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SC hemp farmer files federal lawsuit over unlawful arrest, destruction of crop

Pendarvis in hemp field.jpg (copy)

John Pendarvis stands in a hemp field on his farm in Harleyville on Oct. 1, 2019. Authorities mowed down 10 of his 20 acres of hemp after he was accused of violating the 2019 Hemp Farming Act due to a mapping error. File/Staff

A Dorchester County hemp farmer has filed a federal lawsuit against several state and local departments alleging officials conspired to destroy his crop and unlawfully arrest him.

John Pendarvis, who maintains farmland in the Harleyville area, was arrested in September 2019 on a misdemeanor charge after state officials accused him of willfully violating the S.C. Hemp Farming Act by growing his plants in places never registered with the state.

He became the first person to be charged under the law, which the Legislature had passed earlier that year.

The farmer's 92-page suit, filed Sept. 16 in U.S. District Court in Charleston, names S.C. Attorney General Alan Wilson, State Law Enforcement Division Chief Mark Keel, S.C. Department of Agriculture Commissioner Hugh E. Weathers, Dorchester Sheriff L.C. Knight and S.C. Forestry Commission Assistant Chief Jonathan Calore, as well as over two dozen of their employees.

The lawsuit seeks unspecified damages and a jury trial.

At the center of the dispute is the 10 acres of hemp authorities mowed down the same day they placed Pendarvis in handcuffs — acts the farmer and his attorneys argue violated Pendarvis' constitutional rights. 

It alleges authorities engineered the murky state law to penalize Pendarvis, whom they cited with "unlawful cultivation of hemp — 1st offense," according to an affidavit. There was no clear punishment related to the offense at the time of his arrest. Nor were there specific procedures for agents to follow to enforce the law.

Representatives from SLED, the Sheriff's Office, the Agriculture Department and the Forestry Commission declined to comment on the pending litigation.

Robert Kittle, a spokesman for the Attorney General's Office, said the suit "lacks merit." Wilson and his employees were doing their jobs — "no more, no less," Kittle said.

Patrick McLaughlin, one of Pendarvis' attorneys, pointed to the trove of evidence included in the complaint he said shows authorities' willingness to violate his client's rights.

There's "definitely" more of it than evidence supporting Pendarvis ever willfully violated the law, McLaughlin said.

A murky law

Pendarvis applied in May 2019 for a license through the Agriculture Department's hemp-farming program. The department ensures hemp farmers are complying with provisions outlined under the state law which include providing GPS coordinates of the farmland and producing hemp that contains less than the federally allowed limit of tetrahydrocannabinols, or THC.

Cannabis plants with a certain amount of THC are considered marijuana and are capable of getting a user high.

The law does differentiate between farmers who negligently violate it and those who do so willfully. The so-called negligent growers are allowed to develop a "corrective action plan" with the Agriculture Department; no criminal action is taken.

If the department finds someone in willful violation of the law, they're immediately reported to SLED and the Attorney General's Office. They don't get the opportunity to create a plan, the law states.

An Agriculture Department employee visited Pendarvis' Dorchester County farm two months after he received his license. The employee discovered hemp growing on coordinates Pendarvis hadn't submitted to the department — a violation of the law.

Pendarvis tried amending his application to include the additional field, claiming it had been an oversight. The Agriculture Department told the farmer they'd review his case and determine if he was in willful violation of the grower's agreement, according to emails cited in the lawsuit.

Four days later, Agriculture Department officials contacted SLED agents to request they "enact enforcement" on Pendarvis, having determined the farmer willfully grew hemp on non-reported acreage, the emails state. 

SLED agents were confused about their role from the outset. "We are having difficulty in what to address with so many gray areas concerning enforcement," according to an email.

The agency sought guidance from the Attorney General's office on how to enforce the law, particularly with regard to seizing and destroying the hemp.

The office sent SLED an opinion in August 2019 advising agents to get permission from a judge before taking any illegally grown hemp. It also recommended the farmer should have a hearing before a judge "in an abundance of caution," according to an email.

"Our Office advises that SLED proceed with the utmost care to fully ensure that the grower and all interested parties receive due process in any enforcement action," the opinion states.

SLED ignored the Attorney General's advice, the lawsuit contends. Nowhere in their communication is there talk of the Agriculture Department working with Pendarvis to develop a corrective action plan, the lawsuit also claims. Authorities had already decided he was in willful violation of the law, the emails show.

The Agriculture Department's official hemp-farming state plan, which federal officials approved months after Pendarvis' arrest, does outline steps for enforcement. The procedures include notifying the farmer of an investigation and the opportunity for a hearing — protections which weren't afforded to Pendarvis, his attorneys argue.

From grass to mulch

Pendarvis said he didn't hear from the Agriculture Department until late August 2019, when officials rejected his applications for additional hemp farmland and notified him of SLED's involvement. He had also been growing the crop on 2 acres in Marion County, which was similarly disputed by the state as illegal.

A Dorchester County magistrate signed a warrant three weeks later authorizing Pendarvis' arrest. SLED agents, didn't notify the judge of their plans to seize and destroy his crop, according to the suit. They'd previously sought approval from a circuit court judge who denied it, citing the need for a hearing.

SLED agents, along with Dorchester County deputies and Agriculture Department officials, arrived at Pendarvis' farm Sept. 19, 2019 to serve the warrant and inform him they'd have to do something with the crop. Pendarvis requested at least seven times to speak with his lawyer before authorities destroyed the hemp, according to body-worn camera footage referred to in the suit. His requests were repeatedly denied.

As deputies drove Pendarvis to the county jail, SLED agents turned the farmer's "thriving" hemp crop into mulch. One Agriculture Department official memorialized the occasion, taking four selfies in front of the hemp field before it was destroyed, according to pictures included in the suit.

The Attorney General's Office had coordinated with SLED and the Agriculture Department earlier that morning to change its previous opinion, according to discovery cited in the lawsuit.

The altered opinion allowed Pendarvis' property to be seized and destroyed without the approval of a judge, the suit contends.

Pendarvis was released from custody after posting a $3,000 bail. He soon became aware SLED agents and the Agriculture Department intended to also destroy his Marion County hemp fields, the lawsuit states.

Pendarvis' lawyers filed motions to stop it, which a judge granted — a small victory for the farmer, who was allowed to continue growing the crop on those fields until his criminal case resolved. This lawsuit remains pending in Marion County.

The 1st Circuit Solicitor's Office dismissed the criminal charge against Pendarvis Aug. 5, noting the state had insufficient evidence to prove his actions were willful, according to the lawsuit.

Pendarvis no longer holds a hemp-farming permit, said Eva Moore, a spokeswoman for the Agriculture Department. Moore is also named in the lawsuit.

In addition to the federal case and the lawsuit filed in Marion County, Pendarvis brought state claims in August 2021 against the Dorchester County Sheriff's Office, SLED and the Agriculture Department.

The suit, which remains pending in Dorchester County, seeks unspecified damages for the unlawful arrest as well as the unlawful taking and destruction of Pendarvis' hemp crop. 

Turbulent times

It's unclear whether Pendarvis' arrest and subsequent lawsuits have cooled interest in the state's hemp farming program.

The industry has shown some turbulence in the wake of the 2019 state law — unsurprising, given its novelty, Moore said. There were 114 permitted farmers by the end of the season that year. In April 2020, the Agriculture Department said around 350 people had applied for licenses. 

There were 216 permitted farmers in 2021. The number dropped to 190 this year, Moore said. Approved acreage has also decreased since 2019, from about 3,000 to 2,800 acres on record in 2022.

Still, the Agriculture Department continues to "feel good" about hemp farming in the state, Moore said, citing projects like the BrightMa Farms, located near Moncks Corner on 10 acres of heirs' property. The company is nearly three years into a project to provide technical and strategic support to hemp farmers across the state, particularly minorities.

Prosecutors in the Attorney General's Office maintain the hemp farming law is still "too vague" when it comes to enforcement, Kittle said. State legislators "need to clear it up," he added.

Call Jocelyn Grzeszczak at 843-323-9175. Follow her on Twitter at @jocgrz.

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