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.  


SB 94

Posted by Lacy Fletcher on Monday, June 19, 2017 Under: SB 94
Bill  No: SB 94

DIGEST: This bill is the cannabis trailer bill for the Budget Act of 2017. This bill establishes a single system of administration for cannabis laws  in  California.  It contains changes related to the Budget Act of 2017 that are necessary for state licensing entities to implement a regulatory framework pursuant to the Medical Cannabis Regulation and Safety Act (MCRSA), established by AB 266 (Bonta, Chapter 689, Statutes  of 2015),  AB 243 (Wood, Chapter 688,  Statutes  of 2015), SB

643 (McGuire, Chapter 719, Statutes of 2015), and SB 837 (Committee on Budget and Fiscal Review, Chapter 32, Statutes of 2016), and the Adult Use of Marijuana Act (AUMA) of 2016 (Proposition 64).  This bill  conforms MCRSA and AUMA into a single system that prioritizing consumer safety, public safety and tax compliance. Among other things,  the bill  creates agricultural  cooperatives, a method for collecting  and remitting  taxes, a process for testing  and packaging,  and a process for collecting  data related  to driving  under  the influence.
Assembly Amendments delete the Senate version of the bill and insert the current language.

ANALYSIS: Specifically, this bill creates one regulatory system for commercial cannabis activity - the "Medicinal and Adult-Use Cannabis Regulation and Safety Act" – by doing the following:

1) General  provisions:

a) Technical Changes – Makes various changes throughout multiple code sections to replace references to “marijuana” with “cannabis” and delete code sections that are no longer required due to the integration of the medicinal  and adult use systems.

b) Definitions - Adds, amends, or deletes  multiple   definitions.

c) Bureau of Cannabis Control – Recasts the section creating the Bureau of Cannabis  Control (bureau)  within  the Department  of Consumer Affairs.

d) Emergency Regulation Authority - Deletes existing provision granting emergency regulation authority and adds a new one that also provides authority to re-adopt emergency regulations (one time),  specifies that adopted or re-adopted emergency regulations remain in effect for no more than 180 days.

2) Incorporates various  components of MCRSA, including:

a) Public Protection - Specifies that protection of the public shall be the highest  priority  for all  licensing authorities.

b) Property Owner Protection  - Provides protection for property owners who lease or rent  a property to a licensee  from asset forfeiture.

c) Patient Exemption - Specifies that a qualified patient that is not engaged in commercial activity is exempt from the licensure requirements of MCRSA. Applies  the same standards to a primary  caregiver.

d) Licensing - Clarifies that all commercial cannabis activity can only be conducted between licensees.

e) Distribution License Transportation Requirements – Requires that distribution drivers be directly employed by the licensee. Clarifies that all state laws and regulations governing commercial transport apply to those transporting cannabis  or cannabis products.

f) Retail Security Measures - Outlines  security measures for retailers  and requires notification to licensing authorities and local law enforcement when inventory  discrepancies  or criminal  activities  are found.

g) Testing Laboratories – Includes requirements for laboratories that were in MCRSA and are not in conflict with AUMA. These include: 1) use of a standard operating  procedure to  confirm or refute  bad results,  2) requiring the destruction of the  remains  of samples, 3)  notification  to  the bureau within one day of any change in accreditation, and 4) establishing a standard operating procedure for chain of custody controls for samples.
h) Cannabis Studyon Motor Skills - Requires the bureau to contract with the California Marijuana Research Program, known as the Center for Medicinal Cannabis Research, to develop a study that identifies the impact  of cannabis on motor skills.

i) Local Control - Clarifies that this division does not limit the authority or remedies of a city, county, or city and county under any provision of law, including,  Section 7 of Article  XI  of the California  Constitution.

j) Pesticide Intent Language – Adds the following intent language: The use of pesticides is  not adequately  regulated  due to the omissions in  federal law,  and cannabis cultivated in  California  for California  patients  can and often does contain pesticide residues. Lawful California medical cannabis growers and caregivers urge the Department of Pesticide Regulation to provide guidance, in absence of federal guidance, on whether the pesticides currently used at most cannabis cultivation sites are safe for use on cannabis intended for human  consumption.

3) Contains  additional  public  and consumer protection provisions, including:

a) Exit Packaging – Requires that all cannabis and cannabis products purchased by a consumer cannot leave a retail premises unless they are placed in  an opaque packaging.

b) Advertisement - Requires that a technology platform and outdoor advertising company ensure that a licensee include their license number on any advertisements.

c) Driving Underthe Influence of Drugs(DUID) Task Force - Creates a DUID Task Force with  a balanced  membership  to make  recommendations regarding prevention of impaired driving,  means  of identifying  impaired driving,  and responses to impaired  driving  that  reduce reoccurrence.

d) Open Container Standard - Creates a new infraction if a person has opened cannabis or cannabis products in the car. Creates an exemption  for a  qualified patient who is  carrying  either  a state medical identification  (ID) card or a physician’s  recommendation.

e) California Highway Patrol Funding - Appropriates $3 million to the California Highway Patrol (CHP) to be used to for training drug recognition experts. Program costs may include training, overtime, and backfill  of state and local law  enforcement  officers to attend  training.

f) Monopoly, Excessive Concentration – Maintains excessive concentration provisions of AUMA, applies the Cartwright Act, the Unfair Practices Act, and the Unfair Competition Law to all licensees. In addition, makes  it unlawful for any person to monopolize, or attempt to monopolize,  or  to combine or conspire with any person or persons, to monopolize any part of the trade or commerce related to cannabis. Gives the Attorney General the authority  to enforce these provisions.

g) Fire and Life Safety Standards – Adds a clarification that local fire officials retain  the authority  to carry out fire  and life  safety  requirements.

h) Quality Assurance and Compliance Monitoring - Creates  a quality assurance compliance monitor, employed by the bureau to conduct random quality control inspections and verify compliance with the packaging and labeling standards. The compliance monitor will also be responsible for independent tax verification.

i) Cannabis Destruction - Clarifies that only a peace officer can seizes and destroys cannabis.

j) Volatile Substance Definition - Codifies the definition of volatile substance included  in  recently  released  draft regulations.

k) Local Verification  Process  - Require  local jurisdictions  to provide the  bureau a copy of any ordinance or regulation related to commercial cannabis activity and a contact to serve as a liaison between the state licensing entities and the local jurisdiction. Outlines a process by which locals and the state licensing  authorities   will  communicate  regarding  an applicant  for licensure.

4) Enhances  Tax and  Cash Payment  Provisions, including:

a) Cultivation and Excise Taxes:

i) Creates a methodology to implement the two taxes imposed by  Proposition 64, the cultivation tax (9.35 per dry weight ounce for flowers and $2.75 for leaves)  and excise tax (15 percent of the sales   price).

ii) Clarifies that the cultivation tax shall be imposed when the cannabis or cannabis  products enter  the commercial marketplace.

iii) Requires the distributor to collect and remit  the cultivation  tax at the time  of distribution  and create a tax liability   for the excise tax at the same   time. The excise tax is due and payable 90-days after the transfer of the products.

iv) Allows the Board of Equalization (BOE) or its successor agency to determine  refund  policies  to ensure that there is  no overpayment of  tax.

v) The bill  does not change the incidence of tax and requires  that  BOE or its successor agency determine  the  actual tax.

b) Cash Collection – Establishes that by January 1, 2018, the Secretary of Business, Consumer Services, and Housing  or his  or her  designee  work with the Legislature,   the Department  of Consumer Affairs,  the Department  of Food and Agriculture (CDFA), the State Department  of Public Health,  and  any other related departments to ensure that there is a safe and viable way to collect cash payments for taxes and fees related to the regulation of cannabis activity  throughout the  state.

c) North Coast Office - Requires that by July 1, 2018, the bureau, in coordination with the Department of General Services, shall establish an office to collect fees and taxes in the County of Humboldt, County of Trinity, or County of Mendocino in order to ensure the safe payment and collection of cash for licenses  and taxes  in  those counties.

5) Environmental   clarifications  include:

a) License Conditions - Clarifies that cultivation licenses issued by CDFA shall include conditions requested by the Department of Fish and Wildlife (DFW) and  the State Water Resources Control Board (SWRCB).

b) Adverse Impacts - Specifies that if  DFW or the SWRCBfinds that  cultivation  is  causing significant  adverse impacts in  a watershed,  CDFA shall not issue new cultivation licenses or increase the total number of plant identifiers  in  that watershed.

c) Denial of License – Specifies that licensing entities can deny an application for a licensure or renewal for failure or inability to meet environmental requirements.

6) Makes  various  other changes, including:

a) Advisory Committee - Specifies that the advisory committee members must include  persons who work directly  with  racially,  ethnically,  and economically  diverse populations.

b) Appeals Panel Membership - Adds two members to the Cannabis Control Appeals Panel; one appointee each from the Senate Committee on Rules and the Speaker of the Assembly. They are in addition to three Governor’s appointees  that are  subject to Senate confirmation.

c) Cannabis Cooperatives – Specifies that certain license types may pool their resources for cannabis farming of no more than four acres total and all members of the association must be disclosed to the licensing agencies. Specifically, the cooperatives must include  three or more members (that  have not been licensed to operate a cannabis business in another state or country) and  form an association for the purpose of:

i) The cultivation, marketing, or selling of the cannabis products of its members.

ii) The growing, harvesting, curing, drying, trimming, packing, grading, storing, or handling  of any product of its  members.
iii) The manufacturing, selling, or supplying to its members of machinery, equipment,  or supplies.

d) Organics and Appellations Standards – Requires by 2021,  CDFA to develop a California  organic  designation  for cannabis  and  include  standards, practices and varietals  as part of their  appellations  program.

e) Non-Storefront Delivery - Specifies that a retailer shall have a licensed  premises which is a physical location, but, that it may be closed to the public and that they can conduct sales exclusively  by  delivery.

f) Diversifies Mutual Fund and Blind Trust - Allows “blind” investors to have financial  interest  without  requiring  background checks.

g) Co-Location and the Definition of Premises - Allows for the co-location of medicinal and adult use cannabis businesses, although, requires  that a licensee obtain separate licenses for each type of business. Codifies the definition of premises used in recently released draft medicinal cannabis regulations.

h) Product Testing - Authorizes a licensed cannabis operator with an in-house (non-licensed) testing laboratory to provide testing of cannabis and cannabis products obtained from third party cannabis cultivators  and manufacturers prior to those products being sent to a licensed testing laboratory pursuant to this  division  for final,  presale quality  assurance. Requires testing to of samples to be performed on the final form in which cannabis or cannabis product will  be consumed or used.

i) Temporary Event License - Authorizes the bureau to issue a state temporary event  license  at a county fair  or district  agricultural  association, where people 21 years of age or older could sample cannabis and cannabis   products. Temporary event licenses shall only be issued in local jurisdictions that  authorize  such events.

j) State Medical ID Card - Preserves the  State Medical  Cannabis  ID card.

k) Destruction of Product - Specifies individuals engaging in activity without a license  are responsible for the  cost of destroying product.

l) Temporary Licenses - Adds section allowing   licensing  entities  to issue temporary licenses if specific requirements are met (including local approval, fee), valid  for 120 days with  a possible 90  extension.

In : SB 94 

Tags: sb 94  mcrsa  auma  mcrsa  mcguire  wood  cannabis  marijuana 


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