Byron v. County of Tehama CA3 ( 2023 )

Filed 7/5/23 Byron v. County of Tehama CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
----
WILLIAM C. BYRON et al., C095205
Plaintiffs and Appellants, (Super. Ct. No. 20CI000030)
v.
COUNTY OF TEHAMA,
Defendant and Respondent.
Plaintiffs William C. Byron and Jenny Swaelas Byron (collectively Byrons)1
appeal the trial court’s denial of their petition for writ of administrative mandate seeking
to overturn the County of Tehama’s (County)2 imposition of a $30,000 fine against them
1 Due to the commonality of the plaintiffs’ last name, we refer to them by their first
names in the opinion where appropriate. No disrespect is intended.
2 Defendant was erroneously sued as the Tehama County Department of
Environmental Health, as noted in the trial court’s September 9, 2021 order.
1
for permitting a nuisance, in the form of a cannabis cultivation, to exist on their property
for 30 days. The fine was imposed after an administrative hearing before a hearing
officer appointed by the County. On appeal, the Byrons, representing themselves in
propria persona, contend the hearing officer’s decision is not supported by the evidence,
they were denied due process, and the County’s cannabis cultivation ordinance 3 is
unconstitutionally vague. We affirm.
LEGAL BACKGROUND
The ordinance regulates the cultivation of cannabis in the unincorporated territory
of Tehama County. The ordinance provides that “[t]he outdoor cultivation of [cannabis],
in any amount or quantity, is hereby declared to be unlawful and a public nuisance that
may be abated.” (§ 9.06.035, subd. (A).) The ordinance further provides that “[n]o
person owning . . . any premises within the county shall . . . permit such premises to be
used for the outdoor or indoor cultivation of [cannabis] plants in violation of this
chapter.” (§ 9.06.035, subd. (I).) The ordinance allows “[a]ny owner or occupant [of the
property to] abate the unlawful [cannabis] cultivation or cause it to be abated at any time
prior to commencement of abatement by, or at the direction of, the enforcing officer. An
owner or occupant abating unlawful [cannabis] cultivation hereunder shall notify the
enforcing officer upon completion of abatement and shall provide evidence that the
unlawful [cannabis] cultivation has been lawfully disposed [of] or lawfully relocated to
another premises in compliance with [the ordinance] or outside the county. Abatement
3 The County refers to the chapter in its municipal code regulating cannabis
cultivation as the “ ‘Tehama County Marijuana Cultivation Ordinance.’ ” (Tehama
County Code, § 9.06.010; undesignated section references are to the Tehama County
Code.) We use the term cannabis instead of marijuana because that is the term used by
the Medicinal and Adult-Use Cannabis Regulation and Safety Act (see Bus. & Prof.
Code, § 26000), and we refer to the Tehama County Marijuana Cultivation Ordinance at
issue in this matter as the ordinance throughout this opinion and provide specific
references to the county code sections where appropriate.
2
shall not be deemed completed until the unlawful [cannabis] cultivation has been
completely removed from the premises and lawfully disposed [of] or relocated, and
notification has been provided [to the County].” (§ 9.06.100.) “[A]ny nuisance as
described in [the ordinance] may be subject to an administrative penalty of up to one
thousand dollars per day.” (§ 9.06.165, subd. (A).)
A written notice describing, among other things, the unlawful cultivation and the
actions required to abate it must be personally served on the owner and occupant of the
property or mailed by overnight mail. (§ 9.06.060, subds. (d)-(e), 9.06.070, subds. (A)-
(B).) If such service cannot be accomplished, service shall be accomplished by posting at
least two copies of the notice on the frontage of the offending property and where the
notice is likely to be seen by the property owner or occupant. (§ 9.06.070, subd. (A)(2).)
A person receiving notice of the existence of a nuisance on their property is
entitled to an administrative hearing before a hearing officer appointed by the County.
(§ 9.06.085, subd. (C).) The hearing “need not be conducted according to technical rules
relating to evidence, witnesses and hearsay. Any relevant evidence shall be admitted if it
is the sort of evidence on which responsible persons are accustomed to rely in the
conduct of serious affairs regardless of the existence of any common law or statutory rule
which might make improper the admission of the evidence over objection in civil
actions.” (§ 9.06.080, subd. (I).)
FACTUAL AND PROCEDURAL BACKGROUND4
On September 3, 2019, the County’s enforcement officer conducted a flyover of
several properties owned by the Byrons. During the flyover, the enforcing officer saw
4 While the Byrons submitted their own transcript of the administrative hearing and
rely on statements appearing only in their transcript when making their appellate
arguments, they do not challenge the trial court’s exclusion of their transcript or reliance
on the administrative record provided by the County. Thus, the Byrons forfeited any
contention that their transcript of the administrative hearing should have been considered
3
and took photographs of two areas containing cannabis plants. One area had less than
five cannabis plants growing out of what appeared to be a pile of boxes. The other area
contained a single dense garden of approximately 100 plants.
On September 9, 2019, the County notified the Byrons that an unlawful outdoor
cannabis cultivation existed on their property and constituted a nuisance under the
ordinance. To notify the Byrons, according to the enforcement officer, the County
“posted the property,” overnight mailed the notice to the Byrons, and posted one copy of
the notice on the property where the Byrons lived.
The County notified the Byrons they were required to abate the nuisance by
September 15, 2019, and that the County would reinspect the property for compliance on
September 16, 2019. Specifically, the County informed the Byrons: “THE
UNLAWFUL CULTIVATION MUST BE ABATED either through one of the preferred
abatement options identified in the attachment or another method as agreed on by the
[e]nforcing [o]fficer. THE ENFORCING OFFICER MUST INSPECT THE PROPERTY
TO VERIFY THE ABATEMENT. The violation will be presumed to still exist until the
[e]nforcing [o]fficer is able to verify lawful abatement.” (Boldface omitted.) The notice
further informed the Byrons how to notify the County the nuisance had been abated and
how to request a reinspection of their property. The notice informed the Byrons a daily
administrative penalty would be assessed at $1,000 per day beginning on the reinspection
for failing to argue that point on appeal. We further do not include facts in our factual
recitation not considered by the trial court because our review of the trial court’s ruling is
limited to the evidence it had before it. (People v. Panah (2005) 35 Cal.4th 395, 434,
fn. 10; People v. Welch (1999) 20 Cal.4th 701, 739.) Thus, the statement of facts is
compiled from the administrative record provided by the County and relied on by the trial
court. Moreover, the audio file provided of the administrative hearing does not
substantiate the Byrons’ claims of bias on the part of the hearing officer. The County’s
counsel made a statement following the administrative hearing that is devoid of context,
and it is unclear whether the hearing officer was present or knew of the statement when it
was made. The statement does not demonstrate bias on the part of the hearing officer or
collusion between the County and the hearing officer.
4
date of September 16, 2019. “The penalty will continue to accrue until the unlawful
[cannabis] cultivation is lawfully abated and the lawful abatement is confirmed by the
enforcing officer.” (Capitalization & boldface omitted.)
As an attachment to the notice, the County provided the Byrons with “Preferred
Abatement Options.” (Boldface omitted.) There was, however, only one option
provided. That option was to “[c]ut and leave in place [the cannabis] until re-inspection
[was] confirmed by code enforcement.” The attachment further stated, “Burning plant
material will be considered destruction of evidence and may be considered an illegal
burn. Burning any public nuisance could result in the inability of the County to
determine that the public nuisance has been lawfully abated and may result in a
significant increase in fines that may otherwise be imposed.” The County further
reprinted the language of the ordinance requiring an owner to provide evidence of lawful
disposal or relocation before the abatement would be deemed completed.
On September 16, 2019, the enforcement officer returned to the Byrons’ property
to reinspect it. The enforcement officer found some cannabis plants properly abated by
having the plants cut and left on the property. The enforcement officer also saw areas of
unlawful abatement of cannabis plants, such that the plants looked as if they had been
harvested instead of being disposed of. Indeed, the plants were not cut and left on the
property, but instead a “skid-steer-type vehicle” appeared to have tilled the land and
removed the plants. The enforcement officer found the equivalent of less than one
plant’s worth of aged leaves and cut stems left on the ground, but no indication of fresh
plant particles or cannabis flowers.
The parties proceeded to an administrative hearing on September 18, 2019. After
the presentation of the County’s evidence, the Byrons asked for a continuance to consult
with legal counsel. The hearing officer denied the Byrons’ motion to continue as
untimely. William then testified that while he owned the property in question, he rented
it to a tenant. After receiving the notice informing him a nuisance in the form of a
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cannabis cultivation existed on his property, William went to his property and informed
the tenant he needed to abate the nuisance. According to William, when he arrived on the
property the cannabis garden depicted in one of the photographs had already been
removed. He believed this was sufficient because the nuisance, i.e., the cannabis
cultivation, no longer existed. Further, while the County informed him of its preferred
method of abating the cannabis cultivation, it did not say that it was the only way to abate
the nuisance. The County merely precluded burning as a method of abatement. Thus, the
Byrons believed they had complied with the County’s abatement order.
After explaining their discovery of the nuisance and efforts to abate it, the Byrons
read several objections into the record. Relevant to this appeal, they objected to the
warrantless search of their property by a helicopter flying lower than 50 feet above their
home and introduced a photograph of the helicopter performing the flyover. The hearing
officer admitted the photograph, noting it was not probative because she could not tell
how close the helicopter was to the ground or when the photograph was taken. The
hearing officer excluded the Byrons’ proffered flight plan of the helicopter because it was
provided through a cell phone application by William without authentication. William
cross-examined the enforcement officer about his flight path and whether the Byrons had
been singled out by the County when enforcing the ordinance. The hearing officer found
the evidence mostly irrelevant because it did not pertain to whether the ordinance had
been violated.
The Byrons also objected that their due process rights were being violated because
of the County’s failure to show them the evidence against them before the hearing and
the hearing officer’s refusal to permit their counsel to be present. They also objected to
the particular hearing officer presiding over the matter “as she is biassed [sic] against
cannabis, has a conflict of interest, and ha[d] used questionable tactics in her former
career as a prosecutor. Referring to the Blake Davidson trial of 2004.” The hearing
officer reiterated that she denied the Byrons’ motion to continue. She further ruled the
6
Byrons did not show she was biased because the case they referenced did not result in
any censure from the district attorney’s office or the courts—“[n]othing was done
wrong.”
The hearing officer found that the cannabis cultivation existed on the date of the
first inspection and continued to exist to the date of the administrative hearing. In
making this determination, the hearing officer pointed to a staff report submitted by the
County, statements by the enforcing officer, and photographs of the Byrons’ property.
The hearing officer further found the amount of an administrative penalty of $1,000 per
day was appropriate.
Following the administrative hearing, the Byrons called the County to schedule a
reinspection to prove the cannabis had been lawfully disposed of. The County informed
the Byrons it could not reinspect their property that day but would call back to schedule a
reinspection. The County later called the Byrons back to schedule the reinspection and
left a message, but the Byrons never returned the phone call to schedule a reinspection.
Based on this evidence, the hearing officer imposed a fine at the $1,000 per day rate from
September 16, 2019, to October 15, 2019, equaling $30,000. The 30-day period was the
standard period for which to impose a fine in the absence of proof of lawful abatement.
On August 13, 2020, the Byrons filed an amended verified petition for peremptory
writ of administrative mandate under Code of Civil Procedure section 1094.5. In their
petition, the Byrons requested the trial court to overturn the hearing officer’s decision
because, among other things, they were denied a fair hearing, and the hearing officer’s
decision was not supported by substantial evidence. Disagreeing, the trial court denied
the Byrons’ writ for administrative mandate and entered judgment in favor of the County.
The County was later awarded attorney fees in the amount of $36,464.
The Byrons appeal.
7
DISCUSSION
Code of Civil Procedure section 1094.5 “governs judicial review of adjudicatory
decisions by administrative agencies.” (Akella v. Regents of University of California
(2021) 61 Cal.App.5th 801, 813.) The inquiry in such a case extends to whether the
respondent to the administrative mandate petition (here, the County) “has proceeded
without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was
any prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd. (b).) An abuse of
discretion is established if the respondent agency has failed to proceed “in the manner
required by law, the [agency’s] order or decision is not supported by the findings, or the
findings are not supported by the evidence.” (Ibid.) Whether the record supports the
agency’s findings and factual basis for its decision or order is a question of substantial
evidence in light of the entire administrative record. (Id., subd. (c); Akella, at pp. 813-
814.) However, to the extent the administrative decision involves a question of law,
including the interpretation of statutes and application of judicial precedent, the
reviewing court exercises independent judgment. (Akella, at p. 815; McAllister v.
California Coastal Com. (2008) 169 Cal.App.4th 912, 921-922.)5
In applying this standard on appeal, “we do not ‘undertak[e] a review of the trial
court’s findings or conclusions. Instead, “we review the matter without reference to the
trial court’s actions. In mandamus actions, the trial court and appellate court perform the
5 The Byrons appear to assert that independent judgment should be exercised when
reviewing whether the evidence supported the hearing officer’s findings. Not so. We
exercise independent judgment on the evidence pursuant to Code of Civil Procedure
section 1094.5, subdivision (c) only when reviewing an administrative decision that
affects a vested, fundamental right, such as retirement benefits. (Alberda v. Board of
Retirement of Fresno County Employees’ Retirement Assn. (2013) 214 Cal.App.4th 426,
433.) That is not the case here where the Byrons point only to their right to be free from
encumbrances on the property they own without a mortgage and upon which they run a
business.
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same function.” ’ ” (Jefferson Street Ventures, LLC v. City of Indio (2015)
236 Cal.App.4th 1175, 1197.)
Before we delve into the merits of the Byrons’ arguments, we note appeals are
subject to rules. When an appellant fails to follow those rules, we may deem arguments
forfeited. For example, we may deem arguments forfeited when the appellant discusses
or raises lurking or tangential arguments without providing proper headings identifying
the arguments as issues to be decided on appeal. (Pizarro v. Reynoso (2017)
10 Cal.App.5th 172, 179 [“Failure to provide proper headings forfeits issues that may be
discussed in the brief but are not clearly identified by a heading”]; Imagistics Internat.,
Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 593, fn. 10
[appellate courts have no duty to respond to improperly headed lurking or tangential
arguments].) “We may and [also] do ‘disregard conclusory arguments that are not
supported by pertinent legal authority or fail to disclose the reasoning by which the
appellant reached the conclusions he wants us to adopt.’ ” (United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.) Finally, “ ‘ “[a]rguments
should be tailored according to the applicable standard of appellate review.” [Citation.]
Failure to acknowledge the proper scope of review is a concession of a lack of merit’ ”
(Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948), rendering the
arguments subject to forfeiture. We deem several of the Byrons’ arguments forfeited
under the foregoing legal principles, as discussed post.
I
Substantial Evidence Supports The Hearing Officer’s
Finding That A Nuisance Existed On The Byrons’ Property
The Byrons contend in their first argument that the hearing officer’s findings are
not supported by the evidence. In their second argument, the Byrons contend the trial
court “errored” in judgment. When making their second argument, the Byrons analyze
the evidence presented at the administrative hearing and conclude it showed they abated
9
the nuisance. Given the substance of the Byrons’ second argument, we consider it an
extension of their first argument that the hearing officer’s findings are not supported by
the evidence.
“In applying [Code of Civil Procedure section 1094.5], we focus on the decision
of the [hearing officer] rather than that of the trial court and ‘ “answer the same key
question as the trial court . . . whether the [hearing officer’s] findings were based on
substantial evidence.” ’ ” (Colony Cove Properties, LLC v. City of Carson (2013)
220 Cal.App.4th 840, 866.) “This requires the reviewing court to consider all relevant
evidence in the administrative record and view that evidence in the light most favorable
to the [hearing officer’s] findings, drawing all inferences in support of those findings.
[Citation.] The reviewing court does not substitute its own findings and inferences for
that of the [hearing officer]. [Citation.] ‘Only if no reasonable person could reach the
conclusion reached by the [hearing officer], based on the entire record before it, will a
court conclude that the [hearing officer’s] findings are not supported by substantial
evidence.’ ” (Akella v. Regents of University of California, supra, 61 Cal.App.5th at
p. 814.)
The Byrons’ argument that the hearing officer’s findings are unsupported by the
evidence can be boiled down to two points. First, the Byrons contend the County failed
to establish cannabis was cultivated on their property because the photographs failed to
show such cultivation and the enforcement officer’s testimony was “ obviously
manufactured to please [the hearing officer] and seriously undependable” given the
photographs submitted. Second, the Byrons contend they proved the cannabis cultivation
was abated because, upon reinspection by the County after notifying the Byrons of the
nuisance, the cannabis cultivation had been removed.
As to the Byron’s first argument that the evidence failed to demonstrate cannabis
cultivation was present, the enforcement officer testified to his own perceptions of the
Byrons’ property when flying over it in a helicopter. He said he saw a large cannabis
10
cultivation consisting of 100 to 125 cannabis plants. The hearing officer found this
testimony credible when the hearing officer determined the County had met its burden to
show a nuisance existed on the Byrons’ property. We must accept the hearing officer’s
credibility determination and may not disregard it without a clear showing the
determination is unreliable. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621,
631 [to overturn the hearing officer’s evaluation of credibility, it is not enough to identify
contradictions; if any “ ‘substantial’ evidence is present, no matter how slight it may
appear in comparison with the contradictory evidence, the judgment must be upheld”].)
The Byrons have not made that showing here. The Byrons assert the hearing
officer was feeding the enforcement officer questions to help build the case against them
while excluding all of their proffered evidence as hearsay, even though hearsay is
permitted at enforcement hearings per the County’s municipal code. We agree with the
Byrons that the municipal code permits hearsay evidence and that the hearing officer
excluded some of their proffered evidence. But the hearing officer is required to weigh
the evidence, and whether the evidence is hearsay necessarily informs that decision.
(§ 9.06.080, subd. (C).) The hearing officer permitted the Byrons to introduce evidence
of the circumstances of their discovery of the nuisance and efforts to abate it. The
hearing officer further permitted the Byrons to introduce evidence that they contacted the
County to learn how to lawfully dispose of the cannabis. As a whole, the Byrons were
permitted to introduce evidence relating to the question before the hearing officer—
whether the Byrons violated the ordinance. The enforcement officer also delivered a
narrative of his perceptions while flying over the Byrons’ property and was not prompted
to give answers by the hearing officer. The hearing officer did ask the enforcement
officer questions, but not in a way to fill in holes in the County’s case. Thus, the hearing
officer’s evidentiary rulings and questions of the enforcement officer do not undermine
her credibility assessment of the enforcement officer.
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Further, the enforcement officer testified that the photographs depict a large dense
grove of plants in the center of tall trees that was later removed by the Byrons’ tenant to
reveal a large barren garden. Even if the photographs are subject to interpretation and do
not definitively demonstrate a large cannabis cultivation, the photographs still serve to
support the enforcement officer’s testimony that he saw a cannabis cultivation. The
enforcement officer also testified he was experienced in both criminal and civil cannabis
abatement and had experience identifying cannabis. Taking the photographs and the
enforcement officer’s testimony together provides substantial evidence the cannabis
cultivation, i.e., the nuisance, existed on September 3, 2019. (See People v. Ghobrial
(2018) 5 Cal.5th 250, 281 [“ ‘unless the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a conviction’ ”].)
This brings us to the Byrons’ second contention that the nuisance was abated
before the administrative hearing was held. Because the ordinance defines the scope of
the nuisance, we look to that definition to determine whether the County has met its
burden. (See Chun v. Del Cid (2019) 34 Cal.App.5th 806, 815; see also Bruns v. E-
Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724 [“ ‘We first examine the statutory
language, giving it a plain and commonsense meaning. We do not examine that language
in isolation, but in the context of the statutory framework as a whole in order to
determine its scope and purpose and to harmonize the various parts of the enactment’ ”].)
Pursuant to the ordinance, the nuisance exists until the cannabis is lawfully
disposed of. On that point, the enforcement officer testified that an unpermitted cannabis
cultivation existed on the Byrons’ property on September 3, 2019, and upon reinspection
of the property on September 16, 2019, the cultivation looked as though it had been
harvested instead of disposed of. Remnants left behind in the grove looked like they
were a year old and did not amount to the quantity of cannabis plants the enforcement
officer saw from the helicopter the week before. The enforcement officer provided
photographs of an empty garden sparsely populated with plant trimmings to support his
12
testimony the cultivation had not been lawfully disposed of. This evidence provides
substantial evidence the nuisance was ongoing as of September 16, 2019. The facts
remained the same as of the continued administrative hearing on October 30, 2019, when
the $30,000 fine was imposed on the Byrons.
Accordingly, substantial evidence supports the hearing officer’s finding the
nuisance was ongoing from September 16, 2019, through October 15, 2019.
II
The Byrons Were Afforded Due Process
The Byrons contend their due process rights were violated in several respects.
They contend the County did not properly notify them of the nuisance pursuant to the
ordinance or provide them with an adequate opportunity to prove lawful disposal. They
further contend the hearing officer erroneously denied them representation of counsel and
was biased in her evidentiary rulings.
We start with the Byron’s challenges against the hearing officer. We have already
addressed the Byron’s last contention—that the hearing officer was biased—in our
discussion of the sufficiency of the evidence. The hearing officer was entitled to consider
the source and type of evidence introduced when weighing her credibility and veracity.
(§ 9.06.080, subd. (C).) The hearing officer permitted the Byrons to introduce evidence
related to their discovery and efforts to dispose of the cannabis cultivation. The evidence
the hearing officer excluded pertained to collateral matters unrelated to whether the
ordinance was violated. In particular, the flight path of the helicopter that flew over the
Byrons’ property and whether the enforcement officer also saw cannabis cultivations on
their neighbors’ properties.
Further, the Byrons’ argument that the hearing officer violated their due process
rights through her evidentiary rulings is devoid of citations to the record or to relevant
legal authority demonstrating the rulings were erroneous, and thus prejudiced them.
Thus, this contention is forfeited. (See Air Couriers Internat. v. Employment
13
Development Dept. (2007) 150 Cal.App.4th 923, 928 [a party’s brief must support the
argument by appropriate reference to the record; “[w]e have no duty to search the record
for evidence and may disregard any factual contention[s] not supported by proper
citations”]; see also People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10 [“Because
defendant ‘does not expand on the issue with either argument or citation to relevant
authority,’ we decline to address it”], superseded by statute on another ground as stated in
People v. Tirado 12 Cal.5th 688, 696.)
Similarly, the Byrons have forfeited their claim the hearing officer erroneously
denied them counsel. The Byrons spend much time claiming, without citation to
authority, they had a right to be represented by counsel at the administrative hearing. But
the hearing officer did not preclude them from being represented. The hearing officer
denied them a continuance for the purpose of allowing counsel to appear in the middle of
an administrative hearing. The Byrons do not attack the hearing officer’s denial of their
motion to continue in their opening brief, nor do they cite to any authority demonstrating
the denial of their motion constituted a denial of due process. Thus, this issue is also
forfeited. (See People v. Oates, supra, 32 Cal.4th at p. 1068, fn. 10; see also Raceway
Ford Cases (2016) 2 Cal.5th 161, 178 [we do not address arguments raised for the first
time in appellant’s reply brief].)
Also forfeited are claims related to the Byrons’ allusions to the County’s and
hearing officer’s bias toward cannabis cultivation and claims related to the County’s
search of the Byrons’ property during a flyover. The Byrons fail to cite to any evidence
relating to these claims and to relevant authority so that we may analyze these claims.
(See People v. Oates, supra, 32 Cal.4th at p. 1068, fn. 10.) The Byrons also do not raise
claims related to the amount of the imposed fines and attorney fees until their reply brief
in which they argue the amounts were constitutionally excessive. These claims are
forfeited. (Raceway Ford Cases, supra, 2 Cal.5th at p. 178.)
14
As to the actions of the County, the Byrons’ claims of error also lack merit. The
Byrons claim the County failed to notify them of the nuisance pursuant to the ordinance
because the County failed to post at least two notices of violation on property reasonably
likely to give them notice and failed to serve a notice on their tenant who occupied the
property. Not so. The enforcement officer testified he posted a notice of violation on the
offending property and caused a notice to be overnight delivered to the Byrons’ address.
He also testified he posted one notice on the property where the Byrons lived. The
requirement the Byrons point to regarding duplicate service is necessary to comply with
only when the County has failed to notify a property owner pursuant to the previous
section of the notice provisions. That section requires the County to deliver the notice of
violation personally to the owner of the property or mail it to the non-occupying owner’s
address and to serve the occupant of the property. (§ 9.06.070, subd. (A).) Thus, the
record demonstrates the County complied with the ordinance when notifying the Byrons
of the nuisance.
The Byrons were also sufficiently notified of the nature of their violation and the
necessary steps required to abate it, contrary to their argument. The notice provided to
the Byrons informed them of a cannabis cultivation on their property and required them
to lawfully dispose of the cannabis, preferably by cutting down the plants and leaving
them for the County to inspect. The Byrons complied with this directive with two plants.
Their tenant did not comply with the notice and instead harvested the unpermitted
cannabis cultivation. The notice sufficiently informed the Byrons that such harvest
constituted unlawful disposal and that the nuisance would not be considered abated under
such circumstances. In the end, the Byrons were notified of the conduct the County
believed was a violation of the ordinance and given an opportunity to defend against that
allegation.
For these reasons, the Byrons’ reliance on several cases is misplaced. (Citing
Sunset Amusement Co. v. Board of Police Comm’rs (1972) 7 Cal.3d 64, 81-82
15
[municipality complied with due process when it failed to renew a business permit based
on the business’s lack of adequate parking after notifying the business it failed to comply
with an ordinance requiring adequate parking], Smith v. State Bd. of Pharmacy (1995)
37 Cal.App.4th 229, 241-245 [pharmacy board violated due process by revoking license
on theory not disclosed before hearing], Rosenblit v. Superior Court (1991)
231 Cal.App.3d 1434, 1445-1447 [hospital violated due process when it alleged a variety
of violations related to 30 patients without providing specific allegations as to each
patient or permitting the doctor to make copies of patient charts to prepare his defense],
Wheeler v. State Bd. of Forestry (1983) 144 Cal.App.3d 522, 526-527 [forestry board
violated due process by revoking forester’s license on theory not alleged in the
accusatory pleading], Stouman v. Munro (1963) 219 Cal.App.2d 302, 306-307 [alcohol
beverage control board complied with due process by revoking license on basis alleged in
accusatory pleading].)
III
The Byrons Have Not Demonstrated The Ordinance Is Unconstitutionally Vague
In the Byrons last two contentions, they purport to challenge the constitutionality
of the ordinance. In their substantive arguments, however, the Byrons rehash many of
the contentions they raised throughout their opening brief, including the perceived bias of
the hearing officer, the hearing officer’s failure to permit them to be represented by
counsel, and the sufficiency of the notice provided by the County. We have already
addressed these claims and will not do so again.
As to the constitutionality of the ordinance, the Byrons appear to argue the
ordinance is devoid of information that would inform them of how to abate the cannabis
cultivation after it had been discovered. The only authority cited for the proposition that
the ordinance is vague is Connally v. General Construction Co. (1926) 269 U.S. 385,
391. In that case, the Supreme Court stated, “That the terms of a penal statute creating a
new offense must be sufficiently explicit to inform those who are subject to it what
16
conduct on their part will render them liable to its penalties, is a well-recognized
requirement, consonant alike with ordinary notions of fair play and the settled rules of
law. And a statute which either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law.” (Ibid.)
The ordinance clearly provides that an unpermitted cannabis cultivation is a
nuisance and, for the County to consider the nuisance abated, the landowner must provide
evidence that the cannabis cultivation was lawfully disposed of or moved. The Byrons
do not assert why those provisions are vague, except to argue that, in practice, the County
requires only that a landowner perform the preferred method of abatement, i.e., cut the
cannabis plants and leave them in place for reinspection. According to the Byrons, this
language should be included in the ordinance, and because the ordinance does not include
this language, it is an underground regulation. As an example, the Byrons point to their
own case and argue the County would have been satisfied only if they had complied with
the County’s preferred abatement option, when, in reality, they complied with the
ordinance by lawfully disposing of the cannabis when their tenant mowed over the
cultivation and the cannabis was buried under ground.
We disagree. As described by the enforcement officer, the cannabis on the
Byrons’ property was not disposed of or buried, as the Byrons assert, but was instead
harvested. If the evidence in fact demonstrated the cannabis had been disposed of by
mowing it over and leaving it under ground, then the County may have accepted that the
cannabis had been lawfully disposed of per the language of the ordinance. But there is no
evidence to support the Byrons’ contention of lawful disposal, and there is nothing in the
record demonstrating the County would have rejected that method of disposal. For these
reasons, the Byrons have not demonstrated the ordinance is unconstitutionally vague.
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DISPOSITION
The judgment is affirmed. The County is awarded its costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(1)-(2).)
/s/
ROBIE, Acting P. J.
We concur:
/s/
HULL, J.
/s/
HORST, J.*
* Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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