Nov 032010

By Bud Green

Medical marijuana growers have until midnight Nov. 30 to legally harvest their outdoor plants in Fresno County, a judge has ruled.

The preliminary injunction granted Wednesday blocks Fresno County from enforcing its ban on outdoor cultivation, which was passed by supervisors as an urgency ordinance Sept. 14. Fresno County Superior Court Judge Jeff Hamilton seemed skeptical of the county’s arguments supporting the ban, which included two widely circulated law enforcement “white papers” on medical marijuana. Those reports are “replete with hearsay, inadmissible opinion and conjecture,” Hamilton told Irvine attorney Jeffrey Dunn, who appeared as co-counsel for defendant Fresno County.

“I don’t believe the county has shown any immediate danger,” said Hamilton, echoing comments he made in granting a temporary restraining order against the county in mid-October.

Hamilton also took issue with the county’s claim that cultivating medical marijuana was not permitted under current zoning regulations. The state’s Medical Marijuana Program Act intended for patients and growers to work collectively, he said, as the legal alternative to obtaining their marijuana from street dealers.

“How else are they going to get it, from the marijuana fairy?” Hamilton asked.

Fresno attorney Brenda A. Linder, appearing on behalf of four local medical cannabis dispensaries, said the county showed no evidence of an “imminent threat” required to justify an emergency ordinance. She said Proposition 215 grants statutory rights to patients to grow and possess medical cannabis, but Dunn countered that it only provides an affirmative defense to criminal prosecution.

Hamilton then added his own analysis to the mix, assigning property rights to growers who had plants in the ground before the ordinance was passed. Using tomato plants as an example, he likened collectives to “tomato timeshares” with fractional ownership interests among members.

“Based on that ownership interest, they can take these (plants) to fruition,” Hamilton ruled. He declined Linder’s request for a ruling on whether those same ownership rights would apply to plants still in the ground after Nov. 30.

“There’s going to be an enforceability problem,” Linder cautioned, as well as potential lawsuits from patients who wish to plant outdoors this spring. While it’s unclear how and when the ordinance will be enforced, supervisors had previously assigned the task to Sheriff Margaret Mims.

After the hearing, Dunn said, “We’re generally pleased with this decision because it recognizes the validity of a county ordinance, and further that there’s no constitutional or vested right for outdoor cultivation of marijuana. Also, the court gave very limited exceptions to the plaintiffs, who can only grow their existing plants until Nov. 30, at which time they’ll be subject to the county ordinance along with everyone else.”

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