Pot in California

Second time not a charm. Appellate court says Fresno County can't fine pot grower $99,000

Fresno County has a marijuana ban that keeps the Sheriff's Office busy finding illegal farming sites.
Fresno County has a marijuana ban that keeps the Sheriff's Office busy finding illegal farming sites. Fresno Bee file

Three years ago, a Superior Court judge criticized Fresno County’s medical marijuana cultivation ban, ruling that a $99,000 fine could not be imposed on a Laton man who got rid of his plants before sheriff's deputies could cite him.

Undeterred, lawyers hired by the county appealed Judge Dale Ikeda's ruling.

On Thursday, the 5th District Court of Appeal in Fresno sided with Ikeda, saying the $99,000 fine against Xiongh Thao could not be imposed.

"Mindboggling," Fresno attorney Brenda Linder said of the county's insistence on spending taxpayer money on an ordinance that two judges have now ruled lacks due process.

Linder represents Thao, who was growing 99 medical marijuana plants on his property in Laton when sheriff's deputies showed up on March 3, 2014, saw the marijuana plants, and advised him that as of Feb. 7, 2014, it was illegal for anyone to grow or cultivate marijuana in the county.

"The deputies then left the property and Thao immediately removed and destroyed the plants," the appellate ruling says.

Three days later, sheriff's deputies returned to Thao's property and served him with a citation even though his plants were destroyed, the appellate ruling says. The Fresno County Board of Supervisors later fined Thao $1,000 per plant under the county ordinance, which the Board of Supervisors adopted in January 2014.

In his ruling in June 2015, Ikeda said Thao should not have been fined, saying the county's ordinance allows 15 days for removal of the plants.

In its appeal, the county argued that the fines "are intended to punish the violators whether or not the nuisance is abated within a reasonable time." The county also said the $1,000 per plant penalty is determined on the date of the inspection and "can be imposed regardless of when the nuisance was abated."

But the appellate court said the state's Government Code required the county to give Thao "a reasonable time to abate the nuisance before imposing the fine." Further, the justices said, the citation given to Thao "clearly stated he had 15 days to abate the nuisance before penalties would be imposed and that the penalties would be assessed only if Thao failed to take action to cure the violation."

In addition, the county argued the fine was justified because Thao's plants were an "immediate threat to public safety." But the appellate court noted that the deputies went to Thao's property, saw the plants and left. "This apparent lack of urgency is inconsistent with an immediate threat to public health and safety," the ruling says. "If the deputies considered the threat immediate, they could have summarily abated the nuisance."

The county's spokesman, Jordan Scott, said county officials "respectfully disagree" with the appellate ruling. Scott said the county has not decided whether to appeal the ruling by Presiding Justice Brad Hill and Justices Herbert Levy and Jennifer Detjen.

Scott noted the the ruling only applies to Thao's case and the county has since amended its ordinance.

"The ruling does not have implications for how the administrative fines under county ordinances are to be assessed," Scott said. The appellate ruling also does not overturn any existing ban under the county's medical marijuana ordinance, Scott said.

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