Defending Administrative Penalties for Marijuana Cultivation

Although Sacramento County allows for residential cultivation of marijuana, each residential unit is allowed to grow up to six marijuana plants legally. Exceeding the limit attracts an administrative fee of $500 per plant above the allowed six for landlords. Tenants can also be charged with a misdemeanor offense. Since a landlord may oversee multiple units, each fine can accumulate too fast. Therefore, it's in the landlord's best interests to defend against the administrative penalties for marijuana cultivation on their property. Landlord/Tenant laws are one of our specializations at Foos Gavin Law Firm, under which we help landlords and tenants defend themselves when charged with administrative or criminal violations in Sacramento.

Sacramento Laws on Indoor Marijuana Cultivation

Chapter 8.132.040 of the Sacramento City Code allows residents to cultivate six marijuana plants indoors. This statute allows the cultivation of marijuana for recreational and medicinal use.

The ordinance came into being following the passing of the Adult Use of Marijuana Act (Prop 64). Under prop 64, adults 21 or older can cultivate up to six marijuana plants indoors.

In Sacramento, those who grow cannabis indoors (8.132.040) must also adhere to these conditions:

• All cultivation of marijuana must be done indoors in a single room of an allowable structure
• The maximum number of marijuana plants allowed is six, regardless of the number of people in a private residence
• The equipment used for indoor marijuana cultivation must comply with city building and fire prevention codes
• The cannabis under cultivation should not be visible from outside a private residence
• Cannabis odor must be ventilated, treated, or filtered so that it is not detectable outside the residence by a reasonable person of normal sensitivity
• Cannabis cultivation should not create dust, noise, heat, or light that disturbs residents on adjacent or nearby residences
• The cultivation must adhere to applicable state and local laws

Chapter 8.132.030 prohibits a person from owning, occupying, leasing, or having charge of a property where they know (or should know by exercising reasonable care or diligence) that cannabis is being cultivated. This ordinance applies except if the cultivation is done in accordance to:

• Section 8.132.040, which allows indoor cultivation of up to six plants in residences
• Chapter 5.150, which allows businesses to cultivate and distribute cannabis as long as they have the relevant licensing and permits from state and local governments

Chapter 6.88.050 also provides additional restrictions for those who wish to grow marijuana. These restrictions include:

• The cultivation must occur within a single room in a private residence or a fully enclosed and secure structure inaccessible to minors and not in the public's view. The enclosed structure must be secured with a security device that prevents unauthorized entry.
• The maximum number of plants allowed is six, regardless of the number of occupants and the maturity levels of the plants.
• Growing should not be done outdoors or for commercial purposes
• Lighting used in growing the plants should not exceed 1000 watts per light
• Gas products such as ozone generators should not be used in the cultivation of marijuana
• The growing of cannabis should not interfere with the property's primary use as a residential area. Therefore, growing should not be done in any room that interferes with cooking, sleeping, or bathing.
• If you are not the owner of the residence, you must seek consent from the owner. This consent should be in the form of a written statement signed and notarized by the owner permitting the cultivation of cannabis.

Charges for Illegal Cultivation of Marijuana

Tenants who grow marijuana illegally could be charged with a crime in Sacramento. Landlords also can be hit with excessive fines due to their tenants’ illegal cultivation. In most cases, the Sacramento landlords are penalized with administrative fees for:

• Failing to adequately inspect their properties
• Getting involved in organized crime (for example, running their properties as illegal grow houses)
• Being negligent in mitigating criminal activity (illegal marijuana cultivation) in their properties

In most cases, high energy bills are the main tip-off for the city about the potential for illegal cultivation. Cultivation of cannabis is an energy-intensive process – contributing in part to the six-plant maximum and the requirements on the equipment that growers can use to cultivate these plants indoors.

Other activities that might result in an investigation for illegal cultivation of marijuana include:

• People using the property as a place to buy or sell marijuana
• Marijuana plants visible to other people outside the residence

Penalties for Illegal Cultivation of Marijuana in Sacramento

Since the implementation of the cannabis cultivation statute, many landlords in Sacramento have received hefty fines – often in the six-figure range when their tenants illegally grow marijuana. The city has imposed millions in fines against landlords whose tenants engaged in the illegal cultivation of cannabis.

These fines accumulate from:

• Investigative fees
• Fines of up to $1000 per day for every plant above the allowed six plants.
• Fines of up to $1000 per violation per day that the building violated fire safety and building codes during the illegal cultivation

In some cases, landlords have lost their properties due to these fines under California’s asset forfeiture laws. Other penalties include the declaration of your property as a public nuisance.

Defending Administrative Penalties for Illegal Marijuana Cultivation

Landlords in Sacramento are at the risk of excessive fines if their tenants grow marijuana illegally. While most landlords include a clause in the lease agreement prohibiting any cultivation of marijuana on the premises, some tenants still grow cannabis and often exceed the allowed limit of six plants.

As a landlord, however, you can take steps to prevent the illegal cultivation of marijuana or fight administrative penalties should your tenants grow cannabis. Here are some steps to prevent the illegal cultivation of marijuana on your property:

Here are some strategies to fight an administrative penalty for the illegal cultivation of marijuana:

     1. File an Administrative Appeal

Landlords in Sacramento can appeal the court’s decision to impose a fine for their tenants’ illegal marijuana cultivation. During the appeal process, you can choose to represent yourself or hire an attorney to appeal the administrative penalties on your behalf.

If you need legal representation, contact an attorney as early as possible so that they have sufficient time to prepare for the hearing.

The first step in filing an appeal is filing a “Notice of Appeal” within 20 days of receiving the administrative penalty order or 25 days if the order was delivered by mail. Failing to file the notice of appeal within the required timeline denies you the right to a hearing.

The notice of appeal contains information such as:

• Your name
• The number and amount of the administrative penalty
• The address of the property in question
• A brief statement on why you are appealing the administrative penalty
• A brief statement of the evidence to support your claim
• Your address (the address should be one you frequently use so that the court can reach you easily for further updates on dates of further proceedings)

You must also pay an appeal fee which ranges from $50 to $250 depending on the level of the violation.

The hearing officer will set a hearing date and notify you by mail. During the hearing, you will have the chance to present your defense. These hearings are usually informal, but you have the right to retain an attorney and deserve due process.

Here are the common defenses:

     a) You could Not Have Reasonably Known that a Tenant Was Cultivating Marijuana

In 2019 Sacramento passed a law requiring the city to prove that a landlord or property owner knew or should have reasonably known that their tenant was growing marijuana illegally. Landlords can know that their tenants are growing illegally through the legally required annual inspections of their properties.

During the annual inspection, the landlord should walk into the property alongside the tenant, checking that the house does not violate any codes and it is well maintained.

In some cases, for example, it might not be possible for the landlord to detect marijuana cultivation if the tenant began growing marijuana after the inspection. In this case, you can defend yourself by asserting that you could not have known that the tenant intended to begin growing marijuana at the time of the inspection.

     b) Excessive Fines

The Eighth Amendment of the US constitution prohibits excessive fines. That is, the fine should be equivalent to the offense and should not exceed the person’s ability to pay them without undue hardship.

This defense can be applied when challenging administrative fines, especially when these fines reach the six-figure range. Most landlords are often unaware of their tenants growing cannabis illegally. Therefore, they are less likely to stop the cultivation before the city catches up with their tenants.

The hearing officer will also consider evidence and testimony from the City representative, yourself, and other people that may be relevant based on the case.

The hearing officer will issue a decision 30 days after the hearing. This decision contains:

• A summary of the evidence presented
• Rulings on procedural matters
• Findings of fact

The hearing officer may uphold the administrative penalty, in which case you have up to 25 days from the hearing date to pay. Failing to pay the administrative penalty could result in the city placing a lien on your property. Alternatively, the hearing officer may rule to dismiss the administrative fee or lower the payable amount.

     2. File a Petition for Writ of Administrative Mandate

A Writ of Administrative Mandate is a petition requesting the Superior Court to review and reverse the order or decision of an administrative agency. The superior court will order the administrative agency to reduce or dismiss the administrative penalty if granted.

When petitioning the superior court through a writ, you cannot introduce new evidence in addition to what was presented at the administrative appeal. The court instead reviews the proceedings of the administrative hearings to determine whether the administrative agency adhered to the law, offered a fair trial, and made a decision supported by evidence and findings.

Where any of these is missing, the superior court may order the administrative agency to reduce or dismiss the penalty.

Note, a writ of administrative mandate is usually the last resort when you have exhausted other administrative appeal options.

     3. Request a De Novo Review in the Superior Court

A De Novo review is an appeal under Government Code section 53069.4, where the Superior Court decides on the appropriate administrative fee without deferring to the previous court's decision.

A De Novo review is essentially similar to a new trial. During the De Novo hearing, the Superior Court considers the aspects of the case afresh and determines whether a penalty is applicable for your case.

One advantage of pursuing a De Novo review is that section 53069.4 offers a level of protection for landlords if they can provide evidence that:

• The tenant was in possession of the property in which the violation occurred
• The tenant signed an agreement that prohibits cannabis cultivation on the property
• The landlord did not have notice of cultivation

How Landlords Can Prevent and Detect Illegal Cannabis Cultivation

Although tenants caught growing marijuana illegally are fined for their offense, the landlord often shoulders the bigger burden from the fines the city imposes on the illegal cultivation.

Once your property has been marked as an area where illegal cultivation occurs, you could easily lose your property and all your hard work. Fortunately, you can take steps to prevent illegal cultivation and detect it soon enough to stop it.

Here are signs your tenants may be growing marijuana on their premises:

     1. The Unmistakable Smell of Marijuana

Marijuana plants have a distinctive odor that has been described as "pungent," "Fruity," and "skunky ."Plants at all stages of maturity produce these odors due to the essential oils in cannabis. These smells have been described to be detectable from a mile away from a cannabis farm.

If your tenants are growing marijuana, they will likely seal their windows and rely on ventilation fans to keep the odors down or use carbon to mask the smell. Those growing marijuana illegally might also black out their windows to reduce visibility into the building. In most cases, the windows might have excessive condensation due to keeping their windows shut.

      2. Increased Electricity Consumption

Indoor cultivation of cannabis requires a heavy investment in electricity and water. It is usually the most noticeable factor that alerts the utility company that your tenants could be cultivating cannabis illegally.

Some tenants may mask their electricity consumption by tampering with the electricity meters. Some go to the extent of stealing electricity from other tenants to redistribute their consumption burden to other tenants.

If you notice increasing electricity bills or your tenants complain of the same, you should look into the matter as your tenants could be cultivating marijuana illegally. 

     3. Increased Security

Marijuana attracts all people – some who want to vandalize the growing plants and others who want to get a pot supply. If your tenants are growing marijuana, they are more likely to invest in security measures around the premises to protect themselves.

If you notice an increase in the security around a tenant’s premises – without an apparent event that would have warranted it, you may want to look deeper into the issue.

In addition to these signs, you can take several measures to prevent tenants from illegally growing cannabis on your premises.

1. Screen Potential Tenants Thoroughly

When tenants grow marijuana illegally within your property, you are likely to carry the heavier burden of their illegal behavior. To prevent this or minimize its chances, screen each tenant thoroughly before allowing them into your property. Here are some factors to keep in mind when screening tenants:

• Run a criminal background check
• Run a credit check
• Call their references and former employers
• Look into whether the tenant has past evictions and follow up on the reason behind these evictions

When screening tenants, ensure that you follow the same script for each tenant. Document your tenant screening policy and ensure that each tenant reads it before filling out applications for your rental property. A uniform policy protects you from potential lawsuits or violations of the Fair Housing laws.

2. Conduct Regular House Inspections

The city of Sacramento requires landlords to conduct annual inspections on their properties. During these annual inspections, you must check that the rental unit is in good condition and does not violate any health or safety codes.

In addition to annual checks required by law, you can conduct additional inspections as long as you notify the tenants ahead of time.

During these inspections, ensure you are not violating any of the tenant's privacy rights or infringing on their freedom to be free from interference.

Note that you should notify your tenants before inspecting the house and have them present during the inspection.

3. Include it in The Rental/Lease Agreement

Your rental agreement is a legally binding contract between you and the tenants. Most landlords in Sacramento include the prohibition of growing cannabis on their property. Your tenants should agree to this requirement before being allowed into the property.

This agreement provides a level of protection for landlords should their tenants violate the terms of the agreement by growing cannabis. A landlord can sue the tenant in civil court for damages if this happens.

The lease should also include the action you will take should a tenant violate the provisions of the lease or rental agreement.

4. Take Action if You Suspect Your Tenants Are Growing Illegally

While California has decriminalized simple possession of marijuana and even allows a person to grow up to six plants, marijuana cultivation remains a federal crime. It can result in the loss of your property through asset forfeiture.

Therefore, if you discover that your tenants are growing marijuana illegally, you should take action to stop it. You could evict the tenant or report them to the authorities to deal with the problem. Note that violations related to illegal cannabis cultivation accumulate by the day – and could be seriously high if you fail to take action.

You should do the same if you cannot reach your tenants for an inspection, as they could be covering up their actions.

Should You Hire an Attorney?

When you receive a six-figure fine for your tenants' illegal activity, the last thing on your mind is to hire an attorney. However, securing legal help is one of the wise choices you can make when facing administrative fines for illegal marijuana cultivation.

The laws around illegal marijuana cultivation are recent and heavily penalize landlords who may even be unaware of their tenant's illegal behavior. Due to these challenges, your best chance is to contact a landlord/tenant attorney to help you navigate the administrative appeal process to fight the penalties you are facing.

You will need an attorney to help you prepare a strong defense to present during the appeal process. In addition, you may need help setting up a lease, or rental agreement that prohibits the cultivation of cannabis yet does not violate any of the rights your tenants may have.

Your attorney could also help you understand your rights when tenants grow marijuana illegally. For instance, can you sue them for damages to your property? How do you protect your assets from forfeiture? What steps should you take when you learn that your tenants are growing marijuana illegally?

Find a Sacramento Defense Attorney Near Me

Sacramento's laws against the illegal cultivation of marijuana often leave landlords stuck with hefty fines when their tenants cultivate more than six marijuana plants. It's often a law that punishes landlords, whether or not they knew of the illegal growing. Fortunately for you, you can fight these charges by presenting a series of defenses during the administrative appeal process. You can also pursue additional measures such as a De Novo review and a Writ of Administrative Mandate – both of which can result in the dismissal or reduction of the fine you are facing. Throughout this process, it's wise to work with an attorney to help you navigate this fairly recent legislation. Foos Gavin Law Firm helps landlords across Sacramento defend administrative penalties when tenants illegally cultivate marijuana. Contact 916-779-3500 to book a free consultation with our attorneys.