Bound for battle

Rafael Lozano is choosing to fight.

Lozano, a disabled former delivery driver, was recently ordered to pay $13,000 in abatement costs and penalties in connection with a marijuana grow on his rural Berry Creek property. Following a complaint, an aerial inspection last summer revealed 12 marijuana plants on the land, and Lozano was dinged for several violations of Butte County’s marijuana cultivation ordinance at a subsequent administrative hearing.

Lozano isn’t challenging the violations. At issue, he told the CN&R, are the penalties, which account for $8,500—$500 for the first 15 days out of compliance, plus $1,000 for the last day—of the $13,000 the county has demanded. If he doesn’t pay, the county warned him in a Dec. 19 letter, the total amount will be folded into a lien and special assessment against his property.

It’s a practice the county has pursued against dozens of property owners since at least 2016—when the Board of Supervisors instituted new rules to deter illegal marijuana cultivation—and which Lozano calls an “affront to my liberty.” Working with local civil attorney Shannon Thompson, Lozano is questioning the legality of collecting nuisance abatement penalties through liens.

There are recent examples, Thompson says, that may bolster the case against such a practice and could have wide-ranging implications for both the county and property owners who in some cases have been penalized upward of $70,000.

“I’m a civil lawyer,” Thompson told the CN&R. “I see a [civil rights] action and I go, You can’t cloud title to all these properties. That’s a lot of money. I could start a class action. We could all go in and then we get to be the bullies.”

From 2016 through 2018, the county—via approval by the Board of Supervisors—placed liens against 79 properties totaling more than $3.3 million in penalties, according to county data. In 2019, such liens were placed against approximately 25 properties, totaling roughly $1.4 million in penalties. The data suggest payment on the liens has been slow.

In some cases, property owners have lamented the penalties as unfair. During a lien hearing before the supervisors last April, one family said it had been renting a property to tenants who ran afoul of the county’s marijuana restrictions. The family pursued eviction proceedings but still faced more than $30,000 in penalties, plus about $4,700 in associated abatement costs (see “Hefty price,” Newslines, April 25, 2019). The supervisors voted 3-2 to levy the full lien, with Supervisors Debra Lucero and Tami Ritter dissenting.

During that meeting Supervisor Bill Connelly, whose district includes Oroville and the surrounding foothills, said the penalties had been working as a tool for compliance. He said he has fielded fewer marijuana-related complaints since the county began enforcing the rules.

Thompson, the civil attorney working with Lozano, told the CN&R that the lien process is unfair, and also may be illegal. Lozano said he does not intend pay the county’s $13,000 demand for his marijuana violations, possibly setting in motion a future hearing in which the Board of Supervisors will consider placing a lien against his Berry Creek property. Such a move would devalue his property.

Should that happen, Thompson said, Lozano intends to file a legal challenge. To support her cause, she notes a 2016 decision by the 9th U.S. Circuit Court of Appeals. In the case—Mechammil v. City of San Jacinto—a panel of judges found that the city’s rules related to liens based on penalties for ordinance violations were “inconsistent with California state law.”

“We hold that cities in California cannot attach liens or impose special assessments to collect outstanding nuisance fines or penalties,” the panel decided, noting that state law expressly allows local agencies to collect outstanding costs—not penalties—of abatement through a property lien.

That opinion, Thompson conceded, is “unpublished,” which means it is not considered precedent. Nevertheless, she said she could follow the court’s reasoning in bringing an action in Lozano’s case. She further noted that in 2018, legal counsel for Sonoma County cited the Mechammil case as justification to rescind the auction sale of a property that the city of Santa Rosa had placed nuisance abatement penalties against.

Bruce Alpert, county counsel for Butte County, told the CN&R that the Mechammil case cited by Thompson “was unpublished and therefore does not have any legal effect.” Alpert further noted that the applicable state laws “have also been amended to make clear that administrative fines and penalties can be imposed for violation of an ordinance.”

Thompson said she believes the nature of marijuana nuisance abatement cases means fewer people will try to challenge the county’s rules.

“I think that the county is being a bully towards a group of people and that they are doing things they know they shouldn’t be doing because they know the people aren’t going to fight,” she said. She added: “For attorneys, this isn’t tough stuff. … These [state statutes] are really clearly written. If you read the government code, it’s real clear what they can get on a lien—it says administrative costs and abatement costs. It does not say fines and penalties.”