Attorney Patrik Griego Addresses Cannabis Abatement
Attorney Patrik Griego, a partner in the Janssen Malloy law firm located in Eureka, came to the KMUD studios Friday, August 3. KMUD listeners had been invited to bring their questions regarding the Humboldt County cannabis abatement efforts currently underway. To date, more than 300 Notices to Abate a Nuisance have been sent to Humboldt County landowners demanding the cleanup of properties associated with unpermitted commercial cannabis cultivation.
In our series of interviews on the Notices to Abate, first Humboldt County Building and Planning Director, John Ford explained the abatement effort seeks to diminish the environmental impact of the unpermitted cultivation and to inhibit unfair competition for those cultivators who have become legally permitted. More recently, Supervisor Estelle Fennell said it is the landowner’s burden to prove the greenhouse is either empty or has another crop in it. Fennell also strongly encouraged people to abate and to sign a Compliance Agreement if they needed time to abate a grading nuisance.
In his hour of remarks Friday, Griego addressed a number of issues including the amount of the fines, the apparent arbitrary manner in which code enforcement is responding to his clients, and the concept that the county can allege a violation without significant evidence.
Griego talked about his concern as he councils clients because this matter does not have a local litigation history to rely upon so he is challenged in advising his clients because each landowner who receives an abatement letter faces substantial financial risk.
Griego says he has practiced law with Janssen Malloy in Eureka since 2004. Griego said, “We had not seen any abatement cases until a month or two ago in all my years of practice. It’s a very new thing for us.”
Nonetheless, Griego said he is advising his clients with abatement notices to both appeal and to abate everything possible within the ten-day timeline. Griego explained,
The very first thing I say is to get the appeal in within 10 days because if you don’t get your appeal in within ten days, the county is not allowing for any excuses right now. [Without the appeal filed,] we can’t challenge the fine amount; we can’t challenge who’s responsible for the alleged nuisance.
[S]igning the appeal means the government can’t come in and abate it for you and charge you for that until the entire appeal process is over…[However,] it doesn’t necessarily foreclose them from collecting fines eventually.
And while every client has different circumstances, and each person who receives an abatement letter needs individualized legal counsel for their specific case, Griego generally advises his clients against signing a Compliance Agreement.
Once the Compliance Agreement is signed, the person who has signed it is obligated to fulfill its terms even if subsequent court action finds the county’s program has overreached in some way according to Defense Attorney Ed Denson who answered a few clarifying questions for this report.
Denson added, “Anyone who walks in there without legal advice and signs anything is making a big mistake. Why would you take your legal adversary’s word for it?”
However, Griego acknowledges,
There’s this idea of shock and awe. I can tell clients ‘this seems very egregious; I think we have some good defenses; I think the fine amounts are excessive; we may even challenge whether it’s a nuisance, I don’t think the notice is sufficient.’ We have lots of good defenses, but at the same time, the client faces, that if we are wrong, that at $10,000 a day for 90 days, there will be a $900,000 lien against their property. That’s a really risky decision to make. [The county] made the stakes so high that people are afraid to fight.
Griego said the worst thing a person can do is not respond. Griego feels everyone who makes an honest effort will eventually come to a satisfactory outcome.
“I think there is a very good argument that the maximum penalty that any county can ever impose for a nuisance abatement is $1000.“ Griego notes that counties do not have statutory authority to set fines as cities do. And he further adds that Humboldt County’s code says that violations of the commercial cannabis ordinance are criminal misdemeanors. California state law, according to Griego, puts the maximum fine for a misdemeanor at $1000 per violation.
Griego looked to other counties to see how their abatement programs work. He noted that in Napa County, the county will initiate an abatement when people operate a winery without permits. The first violation is $100 a day, the second is $200 a day, the third and any more are $500 a day each.
Griego said the amount of the fines is going to be challenged in the near term.
This idea that you can get up to a $900,000 fine within 90 days; that people … need to give [the county] $30,000 right away or actually lose their homestead is going to be challenged right away. I am hopeful the courts will determine these are excessive fines.
People’s means…are supposed to be taken into consideration by a hearing officer….I think the Board of Supervisors, judges, and hearing officers are not going to want, when it really comes down to it, to take these people’s properties. It sounds good in theory to have these threats that you might lose your home, but I think politically, they are not going to want to do that.
Another consideration besides financial means is the physical ability to comply with an abatement order. Griego said he has a client with a physical illness who is not currently able to get up and take down structures. Griego said, “We did go in [to the county] and argued ‘they physically could not do the things you have asked them to do.’ The county did eventually work with us.”
Burden of Proof
Regarding the idea that having a greenhouse on one’s property is sufficient evidence that a cannabis nuisance needs to be abated, Greigo said,
That makes no sense. If the county is going to go to a hearing and say that cultivation is occurring in a greenhouse, they have the burden of affirmatively proving that. They cannot simply say to a hearing officer, ‘Well, what else is growing in there? Of course it has to be [marijuana.]’ I think the hearing officer would laugh in their face.
Even if they were correct, which I don’t believe they are, the burden of proof would switch as soon as we have … a [client] say ‘there isn’t cannabis’ or if there was cannabis, ‘we removed it within the ten days you gave us to remove it.’
At that point, we would have met any possible burden of proof we have. At that point, it would go back to the county to somehow show that [not to be true]. ….The county has shown no interest in doing that. When we have had clients say there was no cannabis or that we removed it within ten days, they haven’t gone out …to check that so far.
Acting Reasonably Is Key
A woman who received an abatement letter said she asked the Code Enforcement officer “[H]ow would one even think it’s reasonable to have grading abated, or even looked at by an engineer, within ten days?” She reported she was encouraged to sign a compliance agreement to get the time she needed.
However, she said she filed an appeal because she does not want to pay a fine for cultivating cannabis when she did not do that this year. She continued,
When I was speaking to the Code Enforcement officer, he was really under the impression that regardless of whether I could prove myself innocent on the marijuana charge, that I would still be fined [for] that because they had put it forth. That is one of the things I feel is so outrageous.
Griego said he had heard that story from others. He said, “They are taking a very strange position on that.”
If it is just cannabis, without a grading [charge], then they’ve said, ‘ok, you’ve dealt with that in the ten days and it’s over.’ But they’ve actually said if it’s cannabis and grading, and you do the cannabis, which is all you can do in the ten days, it’s still $10,000 for the cannabis because even though you did it in ten days, because you also have the grading and you couldn’t do both and we are not going to eliminate one.’…and the county is actually saying now, ‘We won’t even go out to inspect whether you’ve done the cannabis or taken down the buildings until you provide us proof that you’ve remedied all the grading.’
I think the answer is going to be that if you’ve done what you can for the grading, if you’ve started the permit process, and you are reasonably trying to proceed with that then you would have a very good argument [in court] that you have, in essence, abated. You have done everything you can do.
Bonnie Blackberry is arranging a community meeting on August 23rd at the Mateel Community Center at 6 p.m. Supervisor Fennell and Planning and Building Director Ford are both scheduled to attend.