A SC hemp farmer arrested earlier this year – who was charged with a crime for growing hemp although he had submitted his application – has gotten an injunction from a Marion County court allowing him to sell his crop until the underlying case is resolved.
Although it is now legal to grow and harvest hemp in SC with a permit, SC authorities are demonstrating their determination to shut down hemp growers in spite of the legislature’s clear intent to encourage hemp cultivation in SC.
Why was the hemp farmer arrested? Is it a crime to grow hemp without a permit? Is it okay for SC to refuse to approve a permit based on a technicality and then arrest the hemp grower?
SC Hemp Farmer was Arrested for a Technical Error on Application
Earlier this year, a hemp farmer in Harleyville, SC, was arrested and charged with the non-crime of growing hemp on unlicensed land (although it is “unlawful,” SC law does not provide any criminal penalty for growing hemp without a license):
Law enforcement mowed down 10 acres of hemp near Harleyville on Thursday and arrested John Pendarvis – the first farmer in the state to be charged with growing the crop on unlicensed land.
Because of a mapping error, Pendarvis is accused of violating the 2019 Hemp Farming Act…
Pendarvis estimates that up to $12 million worth of hemp was turned into mulch in a matter of minutes.
He was licensed by the state Department of Agriculture to grow hemp, but the GPS coordinates he submitted did not include one of his fields. Was he trying to hide his field of hemp for some reason, even though he had already been granted a permit?
No – when he realized the issue, he submitted an amendment to include the GPS coordinates of the second field, but the Department of Agriculture denied his amendment:
He is licensed by the state to grow the strain of cannabis. But GPS coordinates required by the Agriculture Department didn’t include one of his two fields.
The farmer said he even attempted to correct the mapping error and applied for an amendment to his application to include his other field on Maple Road, near Harleyville.
The Agriculture Department denied that amendment.
After the amendment was denied, a dozen squad cars showed up to arrest him:
On Thursday, he said a dozen squad cars from the Dorchester County Sheriff’s Office showed up to arrest him.
Pendarvis was cited with “unlawful cultivation of hemp – 1st offense,” according to an affidavit and was forced to pay $3,000 in bail Friday to leave the Dorchester County Detention Center.
But what is the crime?
What is the Crime?
SC law does not make “unlawful cultivation of hemp” a crime.
There is no punishment provided in the law. The statute says only that it is “unlawful” to grow hemp without a permit, and the law does not make it a criminal offense.
If it is a civil offense only – and it cannot be a criminal offense unless the legislature says it is a criminal offense – you can’t be arrested for it. You can’t be forced to pay a bond to secure your release from jail. There is no criminal penalty and no potential jail sentence.
Does the legislature know how to make a proscribed activity a crime? Of course, they do – throughout the SC Code, criminal offenses are called criminal offenses and potential penalties are provided for them.
In the 2019 Hemp Farming Act, the same law that makes hemp cultivation without a permit “unlawful,” the legislature specifically made it a crime for a person to grow marijuana in an area disguised by industrial hemp – specifying that it is a misdemeanor punishable by up to three years in prison:
Section 46‑55‑60. An individual who manufactures, distributes, dispenses, delivers, purchases, aids, abets, attempts to, or conspires to manufacture, distribute, dispense, deliver, or purchase, or possesses with the intent to manufacture, distribute, dispense, deliver, or purchase marijuana, in a manner intended to disguise the marijuana due to its proximity to industrial hemp, is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than three years, fined not more than three thousand dollars, or both. The penalty provided for in this section may be imposed in addition to any other penalties provided by law.”
On the other hand, there is no designation of “unlawful cultivation of hemp” as a criminal offense and no punishment is provided…
SC Hemp Farmer Gets an Injunction Allowing Him to Sell his Crop
SC law enforcement destroyed the man’s Dorchester County crop, but there were another two acres in Marion County – like the Dorchester County field, he had submitted an amendment application to include his Marion County field:
Agents were made aware of an additional 2 acres of land in Marion County that Pendarvis was growing hemp on. It was not included in the Agriculture Department’s documents on file for the farmer, but he had submitted an acreage amendment application to include them.
Last month, a Marion County court issued an injunction allowing him to sell his crop and to place any profit into a trust account until his criminal case is resolved…
Your SC hemp business law attorney on the Axelrod team can help you to get your business up and running, apply for hemp permits, negotiate contracts, incorporate your business, answer questions about the quickly changing legal landscape related to hemp and hemp products, and handle all of your business’ legal needs.
We are also prepared to fight any criminal charges brought against hemp growers, processors, stores, or consumers. Schedule a free consultation with a business law or drug crimes defense attorney on the Axelrod team. Call us now at 843-353-3449 or fill out our contact form today.