Feb 252015

Fresno County supervisors voted 5-0 Tuesday to approve several changes to its medical cannabis ordinance, but the county’s dual bans on dispensaries and cultivation remain firmly in place.

The amendments were intended to clarify the county’s stated claims that it can pretty much do what it wants in terms of enforcement. The county can show up without notice and rip down your plants, with or without your permission to go on the property. The county can impose fines of $1,000 per plant, also without advance notice. These and other flawed procedures became evident soon after Ordinance 14-001 took effect in 2014, and several court cases have been filed to appeal fines totaling tens of thousands of dollars. More heavy fines and court appeals are expected this spring as Fresno County deputies begin a new round of enforcement.

Tuesday’s staff report contains a red-lined version of the ordinance, which changed fourteen subsections dealing with citations, fines and abatement. The most significant changes are listed below. Supervisors did not address or change the legal definition of “responsible party,” an issue that plagued the board last year when considering whether to fine non-growing tenants and non-resident property owners.

10.60.070 Prohibited medical marijuana cultivation declared a public nuisance.
The establishment, maintenance, or operation of any prohibited cultivation of medical marijuana, as defined in this chapter, within the County is declared to be a public nuisance and each person or responsible party is subject to abatement proceedings under Chapter 10.62 and/or administrative fines pursuant to Chapter 10.64.

10.60.080 Penalties for violation.
A. Any person violating any of the provisions of this Chapter shall be guilty of a misdemeanor and subject to the penalties as set forth in Chapter 1.12, Chapter 10.62 as well as the administrative penalties as set forth in Chapter 10.64. Violators shall be subject to any other enforcement remedies available to the County under any applicable state or federal statute or pursuant to any other lawful power the county may possess….
C. In the event any civil suit or action is brought by the County to enforce the provisions of this chapter, the person responsible for such violation shall be liable to the County for costs of the suit, including, but not limited to, attorney’s fees. This provision shall not apply to the appeals to Superior Court by persons cited or served a notice of abatement order provided for in Section 10.62.080(E) or Section 10.64.070(E).

10.62.010 Purpose.
This Chapter is enacted pursuant to Government Code section 25845 and complies with Health and Safety Code section 17980. Notwithstanding any other provision of this code, whenever a condition or use exists upon private land which is a public nuisance, the procedures set out in this chapter may be used as an alternative to any other way or proceeding to abate or manner of obtaining abatement which is set forth in this code. The procedures in this chapter are in addition to and concurrent with the provisions of Chapter 10.64 of this Ordinance Code and do not preempt or prevent a citation being issued pursuant to Chapter 10.64 immediately upon confirmation of the violation of Chapter 10.60 of this Ordinance Code.

10.62.040 Abatement order.
…E. The notice shall also state that if the work is not completed within the number of days specified on the notice, or hearing has not been requested in accordance with section 10.62.070, the County may abate the nuisance without further notification and the property owner may be responsible for all costs associated with the investigation and abatement of the public nuisance and the additional administrative penalty of $100 per violation per dav that said violation continues past the abatement deadline.

10.62.050 Immediate threat to public health or safety – Summary Abatement.
A. The public official, upon making a The Board of Supervisors of the County of Fresno has finding found and determined that the cultivation of marijuana creates an immediate and imminent threat or danger exists to the health, safety or welfare of the occupants or the public. may order a oummary abatement of tho nuisance.
B. Upon such finding, tThe public official may order a summary abatement or require immediate action on the part of the property owner or lessee to eliminate the nuisance constituting the hazardous condition violation of Chapter 10.60. Summary abatement pursuant to this Section 10.62.050 is an alternative to the notice of abatement order process set forth in Section 10.62.040 and the remaining sections of Chapter 10.62 of this Ordinance Code. Summary abatement procedures pursuant to this Section 10.62.050 are in addition to and concurrent with the provisions of Chapter 10.64 of this Ordinance Code and do not preempt or prevent a citation being issued pursuant to Chapter 10.64 immediately upon confirmation of the violation of Chapter 10.60 of this Ordinance Code.
… 4. If theThe public official finds that an immediate throat to public health, safety or welfare exists, and determines that it is unhealthy or hazardous to delay abatement action, he/she may order County staff or contractors to abate the condition. Abatement may be, but is not limited to, removal of plants that are the subject of the violation, disconnection or shutting off substandard utility connections, clean-up and disposal of rubbish or other materials which threaten public health; and
5. The property owner, lessee and/or responsible party shall be liable for all costs associated with this abatement, including administrative, labor, material and other costs; and
6. If necessary to the protection of occupants or members of the public, Tthe public official shall post warnings to all persons not to enter the premises stating the reasons therefor.

10.62.060 Request for a hearing regarding abatement order
A. Ahearing regarding an abatement order may be requested by filing a written request for a hearing with the main office ofthe public official whose department issued identified in the abatement order prior to such date set for the abatement of the nuisance.

10.62.080 Hearing.
…B. Upon the conclusion of the hearing, the Board of Supervisors will make a determination based on the evidence presented at the hearing. In the event that the Board of Supervisors declares the condition or use is a public nuisance, the Board may direct the owner(s) to abate the same within thirty (30) days after posting and mailing and impose an administrative fine as provided for in Chapter 10.64 if such administrative fine has not already been issued.

10.62.090 Failure of property owner to abate.
If the property owner, lessee or other responsible party fails to abate the nuisance within the time specified in the Notice bv the public official, or after appeal of the notice, by the Board of Supervisors or the public official, and is not granted a time extension, the public official, upon authorization of the department head, is authorized to secure, remove, demolish, raze or otherwise abate the nuisance at the expense of the owner(s).

10.64.010 Effect.
This ordinance does not in any way supersede Fresno County Ordinance Code Chapter 1.123 Administrative Fines. However, the provisions of Chapter 10.60. 10.62. and 10.64 take precedence over Chapter 1.13 with respect to any violation of Chapter 10.60 and nothing shall prevent the immediate issuance of a citation pursuant to this Chapter 10.64 with or without a notice of order of abatement upon confirmation of a violation of Chapter 10.60.

10.64.040 Administrative penalty.
A. Any responsible party violating any provision of Chapter 10.60 of this code, which is a misdemeanor, that is determined to be a public nuisance may be issued an administrative citation by a public official or the Board of Supervisors in accordance with this chapter. The administrative citation penalty for each and every medical marijuana plant cultivated in violation of Chapter 10.60 shall be: (1) One Thousand Dollars ($1,000) per plant; plus (2) One Hundred Dollars (S100) perplan per day the plant remains unabated past the abatement deadline set forth in the administrative citation notice of abatement order.

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