Blog

Wednesday, October 18, 2017 - 6:25am
The governor of California’s trailer bill known as Senate Bill 94 passed, which married the Medical Cannabis Regulation and Safety Act (MCRSA) and the Adult Use of Marijuana Act (AUMA). The regulations under the MCRSA have been scrapped and state regulators are furiously trying to draft emergency regulations for the cannabis industry. State licensing is fast approaching, with regulators informing the public that they will be open for business by January 1, 2018. Things are complicated.
 
However, one thing that the new Medical and Adult Use Regulation and Safety Act (MAUCRSA) (the baby of MCRSA and AUMA) made uncomplicated is the distribution rules. Right now, the law on the books says that cannabis products need not be sold directly to distributors, but instead, licensed cultivators, or manufacturers for that matter, can directly contract with retailers for the sale of cannabis. See California Business and Professions Code section 26110 (h). That’s the good news. However, you, as a cannabis cultivator, cannot completely escape the “middleman” distributor. Prior to the time cannabis gets to your retailer, the product has to be tested, assured for quality and transported. Business and Professions Code section 26070 (b); 26110 (d), (e). Which licensee is the only one authorized by statute to do those things? You guessed it, the distributor.
 
There is one exception to the need for a distributor under the new law, and that is a licensee who is a “microbusiness.” A microbusiness can cultivate on an area of less than 10,000 square feet and act as a licensed distributor, manufacturer, and retailer, as long as it can comply with the laws and regulations applicable to the activities the microbusiness chooses to engage in. 
Friday, October 13, 2017 - 7:04am
Last week, Governor Jerry Brown signed SB 219 (view here) into law – a bill aimed at protecting LGBT seniors from discrimination in long-term care facilities. The bill adds specific protections for LGBT residents of skilled nursing facilities, residential care facilities for the elderly, and intermediate care facilities and enacts a Bill of Rights for LGBT Long-Term Care Facility Residents. Specifically, SB 219 prohibits long-term care facilities and their staff from, among other things, denying admission, transferring, or evicting a resident based on the person’s actual or perceived sexual orientation, gender identity or expression, or HIV status; willfully and repeatedly failing to use a residents preferred name or pronouns after being clearly informed of the preferred name or pronouns; prohibiting or harassing a resident who uses or seeks to use a restroom available to other persons of the same gender identity; and denying, based on the residents’ sexual orientation, gender identity or expression, or HIV status, requests by residents to share a room. Facilities are also required to post a specific non-discrimination policy related to the LGBTQ Bill of Rights along with their current nondiscrimination policy postings.
 
While the state and, in some instances, local laws already prohibit discrimination in public accommodations on the basis of sexual orientation, gender identity and expression, and HIV status, discrimination persists in the long-term care facility setting. By specifically prohibiting certain discriminatory acts and specifying remedies, SB 219 seeks to inform LGBT residents of their rights, provide the means to vindicate them, and ultimately, reduce such harmful discrimination.
 
In addition to protections for LGBT residents, SB 219 also provides privacy protections for all long-term facility residents. Specifically, SB 219 prohibits staff who are not directly involved in providing care from being present when a resident is receiving a physical exam or personal care and is fully or partially undressed, unless the resident provides his or her express permission. Facilities are further required  to use visual privacy boundaries for residents whenever they are partially of fully unclothed. 
Wednesday, October 4, 2017 - 7:08am
Janssen Malloy LLP recently obtained a $500,000 policy limits recovery for a client injured after falling from a ladder with rotten rungs in San Francisco.  Our client was visiting family in San Francisco over the holidays when she went up a fixed wooden ladder that ascended to the roof to look at the view.  Unbeknownst to our client, the top rungs were rotten, and gave way when she had nearly reached the top.  She fell almost two stories, landing on concrete below, suffering a skull fracture, brain bleed and fractured femur.  She was in San Francisco General Hospital for several days, undergoing a rod stabilization surgery in her leg and monitoring for the skull fractures, which fortunately did not require surgery.  The defendant property owners’ insurance carrier initially denied any liability, but eventually paid the $500,000 policy limits to resolve the case.  Janssen Malloy LLP partner Michael Crowley handled the matter, and engaged a building engineer for inspection and expert testimony on the unsafe condition of the building’s ladder, and a neuropsychologist to evaluate the brain injury.  Premises liability cases always present challenges in proving notice on the part of the property owner of the dangerous condition, the length of time the condition existed, and the foreseeability of a person using the property in its unsafe condition.  In this case, early investigation, expert review, and damages presentation resulted in settlement for the maximum amount shortly after the lawsuit was served on the defendants.  Janssen Malloy LLP’s attorneys are experienced in handling a wide variety of personal injury cases, and stand ready to assist you or your family when the need arises.
Wednesday, September 27, 2017 - 9:05am
For medical care providers who see patients and write prescriptions for pain management, the opioid epidemic is at the forefront of the practice of medicine—particularly here in Humboldt County.  Recent opioid overdose data suggests an estimated 26 opioid overdose deaths in Humboldt County in 2016.  That’s one of the highest rates in California (per 100,000 residents), with the majority of deaths occurring between those aged 35 to 39 years old. 
 
California providers should know that all opioid overdose related deaths are now reported to the Medical Board of California (“MBC”) for automatic investigation.  Licensees are required to provide narrative responses to the MBC, as well as medical records.  Before providers respond to such an inquiry, it is imperative that the provider seek legal advice from attorneys experienced in both criminal law and licensing matters.  Providers should be aware that they risk incriminating themselves in certain circumstances, and they should be fully informed before they waive any right to invoke their constitutional protections.  
Wednesday, September 20, 2017 - 6:45am
One of the most common motions a criminal defendant and his or her attorney might bring is a motion to suppress evidence that was illegally obtained by law enforcement in violation of the defendant's constitutional protection against warrantless, unreasonable search or seizure. This constitutional right is guaranteed by the Fourth Amendment. Instead of seeking and obtaining a search warrant from a judge, law enforcement officers often rely on judicially-created exceptions to the Fourth Amendment's requirement of a search warrant. Two exceptions that the government frequently relies upon - as I well know from my time both as a prosecutor here in Humboldt County and as a Deputy Public Defender in another county - are the doctrines of Inventory Search and Inevitable Discovery. A recent decision by the First District Court of Appeal which hears cases from much of Northern California, including Humboldt County, illustrates the limitations of these exceptions to the search warrant requirement.
 
In People v. Wallace, 2017 DJDAR 8822 (Solano County), Leroy Wallace III was pulled over by officers of the Fairfield Police Department for displaying false registration tabs on his vehicle and arrested for that Vehicle Code violation and on suspicion of a violent incident that occurred one or two nights prior. Officers placed Wallace, who was handcuffed, in the back of a police vehicle, and then searched the vehicle Wallace had been driving. During that search, an officer found a wooden baton in the passenger compartment. Wallace was later convicted of a felony charge for possessing the wooden baton and sentenced to three years. He successfully appealed the trial court's denial of his motion to suppress evidence that officers found the baton in his vehicle.
 
Law enforcement may search a vehicle when impounding it without a search warrant, when the officer conducts that "inventory search" according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. The inventory search procedure is aimed at three separate needs: the protection of the owner's property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger from unidentified objects or persons concealed in the vehicle. However, in Wallace's case, the First District Court of Appeal found that the Fairfield Police Department officers were unable to testify that they followed key aspects of their department's procedure. Therefore, the Court reversed the trial court's finding that the prosecution could justify the seizure of the baton as part of a valid inventory search.
 
The prosecution often, as in Wallace's case, may argue in the alternative that even if the offered exception to the warrant requirement does not pass constitutional muster, the evidence would have been "inevitably discovered" by law enforcement at a later time by lawful methods. In Wallace's case, the government's fallback position also failed. The First District noted that there was no testimony establishing that Wallace's vehicle was in fact impounded and towed. If it had been, the prosecution probably could have shown that the baton would have been discovered by a Fairfielld Police Department officer properly conducting an inventory search at a later time, such as when the tow truck arrived or when Wallace's vehicle arrived at the impound yard. In a seemingly frustrated tone (courts tend not to enjoy suppressing evidence as a result of Fourth Amendment violations), the First District panel declined "to build speculative inference on top of speculative inference" and found against the government's argument that the baton would ultimately have ultimately been found by law enforcement using lawful means.
 
Convincing a court to grant the motion to suppress usually results in a dismissal of one or more charges in a criminal case. If the prosecution cannot present the illegally-obtained evidence at trial, it usually cannot prove any charges based on that evidence beyond a reasonable doubt. Janssen Malloy LLP attorneys Patrik Griego and David Nims have obtained good results for some criminal defense clients by staying apprised of the latest developments in this area of law and by litigating motions to suppress evidence that was obtained in violation of the Fourth Amendment.