JUDGE RULES IVANHOE-AREA MARIJUANA CO-OP MUST SHUT DOWN

A judge has sided with Tulare County officials and ordered a medical
marijuana cooperative to shut down its dispensary south of Ivanhoe.

Tulare County Superior Court Judge Paul Vortmann signed the permanent
injunction Tuesday against Foothill Growers Association Inc., a
cooperative of about 100 people with doctors' recommendations to smoke
or ingest marijuana to treat symptoms of health problems.

The county filed for the civil injunction last year, saying the area
Foothill Growers leased to operate its dispensary is zoned AE-20 --
for agricultural use with a minimum 20 acres -- and a medical
marijuana ordinance the county Board of Supervisors adopted in 2009
states that marijuana grow sites and dispensaries must be on
commercially-zoned land in the unincorporated county.

It also states that grow sites have to be in enclosed buildings, not
on open ground.

The defense argued that the building Foothill Growers is using has
housed commercial businesses in the past -- a dentist's office and a
trucking company -- and the county hadn't attempted to enforce the
zoning rules, so the site should be grandfathered in as a commercial
site.

"Although [the county] has not sought enforcement until now, defendant
provides no authority to suggest that plaintiff cannot now seek
injunctive relief to enforce its zoning ordinance," Vortmann stated in
a tentative ruling he issued Monday, a day before the formal ruling.

Hanford attorney Bill Romaine represents Foothill Growers and Jeffrey
Nunes Jr., who runs the cooperative and was named a plaintiff in the
lawsuit.

Romaine has challenged the county portraying the one-story building on
the property as a "dispensary," explaining it is just a place for
members to meet and pick up their allotment of the harvested marijuana.

In an interview last year, Romaine said growing medical marijuana is
an agricultural practice and should be permitted on the AE-20 land.
"This is not a business. This is an agriculture cooperative."

County Counsel Kathleen Bales-Lange said the county hadn't challenged
in its lawsuit the issue of the cooperative growing marijuana on the
land, but the defense did bring that issue up to the judge in an
effort to support its argument.

Vortmann addressed that in his tentative ruling, saying, "In this
state, marijuana has never been classified as a crop or horticultural
product. It has been and remains a controlled substance."

Bales-Lange informed the county supervisors of the ruling Tuesday at
the end of their weekly meeting. She told them that as far as she
knew, it was the first court ruling on medical marijuana in California
to state the plants aren't agricultural crops.

"It upholds your board's zoning ordinance," she said, adding at the
end of her comments, "Thank you for allowing me to do a little bit of
bragging."

The Tulare County District Attorney's Office has said it wouldn't seek
to criminally prosecute people accused of violating the county
ordinance, claiming it violates the state's medical marijuana laws.

County officials still can take civil action to seek cease-and-desist
orders on activities that violate the ordinance, as they did with
Foothill Growers.

"What the court did was uphold the county ordinance," Supervisor Steve
Worthley said after the meeting.

He also noted that the if the city has to take action to abate the
activities, the county can charge its cost to the land owner or impose
tax liens on the properties.

The property owner would be responsible for those costs, Worthley
said, so it's important that owners understand what is being done on
the land they lease and the financial risks to them if those
activities violate county ordinances.

Vortmann's ruling gives Foothill Growers until noon Friday to cease
all activities that violate the county ordinance.

If the group doesn't meet the deadline, the county could take
abatement action. Whether that would involve confiscating marijuana in
the building or being grown on the property isn't clear.

County Sheriff's deputies usually confiscate and destroy marijuana
plants when possible criminal activity is discovered, but Bales-Lange
said she would consult with the county Agricultural Commissioner about
what to do if plants need to be confiscated.

The matter could become moot if the defense appeals Vortmann's ruling
and seeks a stay on the county taking action until that matter is
decided. Foothill Growers has not said it is considering such an action.

In the meantime, Bales-Lange told the supervisors that in light of
Vortmann's ruling, she planned to prepare requests to seek similar
injunctions against other, unspecified medical marijuana growers
suspected of violating the county ordinance.