Tuesday, June 10, 2014

The Future of Medical Marijuana Dispensaries in Santa Ana

The future of Santa Ana's bustling medical marijuana industry hangs in the balance, as activists and local leaders grapple with the city's proliferation of storefront dispensaries.  

As of today, nearly 50 active pot shops operate within Santa Ana, mostly concentrated around "the green mile" -- 17th Street, between Grand & the 55 Freeway.  That number has fluctuated wildly over the past couple years, due largely to inconsistent enforcement and market forces.  

Santa Ana imposed an official ban on storefront dispensaries in 2007.  Since that time, enforcement actions have shuttered 177 collectives.  Despite the city's efforts, though, clubs are often operating again within days.  

The high turn-over in "fly-by-night" pot shops has frustrated observers on both sides of the debate. City leaders and code enforcement officials complain that, despite their best efforts, the lure of quick money attracts new dispensaries faster than law enforcement can shut them down.  Seriously ill patients complain about the safety, security and lack of regulation at "less-than-legitimate" collectives.  

We all agree that the current status of medical marijuana in Santa Ana is not sustainable.  Only a clear, concise set of reasonable regulations will bring some order to Santa Ana's green mile. Residents need assurances that the pot shops in their backyards aren't attracting crime or degrading the quality of life in their neighborhoods.  Patients need a safe, affordable and reliable source for their medicine.  

Medical marijuana activists have gathered enough signatures to qualify a ballot initiative for the November election.  If approved by voters, The "Medical Cannabis Restriction and Limitation Initiative" would establish a process for collectives to register with the city and to pay a 2% sales tax.  It would prohibit loitering and smoking on the premises and would restrict areas where pot shops could operate. Kandice Hawes, president of OC NORML, says, "We feel that people do want medical marijuana collectives.  They want them to be controlled and safe, and they want the participation of the city and the police departments."

The City Counsel is now debating whether or not to place its own, competing measure on the ballot.  The city's proposal would impose a 5% tax and would cap the total number of licensed shops at 8.

If we've learned anything from our country's failed social experiment called "prohibition", it should be that the government cannot simply make something go away by making it illegal.  The market forces of supply and demand are far more powerful than any local code enforcement agency. Driving the market underground causes more problems than it solves.  When the product is outlawed, the government turns its citizens into outlaws.  I understand and support the city's need for comprehensive, effective regulation of this emerging industry.  Residents should feel secure in their homes, without excessive traffic, loitering and other nuisance behavior.  The Counsel's proposed ordinance could be counterproductive, though, if it overtaxes marijuana or places an artificial cap on the number of shops that are permitted to operate within the city.  Let the market decide how many shops will operate.  If dispensaries are overly restricted and taxed, prices are likely to climb and many consumers will turn back to the black market.

Unlike the Counsel's proposed ordinance, the Medical Cannabis Restriction and Limitation Initiative (or MCRLI) sounds like an effective way to address the community's concerns while ensuring that qualified patients have safe and convenient access to their medicine.  It will protect children, generate revenue for the city without imposing burdensome taxes, and reduce the harmful impact that some collectives have had on their surrounding neighborhoods.

This November, vote to save medical marijuana in Santa Ana. Vote "yes" on the Medical Cannabis Restriction and Limitation Initiative.  If the Counsel votes to place its own, competing measure on the ballot, tell them to butt out and let the free market do what it does best.

Disagree?  Let me know in the comments section, below.

Thank for reading.  

Monday, June 2, 2014

Appearing in Court on Catalina Island (Avalon Courthouse)

Save yourself the time, hassle and expense of traveling back to the island for a court appearance -- Have an experienced, knowledgeable, local attorney do it for you.

Catalina Island, located approximately 22 miles off the coast of Orange County and Los Angeles, California, is home to a small, one-room courthouse.  The courthouse is open on alternating Fridays.  It generally hears only misdemeanor criminal cases and infractions (minor traffic matters, etc.).  Felony cases and more serious matters are usually sent to Long Beach.

The City of Avalon, nestled on the southeast corner of the island, is only home to about 2,200 full-time residents, but the population swells between the months of April and September.  Tourists, fishermen, divers, hikers, families, boaters and adventure-seekers descend upon the community to enjoy the island's temperate climate and unspoiled, scenic beauty.  Each fall, the town of Two Harbors also hosts its Buccaneers Weekend pirate party, a legendary festival that marks both the unofficial end of tourist season on the island and the official beginning of lobster season statewide.

Catalina and its surrounding waters are home to world-famous fishing and diving.  It also hosts several marine reserves and designated "conservation areas".  These areas aren't always clearly marked, but fishing within one of these areas will result in heavy fines and possible forfeiture of any gear used.  Many visitors are surprised to learn that they've accidentally strayed into a protected area.  They're equally surprised when Fish & Wildlife agents show up, cite them, and confiscate their valuable fishing equipment.  Remember, it is the individual fisherman's responsibility to know and comply with all local laws and regulations.  Ignorance is no defense to the crime of fishing within a protected area.  Out-of-state visitors are also responsible for correctly identifying their catches and complying with local rules regarding limits, allowable sized fish, season restrictions, etc. California fishing laws are no joke.  As mentioned above, they often carry stiff penalties that may include high fines, jail time, probation, forfeiture of your equipment and an embarrassing blemish on your criminal record.

If you've been arrested or cited while visiting Catalina Island, a quality, local attorney can guide you through the process to ensure that your rights are preserved and that you walk away with the best resolution possible.  Our professional staff will work with you, the court and prosecutors to negotiate a fair disposition to your case.  Our goal is always to make the process as painless and stress-free as possible for you.

Our firm has extensive experience in defending against all types of criminal issues that arise on Catalina Island -- Avalon, Two Harbors, and everywhere in between.  The most common issues we see on the island include DUI (driving a car, a boat or a golf cart under the influence), domestic violence, assault / battery, disturbing the peace, being drunk in public, possession of drugs or paraphernalia, and various fishing violations.  We can often make your appearances for you, without you having to be personally present in court.  Save yourself the time, hassle and expense of traveling back to the island for a court appearance -- have a local attorney do it for you.

We're familiar with the local judge, court staff and prosecutors.  We know "how the game is played" on Catalina Island and we typically get fantastic results for our clients.  Of course, each case is unique. Past performance is no guarantee of future success.  The results of your case will depend upon its specific facts and your criminal history.

You have a choice in hiring a lawyer.  Many attorneys serve the Avalon courthouse and most of them tout their local knowledge and experience, but I actually know the difference between a Canary Rockfish and a Vermilion Rockfish.

If you have questions about appearing in court on Catalina Island, call our office for a free consultation.  (714) 505-2468.  Thanks for reading. 

Wednesday, May 7, 2014

Update on Medical Marijuana in California

A Los Angeles appellate court handed down a decision last week that could dramatically change the way that dispensaries conduct business in the state.  If you operate or grow for a collective, you must be aware of the new rules (or new interpretation of the old rules).  

California law allows qualified patients to form non-profit organizations for the purpose of cultivating and distributing marijuana among themselves.  The authors of the law envisioned a group of patients who would pool their resources and designate one member of the group to cultivate all of the medicine for the entire club.  Members of the club would then compensate the club for the value of the medicine that each member consumed, and the club would compensate the grower for his expenses, plus the value of his time, labor and skill.  Money may change hands during these transactions, but clubs were -- and are -- prohibited from acting on a for-profit basis.  

Defendant in this case, Brian Mitchell, was the designated grower for a collective in Los Angeles. He was a member of the club and had proper documentation to prove that he was both a qualified patient and a duly-designated cultivator.  Mr. Mitchell established his own corporation, Herbmetics, Inc., for the purpose of cultivating medical marijuana on behalf of the club.  He obtained seller's permits in his own name from the state Board of Equalization and paid taxes as required.  

Mr. Mitchell was arrested and convicted for illegally cultivating marijuana in state court.  At trial, it was determined that the club to which he provided his cannabis, "Keeping It Medical", was improperly organized as a for-profit corporation.  Since K.I.M. operated for profit, a judge ruled that Mr. Mitchell was not entitled to rely upon the limited immunity provided under California's medical marijuana laws.  He was convicted, and a court of appeals recently affirmed the conviction.  

The court did a very poor job of explaining their reasoning in this case.  I've read the opinion, and I'm still not clear on what the judges determined to be the deciding factor.  I spotted several issues where the judges seemed to focus their attention, but they never gave any indication as to what they found most compelling -- or how someone might avoid those pitfalls in the future.  Here are some of the factors that I think steered the court's judgement:

-The fact that the club itself, "Keeping It Medical", was organized as a for-profit corporation (rather than a cooperative, a collective, or a not-for-profit mutual benefit corporation).  Since California's medical marijuana laws allow patients to collectively cultivate marijuana on a not-for-profit basis, the court found that individuals or clubs who operate on a for-profit basis may not avail themselves of the limited immunity provided under HS 11362.775, even though the defendant was a member / vendor and not the owner or operator of K.I.M.

-The fact that Mr. Mitchell formed his own corporation, Herbmatics, Inc., and sold his product to ANOTHER corporation, K.I.M.  The law doesn't say anything about this type of arrangement, but courts and law enforcement agencies frown upon dealers who sell outside of their own non-profit organization.  According to the California Attorney General's interpretation of the law, medical marijuana clubs may cultivate their OWN cannabis, but they should not buy or sell medicine outside of their own closed-loop distribution network.  Again, the law is silent here, but medical marijuana entrepreneurs who grow under one corporate name and sell to another corporation will enjoy fewer legal protections than clubs that maintain ownership of their own plants from seed to flower.  

-The fact that the Mr. Mitchell's written agreements with K.I.M. provided for a set annual salary, regardless of his costs or the quantity of cannabis that he provided to the club.  As discussed above, money may change hands during these types of transactions, but parties must be able to demonstrate that the costs of the marijuana are reasonably related to the grower's expenses.  If the grower is making significant income but cannot prove the value of his costs and labor, he's going to have a hard time defending himself in court.  

Expect this case to work its way up to the State Supreme Court, where the rules are likely to get flipped on their heads again.  Until we get a more coherent set of laws on the subject, more people like Mr. Mitchell are likely to end up behind bars for activities that they honestly believed were protected under the law.  

Speaking of....

California might soon get a more coherent set of medical marijuana laws!  The State Senate Health Committee recently approved SB 1262, a proposed set of regulations to govern medical marijuana here in California.  The new regulations had been opposed by CA NORML, which was primarily concerned with some provisions that would have limited the ability of doctors to recommend marijuana to their patients.  After those provisions were dropped from the bill, CA NORML Director Dale Gieringer declared that it "was on the right track".  

If passed by the full Senate and State Assembly, the bill will require doctors who recommend marijuana to also discuss possible side effects of the drug with their patients.  They would also be responsible for conducting appropriate examinations and follow-up consultations with patients.  It would impose penalties for doctors who fail to properly examine patients before recommending marijuana.  

The bill will explicitly allow cities and counties to restrict or prohibit marijuana dispensaries within their borders.  It will establish systems for licensing cultivation sites and for assuring quality and purity of cannabis sold at dispensaries.  The law will also require dispensaries to adopt certain security measures to prevent thefts.  

Medical marijuana advocates believe that the regulations are valuable to clarify the legal protections for growers, transporters, dispensary operators and others involved in this budding industry.  The federal government has also pledged to respect state marijuana laws where there is a "strong and effective" regulatory scheme in place.  Until now, however, California's regulatory scheme has been neither strong, nor effective.  This absence of clear guidance has exposed patients to federal raids. Hopefully, a clear and concise set of rules in California will help seriously ill patients access their medicine while reducing crime and the other harms associated with our great social experiment.  

If you have questions about medical marijuana in California, call The Law Offices of John W. Bussman for a free consultation.  (714) 505-2468.  Thanks for reading.  

Friday, March 28, 2014

How to Start a Legal Marijuana Dispensary in California

If you're interested in starting your own medical marijuana dispensary in California, you must first recognize the risks inherent in doing so.  Once you recognize the risks, you can work to mitigate them.  Put simply, there is no "safe" way to operate a dispensary.  By strictly complying with all applicable laws, regulations and guidelines, however, you can seriously reduce the chances that you will run afoul of the law.

Marijuana remains illegal federally, but the Obama administration has indicated that it will not seek to bust those individuals who remain in "clear and unambiguous" compliance with the laws of their state.  Unfortunately, nobody is in "clear and unambiguous" compliance with California law because California law is unclear and ambiguous itself.  The unsettled status of our law has created a "green rush" through a legal minefield.  Unfortunately, many cannabis entrepreneurs fail to take the appropriate legal precautions before wading into this new, dangerous and evolving industry. They often learn about the risks the hard way.  

When operating a marijuana dispensary, your mantra must always be "CYA" (Cover Your A**). Keeping your proverbial ducks in a row will reduce the risk of attracting unwanted attention from law enforcement. Maintaining proper, professionally-prepared documentation will also help establish your legal defenses if you are ever accused of any crimes related to the operation of your dispensary.  

Many of my clients call me after they've been raided.  They've often failed to properly cover their a**es when they were setting up and running their dispensaries.  Now they face serious criminal charges for conspiracy, cultivation, transportation, possession and sale of marijuana.  Their documentation may be improper or insufficient to establish a medical defense.  Prosecutors can prove that my clients were growing marijuana or trading it for money, but my clients cannot prove that their activities were performed pursuant to any lawfully-organized cannabis club.  

Don't make this mistake.     

Before you begin the process of forming your dispensary, you should consult with a qualified attorney (such as myself) to ensure your compliance with local laws.  Our firm offers a variety of services to cannabis start-ups, including initial consulting services, help with business formation (filing articles of incorporation, depending on the business entity that best suits your individual circumstances), obtaining a Seller's Permit and Employer Identification Number, drafting of necessary documents that your dispensary will use in daily operations (contracts, bylaws, membership agreements, etc.), ensuring continuing compliance, and training your employees on the law.  

After consulting with a qualified attorney, you must begin the process of creating your business plan.  Your business plan will include such considerations as the form that your business entity will take.  Depending on the size of your proposed project and the number of partners involved, you might choose to organize as a collective, a cooperative or a non-profit mutual interest corporation. Your attorney will explain the advantages and disadvantages of each business form.  Some types of business entities require you to file complicated documents with the Secretary of State, including Articles of Incorporation and governing bylaws.  Our firm can handle this entire process for you, or we can simply advise you if you wish to prepare and file the documents yourself.  

Once you've formed your business entity by filing the appropriate documents with the state, you must apply for a Seller's Permit and Employee Identification Number for tax purposes.  Unlike other types of "medicine", the California Board of Equalization has determined that medical marijuana is taxable and that dispensaries must pay sales taxes.  Again, we can prepare the necessary documentation for you, or else we can provide helpful advice if you wish to do it yourself.  

After your dispensary is properly formed and you have your Seller's Permit / EIN, you must begin the laborious process of drafting the various contracts and agreements for members, growers, transporters, employees, caregivers, etc.  Our firm will draft original contracts to specifically meet the needs of your unique dispensary.  

Once your shop is open and running, you must take care to ensure that your employees are adequately trained on both the law and the shop's in-house policies.  As the owner, you may be held legally responsible for crimes committed by your employees in certain circumstances.  You can also be sued or exposed to civil liability for activities that occur in and around your dispensary.  We can advise you regarding how to limit your own exposure to costly civil lawsuits and to criminal liability for crimes committed by your employees.  We can also provide regular employee training and continuing consulting services to ensure that your dispensary remains compliant with the evolving laws.  

If you've ever considered starting your own marijuana dispensary in California, call our office today to schedule an initial consultation.  (714) 505-2468. 

Thanks for reading.  

Tuesday, March 11, 2014

Rules for Possessing and Transporting Firearms in California

A few weeks ago, I wrote a piece about California's wacky approach to weapons laws.  If you read that post, available here, you already know that it's legal to keep a machete under the driver's seat of your car, but it's illegal to keep a baseball bat in your own home if the bat's intended use is as a weapon.  You can carry a 12-inch Bowie knife on your belt, but you can be arrested for keeping an extendable baton under your bed for self-defense.  Samurai swords are legal; nunchucks are not. You may carry this concealed upon your person, but not this.  I never said these rules made sense.

All these California laws about knives, clubs and martial arts weapons were so goofy, I decided to save firearms for another day.  Well, today is that day.  Luckily, the rules about guns are a little simpler than the nonsensical 4-tier approach that we use to classify other weapons.

To oversimplify things, there are 3 main laws governing how / where you may possess firearms in California.  And of course, each of these laws contain exceptions, exemptions and caveats.  The Big Three laws regarding possession of firearms in California are as follows:

1) You may not carry a concealed (or "concealable") firearm in any public place or in the passenger area of your car (PC 25400).  Handguns must be locked and out of reach during transport.
2) You may not carry a loaded firearm within any incorporated city (PC 25850), and
3) You may not "open carry" any sort of firearm (handgun, rifle or shotgun) outside of your vehicle within any incorporated city (PC 26350 & PC 26400).  Since last year, California is no longer an "open carry" state.  You may still, however, carry an unloaded rifle or shotgun in your vehicle, e.g. in a gun rack.

Of course, these rules make allowances for police officers, military personnel, and licensed security guards to carry firearms as necessary.  There are also some common-sense exceptions to allow for things like shooting competitions, hunting, target ranges, gun buy-back programs, licensed "concealed carry", etc.

Some of the exceptions are less intuitive, but still make sense.  For example, these rules do not apply inside your own residence, place of business or other property that you own or lawfully possess.  You may also transport an unloaded gun between any of those places.  "Residence" includes any temporary residence, such as a campsite or hotel room (you may possess loaded and concealed weapons while camping).  You may even carry a loaded / concealed gun at your office if you own the place or you have your boss's permission to do so.

PC 25400 does not apply while a person is fishing, but PC 25850 does.  Essentially, this means that you may carry a concealed weapon while fishing, but the gun must not be loaded in town.  If you are fishing outside of city limits, you may carry a loaded, concealed handgun.

As mentioned, this is a very oversimplified glance at some of the laws regarding possession of firearms in California.  The rules are complicated, but this should help give you a basic understanding of your rights and obligations as a gun owner in the Golden State.  If you or a loved one is accused of any crime involving firearms, call our office for a free consultation.  714 505 2468.

Thanks for reading.

Friday, February 14, 2014

The Hits Keep Coming for the FPD

The Orange County District Attorney announced this afternoon that it will pursue criminal charges against another Fullerton Police Officer.  This time, Officer Hugo Garcia, 32, is accused of theft and embezzlement, both felonies, related to the fraudulent sale of a vehicle.

According to the DA, Garcia borrowed $12,000 from a private lender in October of 2012, using his Chevy Tahoe as collateral.  The very next month, he sold the vehicle to an auto wholesaler for $12,000 cash, despite the fact that the lender still held a security interest in the car.

When Garcia stopped making payments on the loan, the lender repossessed the vehicle from a third party, who had purchased the car some time after it was sold by the wholesaler.  The wholesaler then compensated the third-party buyer for the purchase price of the Tahoe, resulting in a loss for the wholesaler.

That's Fullerton's finest.

Garcia is scheduled to be arraigned on March 14, 2014 at the North Justice Center in Fullerton.

What Kinds of Weapons Can I Legally Possess in California?

The laws regarding weapons in California are (like most of our laws), complicated, nuanced, counter-intuitive and not entirely rational.  We have specific rules to govern all sorts of weapons, including some you've probably never even heard of (what the hell is a "sandclub"?).

Today, I want to talk specifically about knives, clubs / batons, martial arts weapons, and a few other favorites.  I'll reserve firearms for another day because guns probably deserve their own post. 

For the sake of easily organizing and conceptualizing the different laws that work together to govern weapons in California, I've created my own handy 4-tier classification system.  This is an over-simplified glance at a few common weapons and the restrictions regarding their use.  Since I invented this chart, you won't find it in any law book.  Don't cite to this chart in court or when dealing with police.  Nobody will know what you're talking about if you argue that your folding knife is a "Class-4 pocket knife" and not a "Class-2 switchblade".  The chart is just a simplified way to wrap your head around a complicated and poorly organized series of laws.

My 4 tiers are as follows:

-Class 1:  Weapons that are illegal to own, possess, manufacture, import, sell, loan, give away, offer for sale, etc.  Put simply, these weapons are ILLEGAL in California for any purpose. Theoretically, you could be arrested just for having them in your own home for self-defense (subject to some exceptions).  
  • Any weapon that is disguised or not immediately recognizable as a weapon (any type of knife that is designed to look like an air gauge, lipstick case, writing pen, belt buckle, hair brush, etc.)
  • Any type of hardened knuckles (wooden, metal or composite / plastic)
  • Any type of billy club, blackjack, sap, sandbag, sandclub, sap or slungshot (this is not a typo. a "slungshot", also called a "monkey fist", is a weighted ball on a rope).  Courts have determined that "billy club" includes any type of bat, stick, club or baton if it's kept for use as a weapon, even for home defense.  Wait, that can't be right.  But it is.  Keeping a baseball bat under your bed as a weapon for home defense is arguably illegal in California.  That's right, a loaded shotgun under the bed = legal.  Baseball bat under the bed = illegal.  Of course, it would be virtually impossible for police to enforce this absurd law unless the bat were used to commit some sort of crime.  In the absence of some other criminal activity, courts would likely find that the 2nd Amendment's Right to Bear Arms trumps California's nonsensical rule against club-type weapons in the home for self-defense.  
  • Class 1 also includes "nunchaku" / "martial arts"-type weapons, with exceptions for martial arts schools and instructors.  

-Class 2:  Weapons that may be owned or possessed at home, but may not be carried in public or within the passenger area of any vehicle.  Class 2 weapons may be manufactured and / or imported into the state, but may not be sold, loaned, transferred or given away in California. Basically, you may own one, but that's all you're allowed to do with it.  
  • Switchblades and butterfly knives with blades longer than 2 inches fall within this class -- they may be owned and possessed at home, just not in public or in your car.  You may not sell them, loan them to a friend, give them away, or transfer them to any other person.  

-Class 3:  Weapons that may be carried openly upon the person or within the passenger area of a vehicle, but may not be concealed upon the person.  
  • Any dirk or dagger.  "Dirk" and "dagger" are both synonymous terms for stabbing weapons. This includes anything with a fixed blade, capable of being used to inflict death or serious injury by stabbing.  Folding knifes don't count, no matter how big they are, as long as the blade is not extended and locked into place while concealed.  If you've ever watched an episode of "Sons of Anarchy", you probably noticed Jax wearing a large Bowie knife on his belt.  Jax must have studied section 20200 of the California Penal Code, which reads, "A knife carried in a sheath that is worn openly suspended from the waist of the wearer is not concealed within the meaning of [this code]".  If you want to carry a fixed-blade knife, you must wear it openly on your belt, or else leave it in your car.  Do not wear a knife on a lanyard around your neck or concealed under your shirt.  Aside from being stupid, it's also illegal.  

-Class 4:  Weapons that may be carried and concealed upon the person, subject to some restrictions.  Generally, law-abiding adults may possess weapons in this category for self-defense. Felons, addicts, minors and people with certain misdemeanor convictions may be prohibited from carrying even class-4 weapons.  Class-4 weapons include:
  • Tear gas / pepper spray
  • Stun guns
  • Folding knifes, as long as the blade is not open and locked into place while concealed.

There are many possible defenses to weapons charges in California.  Often, illegal weapons are discovered by police during illegal searches of your property.  If a search is performed without your permission, without probable cause and without a warrant, there may be grounds to suppress anything discovered as a result of that search.  Only a qualified criminal defense attorney can tell you whether or not you might have a defense based on a violation of your right to privacy.  

Even if you are found to be in possession of an item that fits the legal description of a prohibited weapon, you might have a compelling argument that the item itself is not actually a "weapon".  If it's an antique, an heirloom, a movie prop or the possessor has some innocent explanation for the item, then the item might not be a "weapon" within the meaning of the law.  For example, a baseball bat could be used to play baseball or it could be used to break the knees of a rival bookie. If a person is found in possession of a baseball bat, a baseball glove, a bucket of baseballs and a pair of baseball cleats, then the bat itself is clearly a piece of sporting equipment and not a weapon. Of course, baseball bats may be used to legally play baseball in California.  On the other hand, if a person is found with a baseball bat behind the seat of his car, with no other sporting goods in the vehicle, he's going to be arrested on suspicion of carrying an illegal baton. 

If you or a loved one is accused of possessing an illegal weapon in California, call our office for a free consultation.  (714) 505-2468.  

Thanks for reading.