Oct 052011
 

Kern County Superior Court Judge David Lampe has refused to issue a preliminary injunction against an ordinance that limits the number of marijuana plants that can be grown on a single parcel of land to 12.

That’s a victory for Kern County in its ongoing battle with medical marijuana advocates, James Burger reports in the Bakersfield Californian.

But the judge’s ruling, on Monday, may have thrown a wrench into the sheriff department’s campaign to eradicate medical marijuana grown in violation of the 12-plant limit created by the county law passed on Aug. 9.

Chief Deputy Francis Moore said Tuesday that the sheriff is waiting for legal advice from the county counsel before using the 12-plant limit to justify seizure and eradication of marijuana plants.

Cultivation operations that clearly violate state law, Moore said, will still be raided and the plants destroyed.

At the same time, the ruling offered some positive news for county authorities.

Lampe wrote that medical marijuana growers and collectives represented by attorney Phil Ganong failed to prove that the county ordinance was invalid because it conflicted with state law.

Kern County maintains the right to enforce the ordinance while the case brought by Ganong proceeds.

But Lampe also raised the question of whether, as part of that enforcement, sheriff’s deputies can seize and destroy plants when raiding a marijuana grow that complies with state law.

“It is questionable, if not doubtful, that the county or its deputies may invoke (state law) to seize and destroy medical marijuana solely on a citation for violation of the medical marijuana ordinance,” Lampe noted.

Ganong said while he was disappointed with the decision not to issue the injunction he was heartened that Judge Lampe indicated that seizure without due process was inappropriate.

Lampe wrote that the county ordinance declares more than 12 plants on a parcel a public nuisance. Typically the county deals with nuisances by giving the owner of the property notice that they are in violation of the law and allowing them time to get rid of the problem before doing the work themselves.

Chief Deputy County Counsel Mark Nations said the addition of that language in the ruling has indicated, in mile-high neon letters, what a valid challenge to the county’s actions might be.

“He’s shown Mr. Ganong the way,” Nations said.

Nations said the court seems to have no problem with sheriff’s deputies serving warrants for violation of the ordinance.

But Lampe’s stance has apparently forced the county to think twice about what it does after it serves a search warrant.

“It’s really not clear where we go from there,” Moore said.

He said that is why the sheriff’s department has asked for advice from the county counsel.

  One Response to “Kern County judge backs county in first test of cultivation law”

  1. It seems strange that the sheriff’s office would be involved with enforcement of a civil nuisance ordinance. I’m sure they’d rather do it than code enforcement, but the law itself was written as a nuisance ordinance with criminal enforcement thrown in. Name any other nuisance condition in the county code that carries a six-month jail term and $1,000 fine for violators. It’s unclear whether an administrative appeal is even possible should the county take civil action instead against those who fail to comply.

    Also, while the judge didn’t mention it explicitly, the issue of private property rights may come up. They did when a Fresno County judge temporarily blocked enforcement of the county’s outdoor cultivation ban last year. http://calpotnews.com/judge-puts-fresno-county-outdoor-cultivation-ban-on-hold/

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