How to file an appeal

 

This page explains how to file an appeal for cannabis cultivation fines issued by Fresno County.

Notice to Abate
Read the Administrative Citation
File a Request for Hearing
File a Request to Disqualify
Notice of Hearing
Prepare your hearing strategy
Day of hearing
I lost my appeal … now what?

Disclaimer: The information on this page is not intended to serve as legal advice. While we advocate for qualified patients, the Fresno Cannabis Association is not a law firm, cannot and does not act as your attorney, and is not a substitute for advice from an attorney. If you have been cited for a violation in the City or County of Fresno, it is strongly recommended that you contact a Fresno cannabis attorney immediately.

Notice to Abate

Under Ordinance 15-003, growers may receive a Notice to Abate that sets a deadline to remove your plants. That rarely happens in actual practice, however. If you do receive a Notice to Abate, read the instructions carefully. The notice should explain how to appeal the notice to the Board of Supervisors, including a deadline. Alternatively, you can choose to remove your plants without appealing, which should (in theory) stop any further enforcement action. You may be visited by deputies or code enforcement to verify the plants are gone.

Read the Administrative Citation carefully

Most growers receive an Administrative Citation without advance notice. Fresno County uses two forms to cite growers and property owners. The forms may be attached, or they may be served or mailed separately. The county’s citation process and forms are all subject to change, so these instructions may not apply in all cases.

Administrative Citation: The first page is titled “Administrative Citation.” The top of the page lists the following information:

  • Date
  • Case No.
  • Citation No. (may be blank)
  • Location of Property
  • APN (Assessor’s Parcel Number; you can use the county lookup page to verify it is accurate.)
  • Date of violation. This appears in the sentence “The following Fresno County Ordinance Codes were violated on the following date: _______ and on the property noted above:” The citation date and the date of violation may not be the same.

The amount of the fine appears in a bold box, along with a payment due date. The fine is calculated at $1,000 per plant. An added $100 per plant can be added for plants that remain “unabated past the abatement deadline,” but since no Notice to Abate is given in most cases, the $100/plant fine is not usually imposed.

The “Appeal” section is the most important part of the citation. It reads as follows:

You have the right to contest this Citation by filing a request for hearing within Fifteen (15) days from the date this citation was mailed (noted below). You may file the appeal at the Clerk to the Board of Supervisors office at 2281 Tulare St., Fresno CA 93721. The Fresno County Board of Supervisors will preside at the hearing and hear all facts and testimony presented and deemed appropriate. The hearing will be set for a date that is not less than ten (10) days from the date of mailing and posting of the notice of hearing.

Unfortunately, this section of the notice doesn’t explain what happens if you don’t appeal, but an explanation does appear on the second form:

“If you fail to timely request an appeal hearing, all rights to appeal the imposition of the fines is waived.”

Don’t let this happen to you! File your appeal before the deadline!

The bottom of the form lists the recipient’s name and address. The address is usually where the plants were observed, but a different address may (or may not) be shown for non-resident property owners. If you are a property owner and you learn your tenant was cited, you may be at risk of citation, too. Growers and property owners are equally responsible for violations under the county ordinance.

The form also lists a name and contact number for “Code Enforcement staff,” but citations are most often issued by Fresno County sheriff’s deputies. If the citation was issued in person instead of being mailed, the deputy should note the date of personal service.

Notice of Violation: The second form is titled “Notice of Violation of Fresno County Code Chapter 10.60.060 and Imposition of Fines.” It contains much of the same information shown on the Administrative Citation. The first sentence reads: “You have been determined to be a responsible party for the property located (listed) above.” The legal definition of “responsible party” is important and is discussed in detail below.

File a Request for Hearing to start your appeal

The Request for Hearing form is not posted online. You can obtain it from the office of the Clerk to the Board of Supervisors, which is on the third floor of the Hall of Records at 2281 Tulare St. in downtown Fresno. Although the form is short, it’s more than a formality. You should think about what defense(s) you want to raise before you complete and submit the Request for Hearing, not when you’re standing in front of a hostile Board of Supervisors.

The Request for Hearing form can be used as evidence, so take care when filling it out. Prepare and attach a printed copy of your grounds for appeal if you don’t have enough room on the form. If your plants were secured by fencing and/or not visible from public streets, consider attaching photos of the property, including street views. (The Sheriff’s Office will present its own photos, parcel map and investigative report at the hearing.)

If your plants were seized and destroyed when the citation was issued, describe whether the deputies had consent to enter the property and/or whether they had a property inspection warrant. If you were detained by deputies or threatened with arrest, include a detailed summary of how the “inspection” took place.

Before you submit your form, consider your arguments carefully. Check the Cannabis Fine Appeals page, and listen to several appeal hearings. The arguments that you think are fair and valid may not work. Supervisors have rejected the following grounds for appeal:

  • Medical need of qualified patient(s).
  • Patient or primary caregiver status.
  • Fine prohibited/pre-empted by state law (Prop. 215/SB 420).
  • Non-resident property owner who did not grow any plants, absent any “mitigating factors” (see below).
  • No notice to abate was given before plants were seized.
  • No notice of violation was given before fines were imposed.
  • County growing ban and enforcement procedures are unconstitutional.

Supervisors have occasionally granted appeals, or reduced fines, on the following grounds:

  • Appellant was not a “responsible party” who “caused or contributed to” the cultivation. The Board considers property owners to be responsible parties, whether they grow plants or not.
  • Appellant did not own the subject property when citation was issued.
  • Non-resident property owner who did not grow any plants and provided evidence of “mitigating factors,” including lack of knowledge that plants were being grown, written or oral instructions to tenants that no cultivation was permitted, frequent property inspections to ensure no plants were being grown, and/or eviction of grower(s) promptly after citation was issued. The Board has never enumerated these mitigating factors, and Ordinance 15-003 does not allow the Board members to consider them ‐ but they do.

Make a copy of the completed Request for Hearing form, along with any attachments, and keep it in a safe place. Submit the original to the Clerk to the Board of Supervisors during normal business hours.

Note: The information you write on the Request for Hearing is public record. Supervisors can and will refer to the request form and may ask you about and/or challenge any written statements you make on it. If you file a later appeal in Superior Court, the Request for Hearing will be part of the administrative record reviewed by the judge.

File a Request to Disqualify

This step is optional, but it may help your attorney if you lose your Board appeal (like most people do) and you end up going to court later.

The Fresno County Board of Supervisors passed the growing ban, the heavy fines and penalties, and all of the appeal procedures. Most growers get no Notice to Abate, and the fine citations are also issued without advance notice. The appeal hearings are not held before a fair or neutral hearing body, but before the same Board that wants to punish marijuana growers. The Request to Disqualify puts those claims into writing before the biased appeal hearing can be held for your case.

Download (PDF, 65KB)

Check the Cannabis Fine Appeals page, and listen to several appeal hearings. These will help you to decide whether you will receive a fair hearing or not, plus you’ll pick up some ideas on how to conduct your appeal. Read the second page of the Request to Disqualify while you’re listening to the appeal hearings. (You can multitask, right?) Your bias claim is based on your knowledge of the supervisors’ questions, comments, procedures and actions while sitting as an appeals board. You should not file the Request to Disqualify unless you honestly believe you cannot receive a fair hearing.

Make a copy of the completed Request to Disqualify form and keep it in a safe place. Submit the original to the Clerk to the Board of Supervisors with your Request for Hearing during normal business hours.

Note: The information you write on the Request to Disqualify is public record. The County is unlikely to honor your request and may schedule your appeal hearing anyway.

Watch the mail for your Notice of Hearing

You should receive a written Notice of Hearing by mail from Fresno County several days (or weeks, in some cases) after filing your Request for Hearing. In past cases, some notices intended for non-resident property owners got mailed to the address where the plants were found. Check with your tenant(s) and call the Clerk to the Board’s office at 559-600-3529 to follow up if you haven’t received a Notice of Hearing within a reasonable time.

Note: Ordinance 15-003 allows fines to be imposed even if you didn’t receive any notices.

Check the Notice of Hearing for the time and date of your hearing. This time is not exact and is subject to Board discretion. Several appeals may be heard at the same meeting, and there may be other items on the agenda. You should plan to spend at least three or four hours downtown, sometimes longer when morning hearings get pushed back to the afternoon. Clear your calendar, don’t be late, and be prepared to wait.

Don’t speak English?
If you have limited English skills or speak another language, read the Notice of Hearing carefully. The notice says the county is not required to provide an interpreter for you during your hearing. (That may be a due-process violation; consult your attorney.) You should plan to bring a family member or friend who can translate for you during the hearing. If the same family member or friend has been charged with a cultivation violation, you should each bring your own interpreter.

The interpreter should not respond to the Board’s questions directly. You should have the questions translated for you before deciding whether to respond, then tell the interpreter what you want to say (if anything). You and your interpreter may want to practice this beforehand, because it’s common to get nervous at the appeal hearing.

If you’re assisting a person with limited English skills, you can help by translating this page. Locate the Google Translate bar at the top of the website, then select the proper language.

Review the evidence and prepare your hearing strategy

An appeal before the Board of Supervisors is not a formal court proceeding, but it has many of the same attributes. Members of the Fresno County Sheriff’s Department will act as informal “prosecutors” and briefly summarize the facts of your case, using a written staff report and/or oral testimony. You (or your attorney) will then be asked to present a “defense” of sorts, and you can offer oral and written evidence at that time.

After you make your presentation, Board members ask questions similar to “cross-examination” questions in court proceedings. Their goals are to challenge your evidence, put you on the defensive, and/or get you to make admissions of improper or illegal conduct. Your goal is to keep cool and avoid straying outside the limited scope of the appeal process, even when Board members try to bait you. You can listen to previous Cannabis Fine Appeals for several real-life examples.

Expect to spend several hours reviewing the evidence and planning your defense. Try to break the work up over several days, and practice speaking with a friend or family member. Here’s a road map to help keep you prepare your strategy:

1. Read the ordinance that you’ve been cited for violating.

If you haven’t already done so, take a look at Fresno County Ordinance 15-003. It contains the language that prohibits cannabis cultivation in Fresno County, along with enforcement procedures and penalties.

Fresno County Cannabis Ban – Ordinance 15-003

2. Read the definition of “responsible party.”

Fresno County Ordinance Code Sec. 10.62.020.E reads as follows:

“Responsible party” means an individual, association, copartnership, political subdivision, government agency, municipality, industry, public or private corporation, firm, organization, partnership, joint venture or any other entity whatsoever whose action or actions caused or contributed to violations of codes specified in this chapter.

If you were growing cannabis when you were cited, you’re a “responsible party” as defined by the ordinance. Claiming you were growing for a friend, or acting as a primary caregiver for another patient, probably won’t help your appeal. Worst-case scenario: Your friend or fellow patient could end up with a citation, too.

If you lived on the property but didn’t help grow the plants, or if you’re a non-resident property owner, whether your “action or actions caused or contributed to” the violation is subject to debate. The Board of Supervisors will claim that you are a “responsible party” who should be fined, even if you didn’t grow any plants. Your job at the appeal hearing is to point out that you’re NOT a responsible party because your actions didn’t “cause or contribute to” the cultivation of the plants in question. To make sure you don’t forget to raise this claim, write down this code section on a 4-by-6 card or notebook paper, and bring it with you to the hearing.

3. Review the county’s evidence

Read the Notice of Hearing carefully; it should contain a web link to a written report that the county will use as evidence at your hearing. Alternatively, you can look up your hearing date on the Board’s calendar page and click on that date’s link for “meeting details.” Scroll down the list of meeting items until you find your name, then click on the numbered link on the left.

If you can’t find this report online, you can call the office of the Clerk to the Board for assistance. You may be charged a small fee for photocopies of the report, which is usually several pages long. (It’s OK to ask the clerk or county counsel to waive the copy fee.)

It’s very important to review the county’s report for any errors, false statements or omissions, so don’t skip this step. You have the right to see the evidence that will be used against you before the appeal hearing.

4. Prepare your own evidence

Prop. 215 grower: You may want to bring photographs of the growing site before and after the plants were abated. Take street-view pictures of the property, and pictures of any fencing or greenhouses that obstructed the view of your plants from public rights-of-way. Your goal isn’t to rebut testimony that you were growing plants, but to raise questions about how those plants came to the attention of sheriff’s deputies.

After your plants are seized, sit down and write out all the details: How many deputies were on scene? How many vehicles? Was a translator present, if needed, or did deputies use a phone interpreter? Were you told you would be fined if the plants were not immediately torn down? Were you told you could be arrested? Again, your goal isn’t to rebut testimony that you were growing plants, but to attack the county’s enforcement tactics as lacking in due process. You should strongly consider hiring an attorney to represent you.

Non-resident property owner: You too may want to bring photographs of the growing site before and after the plants were abated. Take street-view pictures of the property, and pictures of any fencing or greenhouses that obstructed the view of your tenant’s plants from public rights-of-way. Your goal isn’t to rebut testimony that your tenants were growing plants, but to show that you had no knowledge that they were.

If you have a lease, rental agreement or other document showing that cannabis cultivation was prohibited at your property, bring the original and make at least five copies to distribute to board members. If you evicted the tenants after receiving your citation, bring written evidence or be prepared to provide oral testimony. If you were unable to frequently inspect the property in question, be prepared to explain why; supervisors may attempt to impose a “strict liability” theory for the plants found on your property, even if you had no knowledge they were there. Review the ordinance language of “responsible party” carefully, and consider hiring a lawyer to represent you.

5. Practice makes perfect

Many people get nervous speaking in public, and appeal hearings are no exception. Five supervisors and the county’s attorney(s) will sit on the dais above you. Sheriff’s deputies will testify against you, and there could be dozens of people sitting in the audience behind you. There could be TV cameras or news reporters present. That’s why you should practice in front of a friendly audience that can help you refine your presentation. The more you practice, the more relaxed you will be when it’s your turn to rise and present your case. If you find written notes or 4-by-6 note cards helpful, make them part of your practice routine.

Day of Hearing

If you filed a Request to Disqualify, you should still plan to attend your appeal hearing. Arrive early, if you can, and let the Clerk to the Board know you’re there before the meeting starts. You can ask her then if any action will be taken on the Request to Disqualify, or whether the hearing will be held as scheduled. Dress professionally. Arrange for child care if needed.

Most likely the county will deny your Request to Disqualify. (And that’s OK.) If so, you will need to decide whether to participate in the hearing, based on the following factors:

  • Your Board appeal will likely be denied if you don’t participate in the hearing. The County could argue that your failure to participate waived any right to a later appeal in Superior Court.
  • Your Board appeal will likely be denied even if you do participate in the hearing. If you file a later appeal in Superior Court, the County could argue that you waived any claim of bias by participating in the hearing.
  • There are potential legal consequences for both of the choices above. If you’re facing tens of thousands of dollars in fines, like most appellants, it is strongly recommended that you contact an attorney at least one week before your scheduled hearing.

The hearing itself will resemble a mini-trial. Sheriff’s deputies will sit at a table before the Board of Supervisors and briefly recount the details in the staff report. The deputies who did the actual enforcement on your property may not be there to answer questions. After the staff report, it’s your turn to stand up at the podium and present your defense, including any photos, parcel maps or other documents you want to use as evidence.

After you finish, board members may ask you some very pointed questions, but you are not required to answer them. They also may ask questions of sheriff’s deputies or the county counsel, who provides legal advice to the supervisors. After that question-and-answer period, you may be offered an opportunity to provide a final “rebuttal” or “closing” statement where you can summarize why your appeal should be granted.

After your closing statement, you may sit down in the audience again as supervisors discuss the issues. Your appeal hearing concludes with a roll-call vote of supervisors to grant or deny the appeal. This vote and the amount of penalties imposed against you will be formalized in a resolution at a future meeting of the Board of Supervisors.

Prop. 215 grower: Don’t forget you’re charged with violating a county ban on growing plants. This is substantially different from state criminal charges. Saying you have a doctor’s recommendation or have medical need for the cannabis you were growing is not a defense to the county ordinance. Saying you can’t afford to pay the fine is not a defense, either, but if you’re on a limited income or simply feel the fine is excessive, it’s a good idea to state that for the record. Review the audio of previous hearings under Cannabis Fine Appeals for several examples of losing defense claims.

On the plus side, chances are good that Fresno County deputies violated your due-process rights when enforcing the ordinance. They likely failed to give you advance notice to abate the plants. They may have failed to obtain an inspection warrant before coming onto your property. They probably issued a fine citation without notice. Now the same Board of Supervisors that told the sheriff and her deputies to do those things is sitting as a hearing body for your appeal, which probably violates your rights to procedural due process. (Some of these same arguments appear in the Request to Disqualify.) Your best defense may be to attack the county’s flawed enforcement.

If you previously filed a Request to Disqualify, you should still appear at your appeal hearing. You may want to limit your oral testimony, however. State that you cannot obtain a fair hearing from the Board of Supervisors, and that you will not continue to participate in the hearing. Alternatively, you can state for the record that the hearing is biased and continue to participate “under protest.”

If you bring a translator, give him or her strict instructions before the hearing. Do not let him engage in direct dialogue with board members or other county representatives. Ask him to translate the questions and allow you time to formulate a response. Many of the board’s questions are intended to damage your credibility, or to trick you into making admissions harmful to your case. (This is similar to cross-examination in criminal trials.) It’s OK to refuse to answer the Board’s questions, and in most cases it’s the right choice.

Before the appeal hearing, write down your defense claims on a sheet of paper or note cards. This can help you stay on track during the hearing. You can also write down questions that you know you should not answer, including whether you sold marijuana to other people. Those questions are not relevant to the county ordinance, and answering them could violate your Fifth Amendment right to avoid self-incrimination.

Non-resident property owner: Your chances are slightly better than those charged with growing plants … but not by much. Review the audio of previous hearings under Cannabis Fine Appeals for several examples of property owners who were fined. Consider filing a Request to Disqualify board members from proceeding with your appeal hearing and/or consider hiring an attorney. Property owners who are represented by counsel have the best chance of success.

At the hearing, present any evidence you have regarding your property. Claiming you didn’t know the plants were being grown there is not always a successful defense, but in past cases it has helped to convince board members to reduce the amount of the fine. Review the definition of “responsible party” very closely, then explain to the board why you did not “cause or contribute to” the violation because you took no direct action to grow the plants. If the board seems intent on cross-examining you or questioning your credibility, you are not required to answer.

The better defense may be to raise the lack of due process that was afforded you by Fresno County. Even if you were the most diligent property owner on the planet, you should get advance notice to abate the plants before the county can take further enforcement action. Deputies should get a property inspection warrant before coming onto your property, unless you granted them access, and you should have been contacted before the warrant was served. You and your tenants should not be issued a fine citation without notice. You should not have to waive your respective rights to due process by appearing before a biased appeals board.

If you previously filed a Request to Disqualify, you should still appear at your appeal hearing. You may want to limit your oral testimony, however. State that you cannot obtain a fair hearing from the Board of Supervisors, and that you will not continue to participate in the hearing. Alternatively, you can state that the hearing is biased and that you will participate “under protest.” Always keep in mind that you may want to appeal the board’s decision to Superior Court, so keep your testimony brief and focused. Say only those things that help your case, and none that will hurt it.

I lost my appeal … now what?

Don’t get discouraged. Most people lose their appeals before the Board of Supervisors. The good news is that the board’s decision can be appealed to Fresno County Superior Court, and several people have succeeded in having their fines overturned.

The bad news is that the county may not tell you about the short deadline to do this, which is generally 20 days from the date of your appeal hearing. The other bad news is that it requires an attorney in most cases to file and argue a winning court appeal. While this represents a financial burden, it’s still much cheaper than being forced to pay an excessive fine in the tens or hundreds of thousands of dollars.

Consult the Fresno cannabis attorneys page for a list of lawyers who can help you. Attorney Brenda A. Linder has handled most of the successful civil fine appeals so far. If you’re facing criminal charges, too, you may want to consult a criminal defense attorney. Please be aware that most lawyers cannot afford to work for free, and they are not obligated to help you if you can’t afford to pay their reasonable fees for services.

In other words, the very best way to avoid county fines, for now, is to stop growing medical marijuana before you get cited. In Fresno County, an ounce of prevention is worth way more than a pound of weed or county fines of $1,000 per plant. Grow safe. Grow smart.

 Posted by at 1:14 pm