Judge finds fault with Fresno County’s medical marijuana ordinance

In a strong rebuke of Fresno County’s medical marijuana cultivation ban, a Fresno County Superior Court judge said that $99,000 in fines should not have been imposed on a Laton man who got rid of his plants before Fresno County Sheriff’s deputies could cite him.

Judge Dale Ikeda said Xiongh Thao, who was growing 99 plants with a medical marijuana recommendation, should have had 15 days to pull the plants before facing a citation.

Sheriff’s deputies went to Thao’s home in March 2014 and told him he needed to get rid of his plants, but they didn’t cite him because they had no citations with them. Three days later, deputies returned with a citation, but Thao had already removed all his plants. The Fresno County Board of Supervisors later fined Thao $1,000 per plant under the county ordinance, which had gone into effect in February 2014.

But in a decision issued Friday, Ikeda said Thao should not have been fined. He reversed the imposition of the $99,000 fine and went a step further, saying that language in the ordinance allows 15 days for removal of the plants, so even if he had not removed the plants before deputies returned with a citation, the plants could have remained without a citation or fines imposed until after 15 days had passed.

It’s not clear if the judge’s decision will have wider implications, but lawyer Brenda Linder, who represented Thao, said the judge’s decision is “not controlling, but it could be persuasive.”

She said the judge went “further than I expected,” especially as it relates to the 15-day notice.

“It certainly should make the county and the city (of Fresno) and other local jurisdictions sit up and take notice,” she said.

The Thao case references only Fresno County’s ordinance, which covers unincorporated areas of Fresno County.

Jeff Dunn, a private lawyer who represented the county, said during the trial in May that the county could find Thao in violation of the ordinance because deputies found the marijuana plants on his property, even though they didn’t issue a citation until days later.

During the hearing, Dunn also said that the county has determined any cultivation of marijuana is a danger to the public and that plants could be removed without giving Thao an opportunity to remove the plants himself. Dunn said that the marijuana ordinance was about the threat to public safety, not a zoning issue. Ikeda took a different view.

In his ruling, Ikeda said “the county has failed to prove immediate and imminent threat ... or an immediate danger to health or safety.” He said the county needs to provide a reasonable time to abate the nuisance before imposing penalties.

The judge said he attempted to reconcile state Government Code, which “shall provide for a reasonable period of time ... for a person responsible for a continuing violation to correct” or remedy the problem before fines are imposed, with the county ordinance that requires immediate plant removal.

Ikeda said the ordinance is a zoning issue because its language says “medical marijuana cultivation is prohibited in all zone districts in the county.” He also said “it is clear that the ordinance is regulating the use of land and is, therefore, a zoning ordinance.” Because it’s a zoning ordinance, Ikeda said, time must be allowed for a resident to remedy the problem.

Last year, Fresno County supervisors approved paying up to $210,000 to Dunn’s firm, Best, Best & Krieger to defend its medical marijuana ordinance. Dunn previously won a state appellate case that tested a medical marijuana ban two years ago. The state Supreme Court later chose not to hear the case, upholding the ban, which triggered similar cultivation bans, including Fresno County’s.

Dunn said Friday he had not read the ruling because he was on the road. He deferred questions to Fresno County officials.

Dan Cederborg, Fresno County counsel, said Friday that the county couldn’t fully comment on the case.

“While we disagree with the trial court’s legal and factual conclusions, due to the complexities and unique circumstances of the Thao case it will take further analysis of the court’s decision before determining the county’s next steps,” he said.

The $1,000-per-plant fines were approved last year to send a zero tolerance message about marijuana cultivation in Fresno County after dozens of violent crimes occurred in 2012 and 2013 related to marijuana cultivation. Several serious incidents occurred on properties where growers had medical marijuana cards.

Last month, Fresno County Sheriff’s Capt. Bob Kandarian said the county has had fewer growing operations and less violence since enacting the ordinance. In 2013, 550 cultivation sites were found, compared to 330 last year. By May of last year, 132 marijuana gardens had been seized, compared to 102 this May, he said.

Ellen Komp, deputy director for the California branch of the National Organization for Reform of Marijuana Laws in San Francisco, said she was encouraged by Ikeda’s ruling.

“I’ve been concerned about the lack of proper noticing I have been hearing about in Fresno,” she said Friday. “In general, I think it’s very important that Fresno citizens have been pushing back.”

She said Ikeda’s decision may affect the way other counties and cities consider imposing bans of medical marijuana.

“It feels like democracy worked today,” she said.