For the second time in less than a week, a judge has issued a restraining order to prevent Tulare County officials from pulling medical marijuana plants from a farm just north of Visalia.
Wednesday's order by Tulare County Superior Court Judge Paul Vortmann will remain in effect at least until Oct. 6, when another hearing on the case is scheduled.
His ruling came in response to an application for a restraining order filed by Richard Daleman, who runs a business leasing small plots to about 40 clients to grow medical-marijuana plants.
All have doctors' recommendations to grow and smoke or ingest the drug.
The county Resource Management Agency issued Daleman and his landlord cease-and-desist orders to stop growing and clear the marijuana from the site because the farm violates the county's medical-marijuana ordinance, with requirements that include the plants have to be grown on commercially zoned land in the unincorporated county.
Saturday was the deadline, but a day earlier, Judge Melinda Reed issued a temporary restraining order against the county until Vortmann — who wasn't in court Friday — could make a ruling.
In the meantime, the Tulare County counsel filed a response to Daleman's application and asked Vortmann to issue a preliminary injunction ordering Daleman to stop allowing the marijuana grow sites on his land and pay the county's legal costs.
Daleman's lawyer, John Ryan, said in court Wednesday that the county should have notified each of Daleman's clients about the cease-and-desist order so they could challenge it.
"There are property rights here," Ryan told the court, adding that growers have considerable time and money invested in their plants and don't have affordable alternatives to get the medical marijuana they need if forced to pull out their plants.
One of those clients is Deborah Martinez of Ivanhoe, who Wednesday was granted her motion to be a plaintiff with Daleman.
"I don't want them to pull my plants," said the woman, adding that she uses marijuana to treat pain from arthritis and fibromyalgia.
Daleman has challenged the legality of the county ordinance, saying it violates California's Compassionate Use Act, which voters in the state passed in 1996 to allow the legal use of medicinal marijuana.
Ryan argued that the county ordinance's provisions -including that medical-marijuana plants have to be grown indoors and require specific security measures -inflate the cost of growing the plants to discourage people from growing and using the plants.
He accused the county of targeting Daleman for winning a criminal case involving his growing medical marijuana and getting a court order for the county Sheriff's Department to return the marijuana confiscated from him.
Attempts by Deputy County Counsel Julia Langley to argue against the claims of the county's motives quickly were stopped by Vortmann, who said he saw no merit in them.
She argued that several court cases in the state have concluded that counties can regulate medical marijuana and Daleman's application didn't cite any evidence that enforcing the county order would irreparably harm his clients.
"What we have here is a controlled substance, the cultivation of which results in quite a bit of crime," Langley said. "People are being killed in home-invasion robberies. People are being killed around the cultivation of this substance."
She also noted that Daleman's business of renting space to grow medical marijuana actually is a violation of state law prohibiting the cultivation or distribution of the plants for profit.
Both Daleman and William McPike -an Auberry attorney specializing in medical-marijuana cases who said he has joined the case to assist Daleman — asked to speak, but Vortmann said only Ryan could speak for the plaintiff's side so they couldn't "gang up" on Langley.
Vortmann expressed concern about Daleman's clients not having access to their medicine.
"The court recognizes there is irreparable harm if I don't grant this restraining order," he said, adding that he also recognizes the farm operation clearly violates the county ordinance.
Daleman not only wants to challenge the legality of the ordinance in court but have the court prohibit the county from enforcing it until the matter is decided.
Vortmann told Langley that he was "frustrated" with the time and attention the county has put into enforcing its medical-marijuana ordinance when some other zoning violations — including swap meets operating without proper licensing and cars sitting in front yards — have gone on for years before action was taken.
"I don't see the motivation to jump in on these kind of cases," he said. "I really question [that] the attitude of law enforcement is not consistent with the wish of the people."
In the end, he scheduled another hearing in just over three weeks to give Daleman and his lawyers time to respond to the county counsel's request for a preliminary injunction against the growing operation before making a ruling.
News Hawk- Jacob Ebel 420 MAGAZINE
Author: David Castellon
Contact: Contact Us
Website: Judge bars Tulare County from pulling pot