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? 

-  “The basic tool for the manipulation of reality is the manipulation of words. If you can control the meaning of words, you can control the people who must use them.” Philip K. Dick

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 farmworkers 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 farmworkers 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. Discloser, 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.  

 

Eureka Butane Ordinance

Posted by Lacy Fletcher on Tuesday, December 20, 2016 Under: Eureka Butane

The Eureka City Council banned certain types of butane sales , exempting processors who obtain state and local cannabis licenses along with certain types of contractors. Butane sellers in Eureka's city limits will need to keep sales records with names and addresses of those who buy BHO,.

Eureka, California Butane Restrictions Ordinance

BILL NO. 927-C.S.

ORDINANCE NO.       -C.S. 

AN ORDINANCE OF THE CITY OF EUREKA ADDING SECTION 92.10 TO TITLE IX CHAPTER 92 -- RESTRICTIONS ON BUTANE SALES

Be It Ordained By The Council Of The City Of Eureka As Follows:

Section 1.

The following section is hereby added to Title IX, Chapter 92:

section 92.10 Title IX Chapter 92 - RESTRICTIONS ON BUTANE SALES 

§92.10 REGULATION OF THE SALE, PURCHASE, AND POSSESSION OF BUTANE. 

 

1.         FINDINGS AND PURPOSE. 

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 of 5x and higher.  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. 

That the use of refined butane 5x or higher is done to dissolve the 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 of 5x or higher 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. 

A honey lab using 5x refine butane and higher 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.

That the resale of refined butane 5x and higher occurs at levels that are only relevant to the manufacture of honey oil.  That such sales and possession of butane should be regulated to prevent the use of butane in the manufacture of honey oil where such activity presents grave dangers and adverse health risks to the occupants of the City of Eureka and the first responders therein. 

1.         DEFINITIONS.

For the purpose of this chapter the following definitions apply:

1.         “Butane” means iso-butane, n-butane, and butane of power 5x or greater.

1.         “Canister” means a single butane canister of a storage quantity of 300 ml (10.6 ounces).

1.         "Code" means the Eureka Municipal Code.

1.         "Count" means the number of canisters of refined butane.

1.         "Customer" means any person who is sold or acquires during a transaction products from any retail store.

1.         "Day" means calendar day.

1.         “Package” means butane offered for sale at quantities of two or more.

1.         "Person" means a corporation, co-partnership, or association as well as a natural person.

1.         "Retailer or Reseller" means any business, company, corporation, person, employee or associate selling products to any customer within the City of Eureka.  It does not include any wholesaler engaged in a wholesale transaction.

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

1.         “Tank” means a cylinder designed to hold compressed gas of a quantity greater than 600 ml.

1.         "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.

1.         “Vendor” means any person who is engaged in the wholesale or retail/resale sale of “refined butane,” as that term is defined herein.

1.         “Wholesaler” means any business, company, corporation, or person whose business is the selling of goods in gross to Retailers for the purposes of resale.

1.         UNLAWFUL SALE, PURCHASE, AND HANDLING OF BUTANE.

1.         It is unlawful for any Retailer, Reseller or person to sell to a customer any number of butane canisters or tanks that exceed a combined total storage quantity of 600 ml of butane during a single transaction.

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

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

1.         TRACKING OF BUTANE SALE AND RECORDS RETENTION.

Every Vendor shall do all of the following:

1.         Store refined 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

1.         Limit the quantity of refined butane that may be purchased by a person within a calendar month to no more than 600 ml; and

1.         Sell refined butane only to persons 18 years of age or older; and

1.         Require any person who wishes to purchase refined 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

1.         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 sale of sale:    

1.         The full name and residence address of the purchaser, as obtained from identification described in (D)(4);

2.         The date and time of the sale;

3.         The brand and amount of refined 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.

1.         The Vendor shall provide the record of sales information as described in Section 5 above upon request of the City of Eureka or its authorized representative or agent.

1.         ENFORCEMENT AND PENALTY.

1.         Each act in violation of this Code is a violation of Section 10.99 of the Eureka Municipal Code and shall constitute a separate offense. A violation of this section is punishable as a misdemeanor or infraction, chargeable at the City Attorney's discretion.

1.         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.

1.         Any immediately dangerous condition as defined in EMC § 150.152 may be summarily abated in accordance with EMC § 150.153.  Actions taken to abate the immediately dangerous conditions may include, but are not limited to, repair or removal of the condition creating the danger and/or the restriction from use of occupancy of the property on which the dangerous condition exists, or any other abatement action determined by the Chief Building Official to be necessary.  In the event use or occupancy is restricted, the owner, operator or manager shall discontinue said use immediately.

1.         If, in attempting to obtain compliance with subsection (3) above, the Chief Building Official  is denied entry to the property by its owner, operator, or manager, the Chief Building Official may, pursuant to California Code of Civil Procedure §§ 1822.50 through 1822.60, seek an inspection and abatement warrant from the Superior Court.

1.         Costs for any abatement performed by, or on behalf of the City, including the cost of police and fire services provided, relocation of occupants of the property, and any other administrative costs, shall be recoverable by the City by the methods given in EMC §§ 150.183 through 150.190.

(6   In any action, administrative proceeding or special proceeding to abate a nuisance in which the City elects, at the initiation of the action or proceeding, to seek recovery of its attorneys' fees, the prevailing party in the action or proceeding shall recover its attorneys' fees incurred in the action or proceeding.  In no action, administrative proceeding or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the City in the action or proceeding. “Prevailing party” shall not include a party who complies with a notice of violation issued by the City or an order in any action, administrative proceeding or special proceeding. Attorney fees shall include fees for the services of the City Attorney or her or his assistant and deputies, calculated based on the effective hourly rate of such attorney. Ref. Government Code § 38773.5.

1.         EXEMPTIONS.

1.         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 (C) (1), (2) or (3) 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.         That the person’s license is in good standing with the California State Contractors License Board; and

4.         The person, or company to 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.

1.         A person possessing a valid volatile manufacturing license issued by both the State of California and the City of Eureka.

1.         SEVERABILITY.

The provisions of this section are declared to be separate and severable.  The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this section, or the invalidity of the application thereof to any person or circumstance shall not affect the validity of the remainder of this section, or the validity of its application to other persons or circumstances. 

1.         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 Code or State or Federal law.

In : Eureka Butane 


Tags: eureka butane  cannabis licenses  city council  thc. tracking 

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