Oct 132010

By Bud Green

A new ordinance prohibiting outdoor medical marijuana cultivation in Fresno County won’t be enforced immediately, a judge ruled Wednesday.

A temporary restraining order was sought by four medical cannabis collectives and a patient-grower in a lawsuit filed Friday in Fresno County Superior Court. The suit targets the emergency ordinance passed Sept. 14 by Fresno County supervisors, which calls for an immediate ban on all outdoor pot gardens.

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That law “constitutes an ex post facto law which results in the taking of plaintiffs’ and others’ similarly situated vested property rights without due process,” says the suit filed by Fresno attorney Brenda Linder. Without ruling on that issue, Judge Jeff Hamilton granted the temporary restraining order and set the issue for further hearing Nov. 3, one day after state voters will decide whether non-medical use of marijuana should be legal for adults 21 and up.

“In looking at this, at the time the plaintiffs planted their plants, there was no ordinance prohibiting them from doing so,” Hamilton said. While he took note of two recent Fresno-area shootings involving medical marijuana, as did the Board of Supervisors in passing the ordinance, he termed them “aberrations.”

“It doesn’t appear to the court that there is an immediate danger from this ordinance not being enforced,” Hamilton said.

Deputy County Counsel Mike Linden argued that the Sept. 14 ordinance did not prohibit all marijuana cultivation.

“This is not a complete ban,” Linden said. “It’s merely a land-use ordinance.”

It’s more than that, Linder argued on behalf of the collectives. The ordinance requires growers to “remove or destroy their property and medicine, or to risk being in violation of this ordinance and to risk intrusion into their property by county officials or law enforcement officers in the forced removal of their plants.”

After the hearing, Linder told reporters that thefts from medical marijuana gardens has increased since the ordinance was passed. Growers have been reluctant to report the thefts, she said, because of concerns that the Sheriff’s Department would take enforcement action against them instead of tracking down the thieves.

“I am very happy that this part of the system works,” Linder said. “I have a problem with the part of the system that created the ordinance, just because they didn’t like state law” regarding medical marijuana.

Linder’s suit was filed on behalf of Earthsource Collective, Garden Ablaze, Central Valley Collective, Healing Health Center and William Carney, an individual grower. Named as defendants are Fresno County, Sheriff Margaret Mims and Alan Weaver, director of public works. The Nov. 3 hearing will determine whether a preliminary injunction will stay enforcement of the ordinance until the matter goes to trial.

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