County Counsel Defends Legality of $10,000-a-Day Abatement Fines
In an ongoing series of interviews aimed at gaining an understanding of the unpermitted commercial cannabis cultivation abatement program, Humboldt County’s County Counsel Jeff Blanck responded to questions raised by a community conversation with attorney Patrik Griego.
Griego spoke with community members on August 3 about the Notices to Abate a Nuisance that Humboldt County Building and Planning’s Code Enforcement Unit have been sending to rural residents supected of unpermitted commercial cannabis cultivation. He said Humboldt County probably lacks the necessary authority to set its abatement fines over $1000 per day. And that evening some Community members present alleged they had felt intimidated not to enter complaince agreements, and that charges that had been remediated, or had been untrue, could not be eliminated from the costly compliance agreements.
In a phone interview afterward, County Counsel, Jeff Blanck gave more information on the County’s reasoning and denied the need to threaten anyone.
When a landowner receives a Notice to Abate a Nuisance, each nuisance listed on the notice carries an independient fine. Unpermitted cannabis cultivation carries a fine of $10,000 a day as does unpermitted grading and unpermitted structures. Ergo, if a landowner received a notice to abate grading, cannabis cultivation and greenhouses, the fine beginning after the tenth day would be $30,000 a day. At the end of thirty days, a property owner would owe .9 million dollars.
Humboldt County’s County Counsel, Jeff Blanck explained the authority and justification of $10,000 a day fines,
The Board [of Supervisors] was looking at ‘the fines need to be a deterent.’ With the cannabis industry, if you fine someone a hundred dollars a day, that’ll just be the cost of doing business. It won’t do anything. So, that’s where it went up to the $10,000 a day.
Referencing government code. §36901, entitled Fines; Imprisonment; Penalties; and Forfeitures, which reads,
The city legislative body may impose fines, penalties, and forfeitures for violations of ordinances. It may fix the penalty by fine or imprisonment, or both. A fine shall not exceed one thousand dollars ($1,000). Imprisonment shall not exceed six months,
The authority is kind of in the negative. There’s a statute that limits the fines for cities to $1,000 but not counties. We looked at that and said that if it doesn’t apply to counties, then that expressly means that counties can have a higher fine because the statute didn’t include counties or all legislative bodies.
Blanck said this means, “[T]here is no restriction on the fines that can be set by the counties. There are restrictions on cities.”
However, in an email received after KMUD News aired the interview with Mr. Blanck, Patrik Griego cited California Appellate case People v. Minor 96 Cal. App. 4th 29, Government Code Section 25132 and Penal Code Section 19. Griego writes, the court reasoned,
These statutes do the following: First, they create a default classification of misdemeanors for code violations; second, they authorize counties to classify the violations as infractions if they choose to do so; and, finally, they set the respective punishments for both infraction and misdemeanor code violations..
The court continued, stating
We must conclude that counties – unlike cities – do not presently have the power to ‘fix’ fines, penalties and forfeitures for criminal violation of their ordinances, but are relegated to the fines and penalties set by general statutes, except where the Legislature has expressly bestowed on the counties the power to impose additional penalties.
The amount of the abatement fines will be a matter for the courts to decide as landowners move to argue the fines that have been set to compel landowners to cease and desist commercial cannabis cultivation in the absence of a permit.
85% of the Notices to Abate a Nuisance list three or more violations, generally these are unpermitted commercial cultivation, unpermitted structures, and unpermitted grading. Compliance agreements give landowners more time to abate the nuisances listed. To enter into a compliance agreement, a landowner must agree to pay the first day’s fine on the nuisance or nuisances listed in the agreement. In this abatement program, one nuisance in the Compliance Agreement would cost $10,000 to enter, where three nuisances would raise the price to $30,000.
When Griego spoke on August 3rd, allegations arose that landowners are frequently able to resolve two out of the three listed problems before the end of the ten day period, but that the planning department was crafting the Compliance Agreements with all the original nuisances included.
In the phone interview, Blanck responded,
If there were three things that needed abatement and they did two within ten days, a lot of these compliance agreements give them months to comply… some of them might even be a year.
When asked to clarify what would happen if the landowner “got rid of two” nuisances within the ten day period before entering a compliance agreement, Blanck responded,
What you just said is ‘they got rid of two,’ so they had [the nuicanses.] So they were in violation….There’s a penalty for violations. If you don’t want to be subjected to $10,000, then don’t do a violation.
When asked if he was saying that the fines applied to violations that were corrected before the end of ten days after notice was served, Blanck replied: “I’d have to talk with Planning to be sure, but I’m pretty sure that if there were three violations, that’s $30,000, I think the two would go away and there’d be the one that wasn’t done.”
When asked to confirm, as County Counsel, what the law supports, Blanck said,
Compliance agreements are site specific and case by case, but generically, if you got this notice…if it says ‘if you abate in ten days, you won’t be fined,’ great, the things you abate, you won’t be fined on, the things you don’t [finish] you will be [fined on.]
Feelings of Intimidation
Next, Blanck responded to assertions in which people have said they’ve felt threatened with further enforcement action if they chose not to enter a compliance agreement. Blanck said,
We’re not doing that. There’s no need for us to, if they don’t want to sign a Compliance Agreement, the fines just run. They can run for 90 days and then we can file an action to start the process to collect the money and potentially get the property. So there’s no reason to threaten anyone.
Blanck talked about those who fail to act when they receive an abatement notice,
With the potential of the fines accumulating at that rate, it could mean they could lose their property, [so] you are going to get somebody to take action.
If it was nothing, it could be written off as the cost of doing business, and it wasn’t going to do any good at all.
And this is assuming the land owner even responds because there’s going to be…some that don’t even respond at all.
Blanck, describing the due process the county must undergo before taking a property, said, “Due process is significant before you can actually take properties. The county cannot do that at an administrative level.”
A community meeting has been arranged by the Civil Liberties Monitoring Project for Thursday the 23rd of august. Supervisor Fennell, Director Ford and representatives from Department of Fish and Wildlife and the Waterboards are scheduled to be included.