Oct 272011

Kern County has changed the way it enforces a controversial ordinance limiting the cultivation of medical marijuana after a judge raised concerns about its tactics.

The law, passed in August, was challenged in court by attorney Phil Ganong on behalf of several medical marijuana collectives and advocates, James Burger reports in the Bakersfield Californian.

Kern County Superior Court Judge David Lampe refused Ganong’s request to block implementation of the ordinance limiting grows to 12 plants on a single parcel while the law was being litigated.

But Lampe threw in a twist by also saying he was concerned that the Kern County Sheriff’s Department was prosecuting violations of the county rule as a criminal act and eradicating the plants immediately.

The 12-plant limit, he noted, is a land-use law that makes growing more than a dozen marijuana plants a nuisance similar to those posed by trash-filled residential yards or unsecured empty buildings.

Owners of most nuisance properties are allowed a hearing process and the opportunity to clean up the violation before county officials clear the land and impose financial penalties.

Kern Chief Deputy County Counsel Mark Nations told Lampe in court that during sheriff’s raids, all marijuana plants exceeding the limit of 12 are destroyed immediately.

Lampe asked Nations why the county was treating the owners of marijuana plants differently than the owners of trash-filled lots — then echoed the concern in his ruling.

Kern County Chief Deputy Sheriff Francis Moore said Wednesday that following Lampe’s ruling, sheriff’s officials met with county lawyers and Kern County Engineering, Permit and Survey Services officials — who enforce land-use code violations — and decided to change the way the ordinance is enforced.

County officials still plan to enforce violations of the ordinance, but it will be code enforcement officers and not sheriff’s deputies handling the case.

Moore said that in cases where there is a violation of county ordinance but not of state criminal laws, the Sheriff’s Department will refer the situation to code enforcement and the county will follow a standard procedure for allowing land owners to get rid of the problem and come into compliance.

One of the first cases enforced under the new procedure will go to the Kern County Board of Supervisors Tuesday afternoon, said Chris Hengst, a supervisor with county code compliance.

In that case, sheriff’s officials learned of an illegal marijuana grow operation in the 3300 block of south Dorothy Street in southeast Bakersfield just south of Mira Monte High School, Moore said.

Deputies served a search warrant at the location and determined the property was not in violation of state law but was in violation of the county ordinance, Moore said.

There were 26 marijuana plants being grown, Hengst said.

Moore said no criminal charges were brought as a result of the raid, no marijuana plants were initially destroyed by sheriff’s deputies, and the violation of the county ordinance was referred to code enforcement.

Moore said the property owner did call the Sheriff’s Department the day after the raid and asked to have 14 of the plants removed.

Moore said that under the county ordinance, each day there are more than 12 plants on the property counts as a separate violation of the ordinance and that carries a stiff $1,000 fine and a potential misdemeanor sentence of six months in jail.

Hengst said a hearing on the penalties against the property owner for the violation of the 12-plant limit will be held before Kern County supervisors on Nov. 1 at 2 p.m.

Attorney Ganong said he still believes that medical marijuana patients growing their own pot can and should challenge the county’s limit if 12 plants do not provide enough marijuana to meet their needs.

Groups of medical marijuana patients that are cooperating to grow marijuana for a group’s use should also challenge the limit, he said.

But Ganong counts the county’s enforcement change as a victory.

“That’s great. I think we’ve accomplished part of what we set out to do,” he said.

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