Fred Fletcher, September 15, 2019

Farewell to Humboldt

My family and I are relocating to Oregon although an office will be maintained in Eureka for awhile. We moved to Humboldt with hopes of helping to improve the community, and learned billions of dollars of cash floating around a rural county unleashes a distopia: "a place where the condition of life is extremely bad, as from deprivation, oppression, or terror."  Humboldt is full of wonderful individuals who are intimidated, uninformed, or tired of trying. Humboldt's golden age was when people did not inhabit her, and so we leave Humboldt. Please destroy English Ivy wherever you see her. 

August 18, 2019

Fred Fletcher 

Is Latin a Dead Language in Humboldt?

Latin is still used to describe legal doctrines. 

  • "Defacto" means "in fact"
  • "Ex parte" means "by one party"
  • "Fiat" means "let it be done"
  • "De novo" means "anew"

The term "de novo" is commonly used to describe the right to a new trial of an administrative hearing officer's decision if appealed. This is an important right that can effect disability payments, permit and license revocations, and property rights.  Without the right to a traditional "de novo" review of an administrative hearing officer's decision property and civil rights are at risk. An administrative hearing officer is someone the Government pays to determine the rights of its residents. Sometimes these hearing officers are unqualified, bias, or conflicted so California law allows their decisions to be reviewed by judges "de novo" or "anew."

Two Humboldt Superior Court Judges Kelly Neel, and Gregory Elvine-Kreis have determined the term "de novo" means the exact opposite of it's Latin origin. Both judges have held that a "de novo" review of an administrative hearing officer's decision is limited to the record at the administrative hearing meaning the review is not "anew" but is the opposite.  Our judges have decided nothing "anew" is allowed to be presented on appeal to challenge the hearing officer's decision. This is an astonishing holding (postmodernism?) which appears to contravene the findings of every other Judge in the State who has pondered the issue.  Will the Court of appeals agree with our Humboldt Court by turning Latin on it's head and disposing of due process? 


Fred Fletcher

July 15, 2019

Supreme Court Resurrects Property Rights from the Grave

Knick v. Township of Scott, Pennsylvania, No. 17-647, 588 U.S. ___ (2019)

Ms. Knick bought 90-acres of land in 1970 in Pennsylvania.  In 2008, rumors started to circulate a dead body was buried on her land. A relative of the dead body convinced (probably bought) the City Counsel to designate the land as a cemetery which forced Ms. Knick to allow visitors on her land. Ms. Knick sued in State court where her case was dismissed because the City had not filed an enforcement action against her. 

Ms. Knick petitioned the US Supreme Court to overturn a catch-22 for property owners. She claimed the City turning her property into a cemetery was an illegal taking (without just compensation) under the 5th amendment. Prior to this decision property owners were barred from seeking relief in Federal Court until they had sued and appealed all the way to the State Supreme Court. 

The US Supreme Court overturned this rule and now property owners can sue directly in Federal Court when a locality takes property without just compensation. This decision may bring an end to our local bureaucracy. 

Humboldt Planning and Building Department, Director John Ford on bottom right

Eureka Public Transit System

I've been grounded from driving since Mother's day due to a medical condition giving me an opportunity to review Eureka's public transit system.  On average public transit in Eureka is as fast as walking. 

California Proposes Reducing Cannabis Taxes to Fight Illicit Market 

Assembly Bill 286, dubbed the Temporary Cannabis Tax Reduction bill, would temporarily cut state excise taxes for legal marijuana retailers from 15 percent to 11 percent and also suspend cultivation taxes altogether through 2022.  The proposed legislation, which is sponsored by state Treasurer Fiona Ma.  “The whole aim of legalization is to compete with the illicit market and to get people to buy from the regulated establishments,” he said. “You can’t do that if the taxes are so high and onerous that people are driven out of that market.”

This is at odds with the taxing scheme in Humboldt were the black market is estimated to be 1,500% larger than the white market.  Yesterday, the Court refused to dismiss the Measure S lawsuit attorney Eugene Denson and I filed. The lawsuit seeks to return the tax to a crop tax as approved by the voters. The suit challenges the constitutionality of an amendment our county supervisors made to impose the tax whether or not plants are grown. 

Fred Fletcher

January 29, 2019

Human Rights Update

Judge, Haywood S. Gilliam Jr. of the US District Court in Oakland, on Sunday granted a request by more than a dozen states to temporarily block the Trump administration from putting into effect new rules that would make it easier for employers to deny women health insurance coverage for contraceptives. 

Saul Loeb/AFP/Getty Images

New Laws in California for 2019

Farm Employee Overtime

In 2016, California became the first state in the U.S. to require employers to pay overtime for farm workers who work more than eight hours. The first phase of the new rules will begin in January, when agricultural employees will earn overtime after working 9 1/2 hours in a day or 55 hours in a week. Currently, California farm-workers can get overtime after working 60 hours in a week or 10 hours in a day.  The change only applies to businesses that employ at least 26 people. The rules do not apply to smaller agricultural employers until 2022. Our office consults with agricultural employers on compliance matters and we represent employees on wage and labor claims. Aside from wage and hour claims, sexual harassment and discrimination are constant concerns on the farm. 

Street Vendor Permits

A law going into effect in January will allow local governments to design permit programs for vendors and limits when they can be criminally prosecuted. It pertains to anyone selling food or other merchandise from a pushcart, stand or “non-motorized conveyance.” I anticipate the City of Eureka will embrace this new law and its economic benefits. I predict the County will ignore this law until the County is forced to follow it by a judge.  

Home Kitchen Businesses

A new law encourages Counties (like Humboldt) to permit home kitchens for the purpose of selling food products. California Assembly member Eduardo Garcia, who authored the bill, says that homemade food sales are a vital part of self-reliant communities. “Legitimizing these home businesses will offer a means of economic empowerment and pathways for many to achieve the ‘American dream,’” Garcia said when the bill was signed. Humboldt historically resists new opportunities which provide residents access to residual income. Perhaps after the County Supervisors election in 2020 progress will be made on this front.  

Fred Fletcher

January 17, 2019

The Measure S Lawsuit

Measure S is the cannabis cultivation tax the voters passed. We are challenging the County Supervisor's decision to amend Measure S as passed by the voters. The Supervisors amended the tax to apply to the property owner, not the farmer, and regardless of whether any crop is grown.  

Yesterday, we filed our response to the County's demurrer to the Measure S lawsuit. (Set to be heard January 28, 2019.) The County hired a large Sacramento Firm (founded the year I was born) to defend the lawsuit. They argue it's impossible to tax farmers for the actual crop grown because the County can't verify how much was grown. We informed the Court, governments since the beginning of governments have taxed farmers for crops actually grown, and we cited the Book of Genesis as our evidence.  

The amendments by the Supervisors have been misreported. The Supervisors amended Measure S to tax the permitted area regardless of the amount of crop grown.  As such, the supervisors have amended the tax to be assessed against fallow land, without regard to crop grown. We provided the Court authority that Measure S as amended is a property tax and is unconstitutional. We ask the Court to return Measure S to its original state which acted as an excise tax on legal crop actually grown. 

We will update this one. 

Fred Fletcher

January 15, 2019

County Supervisor's Can't Silence Critics, including Humboldt's Supervisors. 

In a 3-0 decision, the 4th U.S. Circuit Court of Appeals said Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated the First Amendment free speech rights of Brian Davison by banning him for 12 hours from her “Chair Phyllis J. Randall” facebook page.

Last election my office received a few complaints from citizens who were censored for making comments critical of politicians, on the left and right (somehow our local politics are becoming politically polarized). Now these citizens may have recourse. This First Amendment decision could impact local elections nationwide by allowing the public to be heard.    

Fred Fletcher

January 8, 2019

Update on Nation v Trump filed in the 9th Circuit

This lawsuit challenges HUD's rule which forces subsidized apartments to evict medical cannabis users. Plaintiff was evicted from her HUD apartment on July 10, 2018 when a maintenance man discovered some medical cannabis in her bedroom. She remains homeless and is not alone.

The lawsuit not only challenges HUD's rule but relies upon Murphy v NCAA (decided May 2018) to challenge the constitutionality of the Controlled Substance Act itself relative to medical marijuana in the State of California. The Supreme Court in Murphy v NCAA resurrected from near death the anti-commandeering doctrine, which in laymen's terms means the Congress cannot make orders directly to the States. 

We are optimistic this lawsuit will prevail. If the District Court issues an order in our favor appealing the decision would pose a political pitfall for the Trump administration. 

I will update this one.

January 3, 2019

Fred Fletcher 

Update on Volkswagen Diesel Fraud Case

We filed an action in Butte County on May 17, 2018 with the intent of having a jury decide punitive damages. We would be the first party to bring the defeat device case to jury trial.  Peer reviewed studies proved thousands of people with lung diseases died from the fraud.  


Arcata Butane Ordinance

Posted by DeLacy on Saturday, January 21, 2017 Under: Arcata


The City Council of the City of Arcata does ordain as follows:

Section 1: Title III (Public Safety), Chapter 4 (Regulation of the Sale, Purchase, and Possession of Butane), Sections 3840-3846, is hereby added to the Arcata Municipal Code as follows:

TITLE III: Public Safety CHAPTER 4: Regulation of the Sale, Purchase, and Possession of Butane SEC. 3840. Findings and Purpose. The Council hereby finds as follows:

1. The northern region of our State has experienced a recent increase in explosions caused from the manufacture of honey oil (also known as hash oil) in clandestine labs using refined butane. These incidents have caused considerable property damage, personal injury and even incidents of death to those participating in the manufacturing process, and to innocent bystanders.

2. The type of butane used to make honey oil is commonly described on the canister in which it is sold as “refined,” “pure,” “purified,” “premium” and/or “filtered.”

3. Refined butane is used for the purpose of dissolving tetrahydrocannabinol (THC) resin, which concentrates into a liquid/oil form as a result of the butane’s stripping process. The stripping of the THC through use of refined butane causes flammable butane vapors to accumulate low to the ground and remain exposed to ignition sources. Studies suggest that 99.5 percent of the extracted THC butane mixture will volatilize into the immediate area and remain in a form that is odorless and latent to the human eye and only detected through a combustible gas instrument.

4. A honey lab using refined butane presents a serious hazard for first responders as the gas has no odor and can only be detected by a combustible gas instrument. Such conditions present a grave risk of loss where devices typically deployed by first responders are capable of igniting the gas resulting in an explosion.

5. There are many legitimate uses of butane, for example, camping stoves, small kitchen and craft appliances, and cigarette lighters. However, the sale and possession of refined butane in quantities associated with the manufacture of honey oil presents grave dangers and adverse health risks to the occupants of the City of Arcata and the first responders and should be regulated.

SEC. 3841. Definitions. Unless a provision explicitly states otherwise, the following terms and phrases as used in this Chapter are defined as follows:

A. “Butane” means iso-butane, n-butane, and butane contained in a canister, tank or cylinder labeled with any or all of the following words used to describe the butane contents: “refined,” “pure,” “purified,” “premium,” “filtered” and/or power 5x or greater.

B. “Customer” means any Person who purchases or acquires, or who seeks to purchase or acquire, during a Transaction products from any retail store.

C. “Person” means a corporation, co-partnership, or association as well as a natural person.

D. “Retailer or Reseller” means any business, company, corporation, Person, employee or associate selling products to any customer within the City of Arcata. It does not include any Wholesaler engaged in a wholesale Transaction.

E. “Sell” means to furnish, give away, exchange, transfer, deliver, surrender, distribute or supply, whether for monetary gain or other consideration.

F. “Transaction” means a purchase, sale, trade, loan, pledge, investment, gift, transfer, transmission, delivery, deposit, withdrawal, payment, exchange of currency, extension of credit, purchase or sale of any monetary instrument, or an electronic, magnetic or manual transfer between accounts or any other acquisition or disposition of property by whatever means effected.

G. “Vendor” means any Person who is engaged in the wholesale or retail/resale sale of “Butane,” as that term is defined herein. H. “Wholesaler” means any business, company, corporation, or Person whose business is the selling of goods in gross to Retailers for the purposes of resale.

SEC. 3842. Unlawful Sale, Purchase, and Handling of Butane.

A. It is unlawful for any Retailer, Reseller or Person to Sell to a Customer any number of Butane canisters, tanks or cylinders that exceed a combined total storage quantity of 600 ml of Butane during a single Transaction.

B. It is unlawful for any Person that is not a Vendor (Wholesaler or Retailer/Reseller) to have in their possession, custody or control any number of Butane canisters, tanks or cylinders that exceed a combined total storage quantity of 600 ml of Butane at any one time.

C. It is unlawful for any Customer of a Retailer or Reseller to purchase or acquire per calendar month any number of Butane canisters, tanks or cylinders that exceed a combined total storage quantity of 600 ml of Butane, whether sold individually or by the package.

SEC. 3843. Tracking of Butane Sales and Records Retention.

Every Vendor shall do all of the following:

A. Store Butane, or cause it to be stored, in a manner that makes it inaccessible without employee assistance to the public in the regular course of business pending legal sale or disposition; and

B. Limit the quantity of Butane that may be purchased by a Person within a calendar month to no more than 600 ml; and

C. Sell Butane only to Persons 18 years of age or older; and

D. Require any Person who wishes to purchase Butane to present a valid driver’s license or other form of government-issued identification bearing the prospective purchaser’s photograph, date of birth, and current residence address; and

E. Record the following information in connection with each sale of Butane and maintain on the premises of the Vendor for a period of not less than two (2) years from the date of sale:

1. The full name and residence address of the purchaser, as obtained from identification described in Section 3483.D;

2. The date and time of the sale;

3. The brand and amount of Butane sold;

4. The type of sale, i.e., retail or wholesale;

5. If a wholesale sale, the purchaser’s seller’s permit number as reflected on the resale certificate, if a resale certificate is taken from the purchaser pursuant to California Revenue and Taxation Code section 6091; and

6. The full name of the Person who processed the sale.

E. The Vendor shall provide the record of sales information as described in Section 3843.

F above upon request of the City of Arcata or its authorized representative or agent.

G. The Vendor shall post in a location conspicuous to potential Customers notice stating the sales restrictions required by this Section.

SEC. 3844. Enforcement and Penalty

A. Each act in violation of this Chapter shall constitute a separate offense and is punishable as a misdemeanor or infraction, chargeable at the City Attorney's discretion.

B. Allegation and evidence of a culpable mental state is not required for proof of an offense defined by this Chapter, except where expressly required by this chapter.

C. Any condition dangerous to human life, unsafe or detrimental to the public health or safety shall be subject to abatement in accordance with Title V, Chapter 5 of the Arcata

SEC. 3845. Exemptions.

A. A Person possessing a valid C-20, C-36 and/or C-38 Contractors License issued by the California Department of Consumer Affairs, Contractors State License Board shall not be in violation of this Code for possession or purchasing a quantity of Butane greater than the maximum amounts allowed under Section 3842 where all of the following are satisfied: 1. The C-20, C-36 and/or C-38 Contractors License, or a readable copy thereof, is carried on the Person during all times that the Butane is possessed by the contractor; 2. The Butane is used for the purpose of performing qualified tasks under the contractor’s license held by the Person carrying the Butane; 3. The contractor is in good standing with the California State Contractors License Board; and 4. The Person, or company with which he/she is employed and performing the contracting tasks under the C-20, C-36 and/or C-38 Contractors License, possesses a valid business license.

B. A Person possessing a valid volatile manufacturing license issued in compliance with State and City laws and regulations.

SEC. 3846. Cumulative Remedy. Nothing herein is intended to limit the City from pursuing any other remedy available at law or in equity against any Person or entity maintaining, committing, or causing a public nuisance or any other violation of the local, State or Federal law.

Section 3: Severability. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held to be invalid or unconstitutional, the decision shall not affect the validity of the remaining portions of the Chapter. The City Council hereby declares that it would have passed this Chapter, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid under law.

Section 4: This ordinance is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the CEQA Guidelines, because it can be seen with certainty that there is no possibility that regulating the sale of butane may have a significant effect on the environment.

Section 5: This ordinance will take effect thirty (30) days after the date of its adoption

In : Arcata 

Tags: arcata butane ordinance  arcata  butane  law  regutation  arcata butane ban  butane sales 


Nothing in this blog should be construed as legal advice. Warning may contain more opinions than facts.