IMPORTANT MESSAGE ABOUT POLICE “RAIDS”

We are seeing a substantial increase in the number of police “raids” of marijuana businesses.  A police “raid” (called a raid by many people in the marijuana industry) is, in fact, the serving of a search warrant in a criminal proceeding.  For the police department to get a search warrant they must give the judge a sworn statement that there is probable cause to believe that there is a crime being committed at the premises to be “raided” (searched).

In the raid the police department can also make arrests of the volunteers, managers, and even security officers. 

 Under the law the purpose of the search warrant is to gather evidence regarding a crime.  My office, on behalf of my clients files Complaints for Declaratory Relief in the civil courthouse before we begin operating any marijuana business in any City or County.  By filing the Complaint for Declaratory Relief in the civil court there is no reason for the police to initiate a criminal case and obtain a search warrant.  With a Complaint for Declaratory Relief on file in the civil court of the courthouse “evidence” can be obtained through discovery, no need for a search warrant.  Also by filing the Complaint for Declaratory Relief in the civil court and serving the Complaint on the City Attorney (or county counsel) the City (or County) then knows that I am the attorney on the case and the case proceeds in the civil court, not the criminal court.

By the way Senate Bill 94 signed in to law by the Governor on June 27, 2017, allows the police department to immediately destroy all the marijuana which is seized through a search warrant.  No order is required for the police department to destroy the marijuana.

 If you want any more information about how we are handling the Complaint for Declaratory Relief and how we are trying to avoid criminal proceedings, search warrants and arrests, please email or contact my office.

IMPORTANT MESSAGE STOPPING POLICE RAIDS OF MARIJUANA BUSINESSES

To avoid police raids (search warrants and arrests) of the marijuana businesses which I represent we are filing complaints for declaratory relief in the County Superior Court.  These complaints generally allege that the City or County regulations for marijuana do not comply with the new state laws.  We do this before the marijuana business opens for business.  If the marijuana business is already operating without a complaint for declaratory relief on file with the court you will likely be harassed and/or raided by the local police department and the volunteers can be arrested. 

Raids and search warrants are used by the police department to gather evidence of a crime.  When we file the complaint for declaratory relief (civil action) in the superior court and serve the City the police department has no reason to get a search warrant or conduct a raid.  Instead we work with the City Attorney’s office and with the judge assigned to our civil action.  Any “evidence” of a potential crime can be obtained by discovery in the civil action, no need for a search warrant.  No need for a “raid”.

If, on the other hand, you are operating a marijuana business in a city without any city licenses and without any lawsuit on file with the court challenging the City’s regulations you are, in fact, probably operating a “drug house” under state law.  This makes you subject to raids and arrests.  It is one thing to open a marijuana business and at the same time file a complaint which questions the validity of the cities anti marijuana regulations.  It is another thing altogether to show complete disrespect for the laws and for the city by just opening a marijuana business without any licenses and without any lawsuit being filed.

If you want more information on how we handle the opening of marijuana businesses by questioning the validity of the cities (or county) marijuana regulations, please call or better yet send an email.

 

UNDER LAW EACH CITY AND COUNTY CAN HAVE THEIR OWN SEPARATE REGULATIONS FOR MARIJUANA

UNDER LAW EACH CITY AND COUNTY CAN HAVE THEIR OWN SEPARATE REGULATIONS FOR MARIJUANA

There are 254 cities in California and many counties as well.  It gets a little confusing because many cities and counties have the same name.  For example, San Bernardino County and the City of San Bernardino.  Riverside County and the City of Riverside.  Orange County and the City of Orange.  Los Angeles County and the City of Los Angeles.  Under law each city and county can have their own separate regulations for marijuana.  It is, of course, not possible for us to know the regulations of every city and county in California.

I am relying on my clients to tell me if the city or county in which they are operating is changing its marijuana regulations.  Once I hear from you that the city or county is changing its marijuana regulations to allow for licenses to be issued, I will take over and work with that particular city or county on your license.  We are also working on state licensing.  That will be happening later in the year.

IMPORTANT MESSAGE REGARDING CITY LICENSES FOR MARIJUANA BUSINESSES

IMPORTANT MESSAGE REGARDING CITY LICENSES FOR MARIJUANA BUSINESSES

We have now filed about 50 lawsuits against Cities in California alleging that their marijuana regulations do not comply with state laws.  Proposition 64 (AUMA) was passed by the voters on November 8, 2016.  On June 27, 2017, Governor Brown signed Senate Bill 64 which repealed the Medical Marijuana Regulation and Safety Act (MMRSA).

Many of the Cities are now changing their marijuana regulations (laws) to allow for licenses for marijuana businesses.  This is because of the new state laws and because of our lawsuits.

We are working on City (and County) licenses for my clients.  (state licensing will happen later in the year).  I am a former City Planning Director and have written many zoning ordinances for Cities and Counties.  This is a good background for City licensing.  If you need our help call or better yet send an email.  Thank you in advance.

PROPOSITION 64 AND STATE LICENSING/CITY REGULATION OF MARIJUANA BUSINESSES

As you know on November 8, 2016, the voters of the State of California passed Proposition 64, the Adult Use of Marijuana Act (AUMA) by 58%.  On June 27, 2017, Governor Brown signed Senate Bill 94 into law.  Senate Bill 94 repealed the Medical Marijuana Regulation and Safety Act.  The state licensing which will be available by January 2018 will be based upon Proposition 64, the Adult Use of Marijuana Act.

The Medical Marijuana Regulation and Safety Act which has now been repealed was friendlier to the cities.  MRSA required a city license before an application for a state license could be submitted.  AUMA is different.  AUMA only says that the state license should not “conflict” with local (city and county) regulations.

It is important to understand that the new state licenses relate only to state marijuana and related laws.  With a state license whether it be for cultivation, transportation, and manufacturing or for a dispensary, there can be no criminal prosecutions.  There can be no search warrants.  There can be no arrests.  This is much different than the marijuana laws under which the police departments could obtain search warrants to basically close down a dispensary or to cut down all the plants in a cultivation even if the dispensary or cultivation complied with state law.  The medical marijuana laws provided an “affirmative defense”.  AUMA provides immunity from criminal charges.

Another point which is important to understand is that the state licenses under AUMA, which relate only to state laws, still allow the cities and counties to enact and enforce their zoning regulations.  AUMA, however, imposes new requirements on the cities (and counties) that effects how the cities and counties use their zoning against marijuana businesses.  AUMA contains language that says that a vote of the people within a locality is required for a city or county to completely ban or prohibit marijuana activities.  There would be a lot of arguments in court about this.  The cities are not accepting this language in AUMA.  The cities want to maintain control through the city council.

I think that the most important change in the state law which effects the ability of cities and counties to regulate is the fact that AUMA, for the first time, declared that the regulation of marijuana in the State of California is a matter of “statewide concern”. 

I was in the Riverside County Superior Court on Friday.  The judge was very interested in our argument that AUMA by declaring marijuana to be a matter of statewide concern implicates the “Regional Welfare Doctrine” of California zoning law.  Again, I am a former city planning director and have written many zoning ordinances and regulations.  When cities enact zoning laws they are of course required to consider the need for the zoning regulation and the fairness of the zoning regulation.  For land uses or activities which have statewide or regional impacts, zoning law requires that the city council or board of supervisors make specific findings regarding the regional impacts of their zoning regulation.  For regulation of marijuana by the cities and the counties this requirement to consider the regional impacts and to make findings is huge!  The “Regional Welfare Doctrine” will change how each city and county in California have been regulating marijuana (dispensaries and cultivations) without considering the regional impacts and the regional needs for marijuana.  Again, this is huge. 

 We have over 20 lawsuits now in court against cities and counties in Southern California over their zoning regulations which do not comply with the new state laws.  Please call or send me an email if you want more information what we are doing in court to make the cities and counties comply with the new state laws.  Cities that are not complying with the new state laws, including the “Regional Welfare Doctrine”, will not be able to close down marijuana businesses.  City regulations which do not comply with state laws cannot be enforced.

We are using these new state laws and lawsuits against the cities to protect the marijuana businesses which I represent.

SENATE BILL 94, THE REPEAL OF CALIFORNIA’S MEDICAL MARIJUANA REGULATION AND SAFETY ACT

As you probably know on June 27, 2017 Governor Brown signed Senate Bill 94 into law, the Medicinal Adult Use of Cannabis Regulation and Safety Act (MAUCRSA).  Senate Bill 94 repealed the Medical Marijuana Regulation and Safety Act (MMRSA).  MMRSA was the medical marijuana law which was supported by the cities and counties.  MMRSA required a city or county license for marijuana cultivations or dispensaries in order to be able to apply for a state license.  The Adult Use of Marijuana Act, Proposition 64, which is now incorporated into Senate Bill 94 does not require a city or county license in order to apply for a state license.  AUMA requires only that the state license not be in “conflict” with the city or county regulation.  AUMA also requires that the cities and counties comply with the “Regional Welfare Doctrine” of zoning which requires that the city (or county) marijuana regulations consider the “regional impacts”.  This means it will be much more difficult for cities and counties to completely ban or prohibit marijuana businesses.

For these reasons, many cities are now reconsidering their marijuana regulations.  Also, many of the cities are now avoiding court cases on their marijuana regulations (we have filed about 20).  The cities (and counties) are now using code enforcement and threats and harassment of the landlords. 

 As you probably know I am the former Planning Director of the City of Loma Linda and former Environmental Review Board Officer for San Bernardino County.  I have written many zoning ordinance and we are defending against code enforcement actions by the cities and we are dealing with the landlord problems.  If you have questions, either call or email me.

Status of State of California Marijuana Laws

As you probably know, Governor Brown signed Senate Bill 94 into law.  Senate Bill 94 repealed the Medical Marijuana Regulation and Safety Act (MMRSA).  Senate Bill 94 which is referred to as the Medicinal and Adult Use Cannabis Regulation and Safety Act (“MAUCRSA”) incorporates Proposition 64, the Adult use of Marijuana Act which was passed by the voters on November 8, 2016 and became effective November 9, 2016.  Is this starting to get confusing?  Let me see if I can break it down.

 

The Medical Marijuana Regulation and Safety Act was legislation, not a voter initiative.  MMRSA was very favorable to the cities.  Under MMRSA the rules were that you could not apply for a state license until you first obtained a city license for marijuana activities.  This gave all the power and control to the cities (and counties).  The Adult Use of Marijuana Act, on the other hand, was a voter initiative, not a law passed by the legislature.  AUMA is much more favorable to the marijuana businesses in California than was MMRSA.  AUMA does not require a city license (or county) to apply for a state license.  It only says that the state license should not be issued if it conflicts with a city law.  AUMA, however, declares marijuana activities to be of statewide significance.  This triggers the “Regional Welfare Doctrine”, a requirement of zoning that the cities (and counties) consider and make findings as to the regional impacts of their marijuana regulations.  AUMA also says, in the preamble that for the cities (and counties) to ban marijuana there must be a vote of the people within the locality. 

 

The important thing is that the Adult Use of Marijuana Act which is not as friendly to the cities is now the law through the new Senate Bill 94 and MMRSA, the Medical Marijuana Regulation and Safety Act has been repealed.  It is a fiction to say that MMRSA and AUMA have been merged.  MMRSA has been repealed.

 

We are now in court suing about twenty cities over their medical marijuana regulations that do not comply with the new state laws.  What we are seeing is that many of the cities are turning to code enforcement to try to close down marijuana businesses rather than trying to close down the marijuana businesses in court.  As you probably know, I am the former City Planning Director of the City of Loma Linda, I have a background in code enforcement and I am now helping my clients with the code enforcement issues.  I am also told by some of the city attorneys that many cities are now reconsidering their bans on marijuana facilities.  In the next few months we should see more cities issuing licenses for marijuana businesses, dispensaries and cultivation.

 

If you want more information about the constantly changing marijuana regulations and laws, you can call my office or email me.

LAWSUITS AGAINST THE CITIES FOR HARASSING MARIJUANA BUSINESSES

We are a little slow in sending out these information updates because I am very busy in court. We have about 20 lawsuits now in court against cities and counties regarding their marijuana regulations and harassment of marijuana businesses. We have filed a number of Proposition 64 lawsuits against cities (and counties). These lawsuits allege that the cities have not adopted new regulations for Proposition 64 and that the cities cannot use medical marijuana regulations to prohibit commercial (non-medical) marijuana businesses.

We are seeing a lot of cities using city building and safety and code enforcement to “red tag” marijuana businesses as a way of closing down the marijuana business. We are also seeing cities ordering that the electrical service to the marijuana business be disconnected. We have been authorized by one of my clients to file a lawsuit against the City of Garden Grove for “inverse condemnation” and for violations of the federal civil right statute 42 USC 1983. This will be a landmark case, suing the city for violation of the 5th amendment of the constitution which prohibits the “taking” of property without due process and just compensation. When the city “red tags” a building or causes the electrical service to be disconnected, without good cause, that is a “taking” (condemnation) of the property.

I will keep you informed. If you are having problems with the city building and safety departments refusing to issue permits or “red tagging” the building, I am interested in hearing about that.

LEGAL STRATEGIES FOR DEFENDING AGAINST CITIES ACTIONS TO CLOSE MARIJUANA BUSINESSES

Proposition 64, the Adult Use of Marijuana Act, states that the licensing of marijuana businesses is a matter of “statewide concern”.  Cities, by law (the California Constitution), are authorized to adopt and enforce regulations which deal with “municipal affairs”.  When cities regulate matters of “statewide concern”, the law (Constitution) requires that the city consider the regional impacts of its regulations.

We have now filed lawsuits against approximately 20 cities in Southern California alleging that their zoning regulations either do not address commercial (non-medical) marijuana businesses or their regulations do not consider the regional impacts as required by Proposition 64 identifying the licensing of marijuana businesses to be a matter of statewide concern.

As you probably know, I am a former city planning director and city manager as well as being an attorney. 

We are seeing a lot of cities not want to go to court over these marijuana businesses.  Instead the cities are now putting more pressure on the landlords and the Building and Safety Department of the cities are either “red-tagging” (closing down the marijuana business for alleged building and safety violations) or the city building and safety departments are simply ordering that the electrical service be disconnected.  Both of these tactics are, of course, an “abuse of discretion” by the city officials if in fact the alleged building code violations do not exist.  If the building code violations exist, the city building official must issue the licenses to our contractors so that these problems can be fixed. 

We are now filing actions (Petitions for Writ of Mandate) against city building officials who have “red-tagged” the marijuana business building and refuse to issue the building permits for the corrections and/or have ordered that the electrical service be disconnected without a showing of an imminent threat to the public safety.  We are also defending our marijuana business clients against the eviction lawsuits being filed by the landlords.

If you want more information on how we are representing our marijuana business clients, please call or email me.

PROPOSITION 64 – OUR LAWSUIT AGAINST THE CITY OF ANAHEIM

PROPOSITION 64 – OUR LAWSUIT AGAINST THE CITY OF ANAHEIM

We have filed several Proposition 64 lawsuits against the City of Anaheim.  These lawsuits were filed because the City of Anaheim was using its medical marijuana laws to try to close down marijuana businesses which we allege and argue are operating under Proposition 64, The Adult Use of Marijuana Act (AUMA).  I have been asked how a marijuana business can operate under Proposition 64 since the state licenses for the commercial (non-medical) marijuana businesses have not yet been issued by the state.  Here is the answer.  Under AUMA the state licenses make the marijuana businesses legal under state law.  A permit or license under AUMA does not change the requirements of AUMA that Cities (and Counties) adopt regulations for commercial (non-medical) marijuana businesses if the City (or County) intends to regulate marijuana businesses under Proposition 64.  After we filed the lawsuits against the City of Anaheim the City Council then adopted new regulations for the Proposition 64, commercial (non-medical) marijuana businesses.  We are now, in court, claiming grandfather status for these marijuana businesses which filed their lawsuits before the City changed its regulations.  I expect that in the next few months many other Cities will also adopt Proposition 64 marijuana regulations.  We expect to be filing quite a few additional Proposition 64 lawsuits in other Cities in California before the regulations are changed for the same reason, to argue that we have grandfather status.   If you have any questions about how we are handling the Proposition 64 lawsuits give us a call or send us an email.