Best Best & Krieger, Jeffrey V. Dunn, Seena Samimi, Victor M. Ponto and Marc Tran for Defendants and Appellants. Joseph D. Elford and Brenda A. Linder for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CECG02103)
APPEAL from a judgment of the Superior Court of Fresno County. Dale L. Ikeda, Judge. Best Best & Krieger, Jeffrey V. Dunn, Seena Samimi, Victor M. Ponto and Marc Tran for Defendants and Appellants. Joseph D. Elford and Brenda A. Linder for Plaintiff and Respondent.
Appellant, the County of Fresno (County), adopted an ordinance banning the cultivation of medical marijuana as a public nuisance. Pursuant to this ordinance, the County has the authority to impose administrative fines for violations.
The County discovered that respondent, Xiongh Thao, had 99 marijuana plants growing on his property. The Fresno County Deputy Sheriffs who visited the property advised Thao that the ordinance banned cultivation of the plants. Thao immediately removed the plants. Three days later, the County presented Thao with a notice giving him the choice to abate the public nuisance by removing all the plants within 15 days. Thereafter, the County imposed a $99,000 administrative penalty on Thao.
Thao appealed the administrative fine to the superior court. The trial court concluded the County had no legal authority to impose an administrative penalty on Thao because Thao removed the marijuana plants before the County issued the 15-day notice to abate and before the abatement period expired.
The County contends the trial court erred. According to the County, it intended its marijuana cultivation ordinance to punish violations and, under the clear language of the ordinance, it can impose administrative fines without providing notice and a reasonable opportunity to abate.
The trial court correctly reversed the administrative penalty. Accordingly, we affirm the judgment.
The relevant facts of this case are stipulated to and therefore undisputed.
On January 7, 2014, the Fresno County Board of Supervisors (Board) adopted Fresno County Ordinance No. 14-001, Fresno County Ordinance Code Title 10, Chapter 10.60 et seq. (Ordinance). The Ordinance prohibits the cultivation of medical marijuana in all zone districts in the unincorporated areas of the County.
Thao owns and/or controls property located in an unincorporated area of the County. On March 3, 2014, several sheriff's deputies arrived at Thao's property and observed 99 marijuana plants growing there. Thao met the deputies and provided a marijuana recommendation. The deputies advised Thao that they were doing a marijuana compliance check and that it was illegal for anyone to grow or cultivate marijuana in the County as of February 7, 2014. The deputies then left the property and Thao immediately removed and destroyed the plants.
The deputies returned to Thao's property on March 6, 2014, and determined that no marijuana plants were there. A deputy then served Thao with a "FIFTEEN (15) DAY NOTICE AND ORDER TO ABATE AND NOTICE OF HEARING ON A REQUEST FOR A DETERMINATION OF A PUBLIC [NUISANCE] AND ABATEMENT ORDER AND A PETITION TO IMPOSE ADMINISTRATIVE PENALTIES INVOLVING THE CULTIVATION OF MEDICAL MARIJUANA" dated March 5, 2014.
The notice and order to abate states, in part:
"YOU ARE HEREBY NOTIFIED that you have the choice to abate the public nuisance by removal of all plants from the property within [fifteen] (15) calendar days from the date of this notice. Should you fail to abate the nuisance, a hearing before the Fresno County Board of Supervisors will be conducted to consider imposing administrative penalties and ordering such abatement of the public nuisance...."
On April 19, 2014, the County issued an administrative citation imposing a $99,000 fine on Thao. On July 15, 2014, the Board heard Thao's appeal and voted to uphold the $99,000 fine plus interest at 10 percent per month.
Thao appealed the imposition of the administrative fine to the trial court pursuant to Government Code section 53069.4. The trial court bifurcated the case and first considered the limited issue of "[w]hether removal of the marijuana plants by [Thao] between March 3, and 6, 2014, prior to the service of the 'Fifteen (15) Day Notice and Order to Abate ...' constitutes abatement of the nuisance precluding imposition of administrative fines or penalties." The trial court ruled in Thao's favor finding that the Board had no legal authority to impose the administrative penalty.
The County contends that, because it has made a determination that the cultivation of marijuana is harmful to the welfare of the community and its residents, an administrative penalty is permissible regardless of abatement. According to the County, the primary intent of chapter 10.64 of the Ordinance is to punish anyone found to be cultivating marijuana, whether or not that person removes the marijuana plants before being served with an administrative citation. 1. Standard of review.
The parties stipulated to the relevant facts in this case. Because the facts are not in dispute, our review is de novo. (Topanga and Victory Partners v. Toghia (2002) 103 Cal.App.4th 775, 779-780.) To the extent the County's decision rests on its interpretation or application of the Ordinance, a question of law is presented for our independent review. (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 219.) "The interpretation of statutes and ordinances 'is ultimately a judicial function.'" (Ibid.) Nevertheless, we must give appropriate deference to the County's interpretation of the Ordinance based on the County's special familiarity with the issues. (Ibid.) 2. Burden of proof.
The County contends the trial court incorrectly placed the burden of demonstrating the validity of the administrative fine on the County. The County is incorrect.
The trial court concluded the County had the burden to demonstrate that Thao violated the Ordinance under Evidence Code section 520. The court noted that the County conceded this point in its supplemental brief. The court further found that, under Government Code section 53069.4, subdivision (b)(1), the facts set forth in the 15-day notice to abate provided prima facie evidence of the Ordinance violation. Thus, the burden shifted to Thao to refute those facts. However, because the parties stipulated to the operative facts, the burden of proof is largely irrelevant. Rather, the case turns on our interpretation of the Ordinance and relevant statutes. 3. The County was required to give Thao a reasonable time to abate the nuisance before imposing the administrative fine.
a. Government Code section 53069.4.
Government Code section 53069.4, subdivision (a)(1), provides that a local agency "may by ordinance make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty. The local agency shall set forth by ordinance the administrative procedures that shall govern the imposition, enforcement, collection, and administrative review by the local agency of those administrative fines or penalties."
Thus, the County had the power to impose penalties for violations of the Ordinance. Nevertheless, the procedure for imposing such penalties cannot conflict with general laws. "'"Local legislation in conflict with general law is void."'" (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 747 (Morehart).) Thus, the Ordinance cannot contradict state law. (Ibid.)
Government Code section 53069.4, subdivision (a)(2), requires the local agency to give a person responsible for a continuing violation of an ordinance a reasonable period of time to correct or remedy the violation before imposing administrative fines or penalties. This requirement applies "when the violation pertains to building, plumbing, electrical, or other similar structural or zoning issues, that do not create an immediate danger to health or safety." Thus, under this section, the County was required to give Thao a reasonable time to abate the nuisance before imposing the fine.
The County argues Government Code section 53069.4, subdivision (a)(2), does not apply because not all the elements of this subdivision were met. According to the County, the existence of Thao's plants was not a continuing violation of the Ordinance, Thao's cultivation was not a building, plumbing, electrical, or other similar structural or zoning issue, and the plants posed an immediate danger to health or safety.
i. The violation was continuing.
The Ordinance declares marijuana cultivation to be a public nuisance. (Fresno County Ordinance Code (FCC), Chapter 10.60.070.) A nuisance is either continuing or permanent. If a nuisance is abatable at a reasonable cost, it is a continuing nuisance. (Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1096.) Here, Thao immediately pulled out his plants and abated the nuisance. Thus, Thao's violation of the Ordinance was continuing.
Moreover, the cultivation of marijuana is a process that inherently occurs over a number of days. Accordingly, it is a "continuing" nuisance and violation.
Finally, the Ordinance's administrative penalty provision supports finding a continuing violation. FCC Chapter 10.64.040 provides that the penalty for each and every medical marijuana plant cultivated in violation of the Ordinance shall be "(1) One Thousand Dollars ($1,000) per plant; plus (2) One Hundred Dollars ($100) per plan[t] per day the plant remains unabated past the abatement deadline set forth in the administrative citation." Thus, the violation continues until abated.
ii. Cultivation of marijuana is a zoning issue.
The County contends its marijuana cultivation ban is not a zoning violation because the County did not enact it within its zoning code. Rather, the County points out, FCC section 10.60.060 prohibits medical marijuana cultivation "in all zone districts in the County."
"The purpose of a zoning law is to regulate the use of land." (Morehart, supra, 7 Cal.4th at p. 750.) As we held in Kirby v. County of Fresno (2015) 242 Cal.App.4th 940, the County adopted its marijuana cultivation ban under its authority to regulate land use through zoning ordinances. (Id. at pp. 969-970.) Thus, contrary to the County's position, the Ordinance pertains to a zoning issue, whether or not it is part of the zoning code.
iii. The violation did not create an immediate danger to health or safety.
As noted above, Government Code section 53069.4, subdivision (a)(2), requires the County to provide a reasonable time to abate the nuisance before imposing an administrative fine when the violation does not create "an immediate danger to health or safety." The County argues that, because it found at the hearing on the order for the administrative penalty that "cultivating 99 marijuana plants on the Property constituted an immediate threat to public health and safety," it was not required to provide a reasonable time to abate the nuisance. However, in this case, the County cannot cause the cultivation of 99 marijuana plants to become an immediate threat by merely declaring it so. (Cf. Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 717-718.) More importantly, the County's own actions belie its claim.
After discovering Thao had 99 marijuana plants growing on his property, the sheriff's deputies left and did not return for three days. When they did return, the sheriff's deputies provided Thao with a 15-day notice to abate. This apparent lack of urgency is inconsistent with an immediate threat to public health and safety. If the deputies considered the threat immediate, they could have summarily abated the nuisance.
In sum, under Government Code section 53069.4, subdivision (a)(2), the County was required to give Thao a reasonable time to abate the nuisance before imposing the fine.
b. The terms of the Ordinance require notice and an opportunity to abate.
FCC Chapter 10.64 sets forth the procedures the County may use to impose an administrative fine on parties who violate the Ordinance. FCC section 10.64.050 specifies what must be included on the administrative citation form. One such requirement is "The number of days provided to correct the violation prior to the administrative penalty becoming effective."
Consistent with this section, the notice served on Thao stated that he had "the choice to abate the public nuisance by removal of all plants from the property within [fifteen] (15) calendar days" and that if he failed to abate the nuisance, a hearing would be conducted to consider imposing administrative penalties. Thao was further notified that, at the hearing, the Sheriff's Department would be recommending that the Board "direct you to abate the nuisances and impose administrative penalties in such an amount as they may determine appropriate for this violation and the lack of action taken to cure the violation." (Italics added.)
The County argues that the administrative fines are intended to punish violators whether or not the nuisance is abated within a reasonable time. According to the County, the $1,000 per plant penalty is determined on the date of the inspection and thus can be imposed regardless of when the nuisance is abated.
However, the County's position is inconsistent with the procedures the Ordinance requires before the County can impose an administrative fine. Further, the notice served on Thao clearly stated that he had 15 days to abate the nuisance before penalties would be imposed and that the penalties would be assessed only if Thao failed to take action to cure the violation. Finally, the County's interpretation of the Ordinance conflicts with Government Code section 53069.4, which, as discussed above, applies here. Accordingly, the trial court correctly reversed the administrative penalty.
The judgment is affirmed. Respondent is awarded his costs on appeal.
LEVY, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________