate on unpaid fines are draconian.

Linder said the Holapatiphone lawsuit is only about the financial aspects of the county's ordinance, not whether the county can have an ordinance outlawing medical marijuana cultivation.

"The board's overreaction and failure to comply has to do with their over-zealousness to eliminate anything marijuana in the county," she said.

A Fresno County Superior Court judge ordered the county not to collect fines against Holapatiphone until her case was completed.

A hearing on the Holapatiphone case is scheduled in September.

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

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