Marijuana enforcement setback for Fresno County

Tuesday, June 16, 2015
Marijuana enforcement setback for Fresno County
A judge has now dented Fresno County's attempt to control cultivation of marijuana.

FRESNO, Calif. (KFSN) -- Fighting marijuana fines may be working. A judge has now dented Fresno County's attempt to control cultivation of marijuana.

When sheriff's deputies chop down marijuana plants on a property, there are criminal consequences. And beginning last year, each destroyed plant meant $1,000 fine for the property owner. But in a new ruling, a Fresno County judge said one $99,000 fine should not stick.

"It applies to (only) this case, but I think that ruling is going to have precedent for other cases coming up which says the property owner has the opportunity to do the abatement," said ABC30 legal analyst Tony Capozzi.

The issue is time. State law, and the original county ordinance, allowed a reasonable amount of time to get rid of the pot before fines come into play. In many cases, sheriff's deputies remove the plants right away, citing the public safety risk. In the case of Xiongh Thao, they didn't, but it was all gone by the time they came back three days later.

"The property owner has a reasonable period of time to try and abatement the problem and if he does he shouldn't be fined," Capozzi said. "I think the county acted too quickly in this case. It was a rush to judgment."

But so far the ruling hasn't really had much effect at the county. In fact, the board of supervisors voted Tuesday, four days after the ruling, to confirm seven marijuana fines, and enforcement efforts continue.

"The court upheld the county's ability to ban cultivation of marijuana," said Sheriff Margaret Mims. "We have already adjusted the ordinance and notifications to avoid further confusion."

Attorney Brenda Linder, who won the case for Thao, says the newer ordinance resembles the tactics deputies are using in the field.

"In the ordinance now it states they can simultaneously pull the plants or come on the property, hand you a notice and impose the fines immediately," she said. "They have that option, or they can give time to abate. The judge's ruling says that's not appropriate or authorized under state law either."

County attorneys haven't decided yet whether to appeal the ruling. They're also facing several legal challenges to other fines, all of which would be heard by the same judge.