Petition and Complaint Against Board of Supervisors

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LETITIA E. PEPPER, SBN 105277 Director of Legal and Legislative Analysis for Crusaders for Patients Rights P. O. Box 55560 Riverside, CA 92517 (951) 781-8883 Attorney for Plaintiff Crusaders for Patients Rights SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO ) ) ) RIGHTS, a California Corporation, ) ) Petitioner and Plaintiff, ) ) vs. ) ) BOARD OF SUPERVISORS OF THE ) ) COUNTY OF SAN BERNARDINO, ) ) Respondent and Defendant. ) ) __________________________________ ) ) CALIFORNIA CHIEFS OF POLICE ) ) ASSN, a California Corporation, ) ) Real Party in Interest and ) ) Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CRUSADERS FOR PATIENTS' Case No.: CIVDS 1105492 PETITION FOR: (1) WRIT OF MANDATE TO HALT PROJECT APPROVED IN VIOLATION OF CEQA [pursuant to Code Civ. Proc. 1060, 1095, 1094.5, Pub. Resources Code 21000 et seq.; CEQA Guidelines] (2) WRIT OF ADMINISTRATIVE MANDAMUS FOR JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION [pursuant to Code of Civil Procedure 1094.5] COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF BASED ON VIOLATIONS OF FEDERAL AND (1) Violation of Free Speech Rights Under U.S. Constitution, Amend. 1 & Cal. Const, art. 1, 2(a) (2) Violation of Associational Rights derived from U.S. Constitution, Amend. 1 & Cal. Const, art. 1, 3 (3) Violation of The Ralph M. Brown Act, Gov. Code 54950 et seq. (4) Violation of The Compassionate Use Act, Health & Safety Code 11362.5 (5) Violation of The Medical Marijuana Program Act, codified at Health & & Safety Code 11362.7 to 11362.9. (6) Violation of The 2008 Attorney General's Guidelines for the NonDiversion of Medical Marijuana, as mandated by Health & Safety Code 11362.81, subd. (d);
PETITION FOR WRITS UNDER CEQA AND CCP 1094.5; COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 1
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THE PARTIES Petitioner and Plaintiff Crusaders for Patients Rights (hereinafter CPR) is, and at all times relevant hereto was, a 501(c)(3) corporation duly organized and existing under the laws of California, and an affiliate of Americans for Safe Access, also a 501(c)(3) corporation duly organized and existing under the laws of California. Petitioners members are California citizens and taxpayers who have a direct interest in the safe, affordable and legal availability of medical marijuana1 for use by California residents who are qualified to use it under applicable state laws, including Prop. 215 (the voter-approved initiative known as The Compassionate Use Act [hereinafter the CUA], codified at Health & Safety Code section 11362.5), the CUAs enabling statutes (as enacted by Senate Bill 420, known as The Medical Marijuana Program Act [hereinafter the MMPA] Hereinafter Petitioner shall refer to medical marijuana as medical marijuana when such term appears in a statute, case law or documents used in the administrative record of this case. In all other instances, Petitioner shall use the term cannabis to refer to cannabis indica and cannabis sativa, colloquially known by the slang term marijuana, and shall use the term marijuana when referring to cannabis that is used, illegally under both state and federal law, recreationally rather than medicinally. The species cannabis indica and sativa were legally used for medicinal purposes for at least 3,500 years. Such legal, medicinal use of both whole herbal cannabis, extracts of cannabis, and cannabis cigarettes (used to treat asthma), was well-established in the United States before 1937. The medicinal herb and its extracts were referred to as cannabis in U.S. medical literature and catalogues for the sale of medicinal herbs. It was not until 1937, when the Marijuana Stamp Tax Act (MSTA) was enacted, that the little-known slang term marijuana began to become the generic term for cannabis. (For a medical and legal history of cannabis/marijuana, see generally Herer, The Emperor Wears No Clothes (2007) as available on the Internet at no cost at www.jackherer.com.) Despite its stance that marijuana has no medicinal value, the U.S. Government, in 2003, became the assignee of a patent on cannabinoids (the primary medicinal compounds found in cannabis), U. S. Patent No. 6,630,507 B1, date of patent Oct. 7, 2002, as antioxidants and neuro-protectants. This patent describes cannabinoids as having medicinal value in the treatment of, e.g., ischemic attacks, trauma, HIV, AIDS, autoimmune diseases, Parkinsons Disease and Alzheimers Disease. California citizens have been using wholeherbal cannabis to treat all of the above, and other, ailments.
1
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and codified at Health & Safety Codes 11362.7 to 11362.9), and the 2008 Attorney Generals Guidelines for the Nondiversion of Medical Marijuana [hereinafter the 2008 A.G. Guidelines], which 2008 A. G. Guidelines the Legislature mandated the Attorney General to prepare, as part of The Medical Marijuana Program Act, in Health & Safety Code 11362.81, subd. (d). CPRs members direct interests include, as patients and primary caregivers as defined by the applicable medical marijuana laws:
a.
the right and ability to legally obtain cannabis, as a form of herbal medicinal treatment used as an alternative to, and/or an adjunct with, compounded pharmaceutical prescription medications and/or over-the-counter (OTC) compounded medications, from lawfully operated storefront cannabis dispensing collectives, as well as from non-storefront cannabis dispensing collectives and cooperatives as defined in the 2008 Guidelines; the right and ability to legally cultivate cannabis for their own personal medicinal use and for distribution to other patients and caregivers who do not or cannot cultivate such cannabis for themselves; the right to associate together and form legally recognized and operated collectives and cooperatives for the purposes of legally cultivating and distributing cannabis to each other; the right to associate together and form legally recognized and operated collectives and cooperatives for the purposes of sharing information with each other related to the medicinal uses of cannabis, the methods of preparing cannabis extracts and cannabis-containing foods used for medicinal purposes; and the right to engage in the above-noted activities in a legal, safe and affordable manner.
b.
c.
d.
e.
CPRs members direct interests include, as family members and friends of such patients and primary caregivers, assuring that patients and caregivers have legal,
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safe and affordable access to cannabis as an herbal medicinal therapy that can be used as an alternative to, and/or adjunct with, prescription, compounded pharmaceutical medications and/or OTC compounded medications. CPRs members include, but are not limited to, residents of both the unincorporated and incorporated areas of the County of San Bernardino. CPR brings this action on behalf of itself and its members and/or supporters, and on behalf of all Californians who may now, or in the future, need to be able to legally, safely and affordably obtain cannabis in the County of San Bernardino. CPR also brings this action on behalf of all residents of California, who have a beneficial interest in all state agencies compliance with CEQA and specifically with the greenhouse gas emission components of the California Environmental Quality Act (hereinafter CEQA), because greenhouse gas emissions and their environmental impacts -- do not respect county and city borders. The County of San Bernardino (hereinafter COUNTY) is, and at all relevant times hereto was, a government agency of the State of California and both a local agency and the lead agency, for purposes of CEQA, for the project in question, to wit, the discretionary approval of and adoption of the belowdescribed ordinance (hereinafter either the Project or the ORDINANCE). Respondent and Defendant the Board of Supervisors of the County (hereinafter the BOARD) is COUNTYS governing body and is authorized and required by law to hold public hearings as required by law, to accept public comment and testimony as required by law, to determine the adequacy of and certify environmental documents under CEQA, and to take all other actions with respect to the approval of projects subject to CEQA and the adoption of COUNTYS ordinances. BOARD is also charged with adopting laws to protect the publics health, safety and welfare.
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10.
Real Party in Interest California Chiefs of Police Association (hereinafter CALCOPA) is a 501(c)(3) corporation duly organized and existing under the laws of California. CALCOPA promulgates, and makes available on its website, a model ordinance that, when adopted by cities or counties, both impairs safe, legal and affordable access to cannabis and promotes the need for retaining and/or hiring additional law enforcement and/or code enforcement personnel to enforce such Ordinance. COUNTY and BOARD chose to use CALCOPAs model ordinance as the basis for COUNTYS own Ordinance No. 4140 (hereinafter the ORDINANCE), which is a word-for-word copy, with no substantive changes, of the CALCOPA model ordinance.
11.
12.
13.
At the March 22, 2011 public hearing before BOARD, the Chief of Police of the City of Fontana spoke, on behalf of the San Bernardino County Chiefs and Sheriffs Association, (hereinafter SBCCSA) in favor of the ORDINANCE.
14.
CPR is informed and believes, and on that basis alleges, that SBCCSA, which is not listed with the Secretary of State as a separate entity, is a subset, chapter, branch or similar affiliate of CALCOPA. Accordingly, for purposes of CEQA, CALCOPA, on behalf of itself and SBCCSA, was and is the project applicant for the adoption of the ORDINANCE. A true and correct copy of the ORDINANCE is attached hereto as EXHIBIT 1 and incorporated here by such reference as though fully set forth herein.
15.
16.
The true names and capacities of DOES 1 through 24, inclusive, are unknown to CPR. CPR will amend this petition/complaint to set forth the true names and capacities of said DOE real parties in interest/defendants as soon as the same have been ascertained. CPR is informed and believes, and thereon alleges, that each such DOE parties 1 through 12 has jurisdiction by law over one or more
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aspects of the Ordinance and its approval and that each of said DOE parties 13 through 24 claims an interest in the actions of the respondents/defendants challenged herein. PRE-FILING NOTICES On April 22, 2011, before the commencement of this action, CPR served written notice of the commencement of this action on COUNTY and BOARD in accordance with the requirements of the Code of Civil Procedure 388 and Public Resources Code 21167.5.2 A true and correct copy of such written notice is attached hereto as EXHIBIT 2 and incorporated here by such reference as though fully set forth herein. On April 23, 2011, CPR notified the Attorney General of the State of California of the commencement of this action and thereafter, concomitantly with the filing of this complaint and petition, furnished her with a copy of the petition and complaint in accordance with the requirements of Public Resources Code 21167.7. A true and correct copy of such written notice to the California Attorney General is attached hereto as EXHIBIT 3 and incorporated here by such reference as though fully set forth herein. PRELIMINARY FACTS (Related to COUNTY and BOARDS Illegal Restriction of Speech at the Public Hearings on the Ordinance, in Violation of State and Federal Constitutional Rights of Free Speech and the Ralph M. Brown Act) Before its adoption, the ORDINANCE was the subject matter of two hearings before COUNTYS Planning Commission, on February 3 and 17, 2011. At the February 3, 2011 hearing, many members of the public, including members of CPR, spoke against the adoption of the ORDINANCE, raising, among other issues, that the proposed ORDINANCE violated cannabis patients All further statutory references shall be to the Public Resources Code except as otherwise noted.
2
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and caregivers state and federal constitutional freedom of association rights, the CUA, the MMPA, the 2008 A. G. Guidelines, and even CEQA, given that staff had reported that the project was exempt from CEQA pursuant to CEQA Guidelines, Guideline 15061(b)(3).3 A true and correct copy of the February 3, 2011 letter submitted by CPR to the Planning Commission (but erroneously addressed to BOARD), objecting to the adoption of the ORDINANCE, is attached hereto as EXHIBIT 4 and incorporated here by such reference as though fully set forth herein. 21. The Planning Commission, rather than recommend that the BOARD adopt the ORDINANCE, continued the hearing until February 17, 2011. When the agenda for the February 17, 2011 Planning Commission was released, it purported to limit further public testimony at the continued hearing, so as to prevent the public from commenting on any new materials received by the Planning Commission between the end of the February 3, 2011 hearing and the beginning of the February 17, 2011 hearing. Accordingly, CPR on behalf of its members and the general public, on February 16, 2011, submitted two letters to County Counsel objecting not only to such limitations on public comment/testimony, but to the Planning Commissions insistence that members of the public give their full names and addresses before being allowed to speak. True and correct copies of the two February 16, 2011 letters submitted to County Counsel by CPR objecting to the agendas announced limitation of comment/testimony and requirement that speakers give their full names and addresses are attached hereto as EXHIBITS 5 and 6 incorporated here by such reference as though fully set forth herein. In addition to submitting EXHIBITS 5 and 6 to County Counsel before the meeting, CPR also submitted further written comments about the legal and
3
All further references to Guideline shall be to CEQA Guidelines.
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factual problems with the ORDINANCE to the Planning Commission itself. A true and correct copy of the February 16, 2011 letter from CPR submitted to the Planning Commission is attached hereto as EXHIBIT 7 and incorporated here by such reference as though fully set forth herein. At the February 17, 2011 hearing, although the Planning Commission did not restrict public comment/testimony as it had planned to do according to its agenda, it did illegally limit public comment/testimony in another way. Specifically, although the subject matter listed on the agenda for discussion was the ORDINANCE, and whether or not the Planning Commission should recommend to BOARD that the ORDINANCE be adopted, the Planning Commissions Chair, in violation of the Ralph M. Brown Act, 54952.3 and state and federal constitutional rights of free speech, instructed those in attendance that (1) they were not to discuss their health problems and the impact of the ORDINANCE on such problems, and (2) they could only speak on the topic of land use, upon pain of being physically removed from the hearing chambers. The Chair of the Planning Commission repeated these directions on numerous occasions, as members of the audience attempted to address the issue of their health problems and the impact of the ORDINANCE on such problems because it would impair their legal, safe and affordable access to cannabis. During this hearing, members of the public raised the issues of (a) where, exactly, indoor cannabis could be grown and (b) the unnecessary expense of paying for electricity to grow it indoors. In response, the Chair commented that people could simply grow cannabis on their windowsills, indicating a serious lack of knowledge on the subject, since healthy cannabis plants can be as tall as field corn and bushy enough to fill a five foot by five foot square. Therefore, at the end of this hearing, members of the public came to the front of the chambers to talk to her about the realities of
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growing cannabis, and she then suggested they could use greenhouses, as opposed to windowsills, to grow indoor cannabis. Those present then asked if greenhouses which have clear sides and roofs would actually be acceptable, since then the plants could be seen. Because no reasons had ever been given in the staff report, or anywhere else, for requiring only indoor cultivation of cannabis, the public had been reduced to guessing that visibility of outdoor cannabis was an issue for Countys decision-makers, but the Ordinance itself said nothing about the issue of visibility. Asked if greenhouses were acceptable under the Ordinance, the Assistant County Counsel who had been present during the hearing, and who was present afterwards, would only say that plants had to be grown inside a building with solid walls and a solid roof, but would not confirm whether or not clear walls and roofs were acceptable under the ORDINANCE, thus clearly leaving this issue to be resolved via litigation after the first patients had invested in greenhouses, started growing cannabis, and then been cited by County for violating the Ordinance. The Planning Commission, following such hearing, recommended to the BOARD that it adopt the ORDINANCE with no changes. The ORDINANCE and its proposed adoption then became the subject matter of two hearings before COUNTYS BOARD, on March 22 and April 5, 2011. On March 22, 2011, the BOARDS hearing on the adoption of the ORDINANCE began with the BOARDS Chair, Josie Gonzales, in violation of the Ralph M. Brown Act and state and federal constitutional rights of free speech, instructing those in attendance that (1) they were not to discuss their health problems and the impact of the ORDINANCE on such problems, and (2) they could only speak on the topic of land use, upon pain of being physically removed from the hearing chambers if they tried to discuss anything but land use.
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35.
CPR, through its attorney, attempted to raise, as a point of order from the floor, the illegality of such a restriction on public comment, but the Chair refused to recognize CPRs attorney. CPRs attorney then, at the lunch break, attempted to explain the on-going free speech violation to the Chair and to County Counsel, but to no avail; Mrs. Gonzales did not understand the legal issue, and County Counsel, refusing to speak to CPRs attorney, simply left for lunch. Therefore, the second half of the hearing proceeded with the same improper restriction on speech. Nonetheless, CPR was able to put into the record the written testimony of several of its members, including the written testimony of Jeremy Weissmiller, Sgt. USMC Ret., a true and correct copy of which is attached hereto as EXHIBIT 8 and incorporated by this reference as though fully set forth here.
36.
37.
After the lunch break, some members of the audience who had put in speaker cards to speak against the adoption of the ORDINANCE did not return, and therefore did not provide public comment/testimony. CPR is informed and believes, and on that basis alleges, that the on-going, illegal restriction on speech, in addition to improperly restricting the contents of the record in terms of comments that were made by those members of the public who did speak, also had a chilling effect on speech and discouraged other persons in attendance from even trying to speak to the issues that were known to and important to them. The ORDINANCE, by purporting to ban not only (1) any associations of more than two persons collectively and/or cooperatively cultivating and distributing cannabis, (2) storefront cannabis dispensing collectives and cooperatives, and (3) the outdoor cultivation of cannabis, clearly will impair safe, legal and local access to a legal alternative to, and/or adjunct with, more traditional, modern compounded, pharmaceutical medications, both those sold by prescription and those sold OTC.
38.
39.
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40.
Thus, among the issues known to and important to members of the public who were directed to speak to only land use issues, were such issues as their own, personal experiences, or those of their sick relatives, with using prescription and OTC medications, the problems they experienced using such medications, how using cannabis as an alternative to, or adjunct with, such more traditional, modern compounded medications had helped them or their relatives, how the difference in outcome between a treatment using cannabis or not using cannabis was so significant that they would resort to illegally purchasing cannabis on the black market if it were otherwise unavailable, personal anecdotes about their ability to grow cannabis outdoors with no problems versus the problems they had experienced, or had heard from others, about growing cannabis indoors, and other issues about which one can only speculate, given that the ban on discussion of anything other than land use prevented them from even being raised.
41.
At the end of the March 22, 2011 hearing, the BOARD voted to adopt the ORDINANCE, and to set it for the required second reading on April 5, 2011. Between March 21 and April 5, 2011, CPR submitted several letters to the BOARD and County Counsel pointing out the legal and factual problems with adoption of the ORDINANCE. True and correct copies of the letters from CPR submitted to the BOARD and County Counsel submitting evidence related to the proposed Ordinances adoption and raising objections to its adoption are attached hereto as EXHIBITS 9, 10, 11, 12, 13, 14, 15, 16, and 17 and incorporated here by such reference as though fully set forth herein. On April 5, 2011, the second reading was waived, but, at the request of Ron Deziel, a CPR member, to his Supervisor, Supervisor Derry, the ORDINANCES adoption was removed from the agendas Consent Calendar and further public comment/testimony was taken. On April 5, 2011, the BOARD unanimously voted to adopt the ORDINANCE.
42.
43.
44.
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45.
Final approval of the ORDINANCE having been given on April 5, 2011, the ORDINANCE will take effect on May 6, 2011 if not enjoined. PRELIMINARY FACTS
(Related to How, by Adopting ORDINANCE, COUNTY and BOARD Violated CEQA, COUNTYS General Plan, COUNTYS Consent Decree Signed with the People of the State of California, the CUA, S.B. 420, the 2008 A. G. Guidelines, State and Federal Constitutional Rights of Free Association and Basic Principles of Land Use and Planning
46.
The Ordinance constitutes a project within the meaning of CEQA, a fact recognized by County and Defendant Board, as evidenced by the Notice of Exemption from CEQA (hereinafter the NOE) adopted and filed by County on March 23, 2011. A true and correct copy of such NOE is attached hereto as EXHIBIT 18 and incorporated here by such reference as though fully set forth herein. If such NOE is found to be legally adequate, then this action has been brought within 35 days of the filing of the NOE as required by 21167, subd. (d) and Guideline 15062(d). If such NOE is found to be legally inadequate, as Petitioner contends, then this action has been brought within 180 days of the filing of the NOE, as required by 21167, subd. (d) and Guideline 15112(c)(2).
47.
48.
49.
When COUNTY and BOARD adopted such ORDINANCE, they knew, and used as a rationale for adopting such ORDINANCE, that other counties and cities have adopted (equally illegal) bans on collective distribution of cannabis, and, specifically, that all of the incorporated cities in San Bernardino County have banned the collective distribution of cannabis, including distribution via storefront dispensing collectives. The Ordinance, among other things, purports to:
50.
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a.
define medical marijuana dispensary in such a way as to include in such definition all private, non-retail-related, non-storefront distribution of cannabis by private collectives and cooperatives in a manner allowed as lawful by the 2008 A. G. Guidelines; make illegal, and ban, any association of more than two (2) cannabis patients organized to cultivate and/or distribute cannabis;
b.
c. ban, as a violation of Countys Development Code, all such medical marijuana dispensaries within Countys unincorporated areas;
d.
ban, as a violation of Countys Development Code, the outdoor cultivation of cannabis by anyone, including persons legally allowed, pursuant to state law, to cultivate cannabis both indoor and outdoors as each patient finds most suitable, safe and affordable; potentially purport to re-criminalize, within Countys unincorporated areas, as violations of the Development Code that may be punished by being charged as misdemeanors, the following activities which were decriminalized by state law, and which, under state law, are not illegal: i. all medical marijuana dispensaries, including all private, non-retailrelated, non-storefront private medical marijuana collectives and cooperatives that are lawful under state law
ii.
e.
the outdoor cultivation of cannabis.
CPR and the public presented evidence that the Ordinance will have the following environmental impacts and related impacts on human health:
a.
remove from the environment the beneficial side-effects of the outdoor cultivation of cannabis, which cultivation of large, outdoor crop-sized plants results in a lessening of greenhouse gases by the carbon-fixing action of the plants use of CO2 and a concomitant reduction in ambient air temperatures; substitute, by requiring such plants indoor cultivation, the use of large amounts of electricity in place of natural sunlight;
b.
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c.
substitute, by requiring such plants indoor cultivation, large amounts of electricity to create breezes to take the place of natural breezes needed to strengthen the indoor plants stems and to circulate air for overall plant health; substitute, by requiring such plants indoor cultivation, large amounts of electricity to ventilate and to cool the interior growing spaces to reduce the build-up of heat from the electrical light; substitute, in place of natural sunlight, large numbers of specialized electric light bulbs, each of which have a useful life of no more than a year before they must be replaced (used bulbs, which may contain heavy metals, which then must be properly disposed of); substitute artificial, inorganic chemicals as fertilizer and soil substitutes in place of natural soils;
d.
e.
f.
g. substitute toxic pesticides in place of natural, organic pest predators such as birds, beneficial insects and lizards;
h.
cause, because of the increased demands for electricity, an increased demand for and production of, specialized electrical light bulbs, artificial chemicals, and pesticides, an environmental impact displaced in the areas where such electricity, light bulbs, and chemicals are produced and/or disposed of; cause, by banning within Countys jurisdiction all medical marijuana dispensaries, and by making it more onerous for patients and caregivers to cultivate cannabis themselves, an increased use of fossil fuels, e.g., gasoline, oil and tires, by Countys residents who will be forced to travel longer distances to obtain their legal cannabis from more distance sources; cause, by reducing legal, safe, affordable, outdoor cultivation of, and local access to, cannabis, significantly increased public health risks related to the concomitant changes in:
i.
j.
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i.
increased mileage traveled by patients and/or caregivers to obtain cannabis;
ii. increased illegal activities by gangs and drug dealers selling cannabis to patients and caregivers who are unable to readily obtain cannabis legally; iii. increased use of electricity and water in residential homes that may be unsuited to such increased usage; iv. increased risk of, and actual increases in, indoor humidity, mold and pests and of the indoor use of chemicals to control mold and pests;
v.
re-allocation of family budgets to try to cover the increased costs associated with obtaining cannabis and/or cultivating cannabis indoors instead of outside, e.g., costs of gas, electricity, equipment, and chemicals, so that less money may be available for other necessities, leading to the proverbial need to choose between food or healthcare; increased opportunities for, and therefore increased risk of, negative interactions between, on the one hand, patients and caregivers, and, on the other hand, code enforcement officers related to the ORDINANCES illegal restrictions of patients and caregivers rights to cultivate and distribute cannabis pursuant to state law; increased opportunities for, and therefore increased risk of, negative interactions between, on the one hand, patients and caregivers, and, on the other hand, law enforcement officers related to the ORDINANCES illegal re-criminalization of cultivation and collective distribution of cannabis by patients and caregivers; increased risks of patients and caregivers being subjected to stressful searches, seizures, fines and even assaults and arrests by COUNTYS employees acting under color of law pursuant to the ORDINANCE;
vi.
vii.
viii.
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k.
cause, by banning collective distribution of cannabis within Countys unincorporated areas, with the knowledge that such bans were already in place in all or all but one of COUNTYS incorporated cities, a cumulative impact on legal, safe and affordable access to cannabis, e.g., an increase in the cost of such cannabis due to decreased supplies (because of those unable to legally cultivate and distribute under the ORDINANCE) and increased demand (because of those unable to legally cultivate for themselves outdoors, unable, practically, to cultivate for themselves indoors, and who therefore become additional consumers of cannabis which someone else must grow); deprive those persons who legally choose to use herbal cannabis in place of, or as an adjunct to, prescription medications, of equal access to healthcare and to treatment of pain, neuropathy and all the other ailments which they can best treat with cannabis; thereby statistically increase the risk of, and therefore the number of, persons who will suffer kidney and liver failure because of increased dependence on both over-the-counter (OTC) and prescription pain and spasticity medications when adequate cannabis is unavailable; thereby statistically increase the risk of, and therefore the number of, persons suffering from spinal cord injuries, quadriplegia, and paraplegia who will experience uncontrolled autonomic dysreflexia, with its attendant risks of brain hemorrhage and resulting injuries (e.g., coma and/or death), because of inadequate, or no, access to cannabis; thereby statistically increase the risk of, and therefore the number of, persons who will become malnourished and depressed and therefore fail to recover and/or die when they are unable to obtain adequate cannabis to treat the nausea, lack of appetite and depression that accompany chemotherapy treatment for cancer, AIDS, HIV and other illnesses;
l.
m.
n.
o.
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p. thereby statistically increase the risk of, and therefore the number of, persons who will experience worsening of glaucoma and other, related inflammatory eye diseases; q. thereby statistically increase the risk of, and therefore the number of, persons who will experience painful, unnecessarily long-lasting migraines when they are unable to quickly halt the progression of such attacks by using inhaled cannabis; r. thereby statistically increase the risk of, and therefore the number of, persons who will suffer damage to organs, damage to other bodily systems and other side effects associated with prescription drug use, because of increased dependence on both OTC and prescription medications when adequate cannabis is unavailable; s. thereby statistically increase the risk of, and therefore the number of, persons suffering from HIV and AIDS who will suffer over-all declines in health and increased susceptibility to opportunistic diseases when they are unable to obtain adequate cannabis to use as a supplement to their OTC and prescription medications.
t.
thereby deprive military veterans of adequate access to cannabis as a complete treatment, or an adjunct to traditional compounded prescription medications, for pain, phantom limb pain, spasticity associated with spinal cord injuries, and post-traumatic stress disorder (PTSD) even though, in 2010, the Veterans Administration officially began to allow veterans residing in California, the District of Columbia, and all states where cannabis is legal to use cannabis instead of, or in addition to, VA-supplied prescription pain medications.
Approval of the ORDINANCE is thus inconsistent with BOARD and COUNTYs duties to protect the publics health, safety and welfare, and with COUNTYS General Plans components related to
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a.
reduction of air pollution, greenhouse gas emissions, and fossil fuel and electrical consumption; protecting human life, health and safety; providing equitable, local access to healthcare and other facilities related to the publics health, safety and well-being. EXHAUSTION OF ADMINISTRATIVE REMEDIES
b. c.
CPRs members, as well as its Director of Legal and Legislative Analysis, Letitia E. Pepper, attended the Planning Commission and BOARD hearings and/or sent written comments to raise objections to the process by which public comments were improperly limited, to the violations of state law that would be committed if the ORDINANCE were adopted, and to the lack of any nexus between the evidence and the findings in support of adoption of such ORDINANCCE. CPRs members, as well as its Director of Legal and Legislative Analysis, Letitia E. Pepper, attended the Planning Commission and BOARD hearings and/or sent written objections to the ORDINANCE based on its effects on human health and the environment, if adopted, including, but not limited to, objections based on
a.
failure to comply with the California Environmental Quality Act (hereinafter CEQA), specifically that Section 6 of the Ordinance, which purported to find that the Ordinance was not subject to CEQA, was patently incorrect and not supported by the evidence; violations of the CUA, the MMPA, and the 2008 A. G. Guidelines; serious negative impacts on public health & safety presented by the ORDINANCE; improper restriction of public comments/testimony and therefore of the record -- in violation of free speech rights and the Ralph M. Brown Act;
b. c.
d.
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e.
violations of cannabis patients and their caregivers constitutional rights of association; the lack of evidentiary support for the claimed local health and safety problems that supposedly could only be resolved by a ban of storefront dispensaries rather than regulation of such facilities.
f.
CPR and the public made multiple submissions to, and appearances before, COUNTYS Planning Commission, COUNTY, and BOARD at each and every hearing conducted on adoption of the ORDINANCE. At such hearings, and in letters and e-mails delivered to COUNTY and BOARD before and after such hearings, CPR and the public advised them of their public duties, and requested them to comply with such duties. In a last-ditch effort to prevent the adoption of the ORDINANCE, one of CPRs members, Ron Deziel, even asked his Supervisor to pull the ORDINANCES adoption from the Consent Calendar so that members of the public could again try to persuade the BOARD that its adoption of the ORDINANCE was improper because the findings in support of the ORDINANCE were not supported by the evidence in the record or by the law.
58.
However, by April 5, 2011, very few cannabis patients and caregivers even bothered to attend, having already been discouraged from participation by being told they could only speak to the land use issue. The ORDINANCE was pulled for further discussion and the few members of the public present, including CPR, via its attorney and a few of its members, Ron Deziel, Jeriann Durbin-Fairman, Mark Martin, and Abel Chapa, again objected, unsuccessfully, to the ORDINANCES adoption. Therefore, it clearly being futile to make any further submissions and demands that COUNTY and BOARD comply with applicable laws and/or not adopt the ORDINANCE when the findings in support of it were not supported by the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 61.
evidentiary record, CPR and the public have exhausted their administrative remedies. IRREPARABLE INJURY Petitioner and its members and supporters, as well as California citizens in general, will suffer irreparable injuries as a consequence of the adverse impacts from Respondents illegal approval of the Project, enactment of, and threatened enforcement of, the ORDINANCE. 62. Such irreparable injuries include, but are not limited to:
a.
inability of cannabis patients and caregivers to legally begin outdoor cultivation of cannabis now. Cannabis is a large plant best grown outdoors, where it is seasonal crop whose success depends on patients ability to plant it in the spring and allow it seven to nine months of outdoor growth before harvesting it. Patients who fear arrest and prosecution pursuant to the ORDINANCE are therefore unable to begin their outdoor planting season in the face of the threat presented by the ORDINANCES adoption and enforcement; loss of patients necessary, home-produced medicines as a result of the interference with the planting of a seasonal crop, which will result in the patients and their families need to come up with significant sums of money to buy replacement herbal cannabis or do without it;
b.
c. loss of patients and caregivers safe and legal access to alternate sources of cannabis from local, dispensing storefront collectives and cooperatives; d. apparent necessity to pay for the facilities, equipment, supplies and electricity necessary to engage in indoor cultivation of cannabis in order to be able to legally cultivate cannabis.
e.
inability to know whether or not it is legal to grow cannabis inside a greenhouse, given the ORDINANCES ambiguity as to the meaning of no
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 64. c. b.
outdoor cultivation and County Counsels unwillingness to make any definitive statement about whether solid walls and roofs may be clear. f. increases in greenhouse gas emissions and use of fossil fuels;
g.
increased mileage that must be driven in order to obtain cannabis; the fear that they will be unable to safely, legally, and affordably cultivate and/or obtain cannabis in their own neighborhoods, and that they will again suffer the physical problems they experienced before they were able to obtain and use cannabis. NO PLAIN, SPEEDY OR ADEQUATE REMEDY
h. serious emotional distress and worry suffered by patients and caregivers over
63.
CPR, its members, and all members of the public affected by the ORDINANCE, have no plain, speedy or adequate remedy in the ordinary course of law. CPRs only recourse is to seek the relief provided by:
a.
CEQA, Public Resources Code 21000 et seq., which provides for judicial review under Code of Civil Procedure 1094.5 and 1097; Code of Civil Procedure, 1094.5, which provides for judicial review of administrative agency decisions ; a complaint for declaratory and injunctive relief, including seeking a temporary restraining order, and preliminary and permanent injunction. CLEAR AND PRESENT RIGHT AND INTEREST IN VINDICATION OF ALL APPLICABLE LAWS
CPR, its members, and members of the public have a clear and present right to, and an immediate beneficial interest in, COUNTY and BOARDs compliance with:
a. b.
CEQA; the requirement that government actions must be supported by findings, such findings must be supported by the evidence in the record, and government actions must not be arbitrary and capricious;
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 66. 65.
c.
all laws, e.g., the Brown Act and state and federal constitutional provisions, related to the publics right to comment and present testimony as part of such record; all laws, e.g., state and federal constitutional provisions, related to the publics right to freely associate with whom they choose, e.g., to belong to collectives of cannabis patients which consist of more than two members;
d.
e. all state laws and regulations related to cannabis patients and caregivers legal rights to safe and affordable access to cannabis, as well as to personally cultivate and collectively distribute cannabis. VENUE Venue is proper because the actions complained of occurred in the City of San Bernardino. / / / / / PETITION FOR A WRIT OF MANDATE TO HALT PROJECT APPROVED IN VIOLATION OF CEQA FIRST CAUSE OF ACTION [For Violation of CEQA Guidelines 15061(b)(3), 15061(a)(1); Preparation of and Reliance on a Legally Inadequate NOE] CPR incorporates paragraphs 1 through 62 here by this reference as though fully set forth here. 67. Guideline 15061(a) and (b) provide that, once COUNTY, as lead agency, has determined that its activity, e.g., the proposed discretionary approval of an ordinance, is a project within the meaning of CEQA, it may declare such project to be exempt from CEQA.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
68.
COUNTYS NOE, attached to this petition/complaint as EXHIBIT 18, states that COUNTY had determined that the Project was exempt from CEQA pursuant to Guideline 15061(b)(3).
69.
Guideline 15061(b)(3) provides that a project is exempt from CEQA if [t]]he activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. COUNTYS NOE, in keeping with the notice requirements of Guideline 15062(a)(1), contained the following Project description: An ordinance to amend Title 8 of the County Code to ban medical marijuana dispensaries, to regulate the cultivation of medical marijuana, and to require the registration of certain state licensed facilities that are not included in the definition of dispensaries, and to amend Title 1 to add a registration fee for those facilities. Although the Project description did not so state, the Projects regulation of the cultivation of cannabis consists of a ban of all outdoor cultivation of cannabis, as set out in EXHIBIT 1, Section 3, subdivision (c). The Project therefore did not ban indoor cultivation of cannabis; thus, all persons legally entitled to grow cannabis within Countys unincorporated areas, who had been growing cannabis outdoors, or who would have grown cannabis outdoors in the future, will be forced to grow cannabis indoors in order to comply with the Ordinance. Growing any crop, let alone cannabis, indoors requires significantly more electricity, more chemicals, more equipment and more light bulbs, all of which must be produced and disposed of, than does growing it outdoors. COUNTYS NOE, in keeping with the requirements of Guideline 15062(a)(4), also contained the following brief statement of reasons to support the finding
70.
71.
72.
73.
74.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 78. 77. 76.
[of exemption]: Since the ordinance prohibits the establishment of medical marijuana facilities, it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, and thus, the Project is also exempt from the requirements of CEQ pursuant to state CEQA Guidelines 15061(b)(3). 75. The NOEs Reasons why project is exempt also entirely failed to refer to the Projects cultivation regulation component, let alone its outdoor cultivation ban component, and therefore entirely obscured the particular component of the Project that created at least a possibility if not a certainty that the Project may have a significant effect on the environment. The NOE thus both failed to describe the Project in a way that reflected the nature of the new cultivation regulation, which allows only indoors cultivation and gave, as the only reason to support the finding of exemption from CEQA, only that the ORDINANCE prohibited the establishment of medical marijuana facilities as though that was all the ORDINANCE does, when, in fact, the ORDINANCE also prohibits outdoor cultivation of cannabis. The NOEs inadequate description of the Project, when combined with another inaccurate and inadequate project description which was given as part of its reason for the exemption, made the NOE legally inadequate to give fair notice to the public or government decision-makers of the possible significant environmental impacts of the Project, e.g., its potential impact on increased electrical usage, a concomitant increase in greenhouse gas emissions, and the increased use of chemicals and humidity required when patients have to switch from outdoor to indoor cultivation of cannabis. COUNTY and BOARD violated Guideline 15062 by failing to provide an adequate description of the Project and an adequate statement of reasons to support the finding of exemption under 10561(b)(3).
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
79.
Thus, the NOE was and is legally inadequate to give notice that, factually, the Project had, and has, the potential for causing a significant impact on the environment, and was and is inadequate to support COUNTY and BOARDs claim the Project is exempt from CEQA pursuant to Guideline 15061(b)(3).
80.
COUNTY and BOARD violated CEQA by failing to provide a legally adequate NOE, and then using such legally inadequate NOE as the basis for avoiding undertaking at least a preliminary review of the Projects potential environmental impacts. Accordingly, the NOE, the approval of the Project, and the adoption of ORDINANCE 4140 must be set aside and treated as null and void. / / / / / SECOND CAUSE OF ACTION
81.
[For Violation of CEQA Guidelines 15061(b)(3), 15061(a)(1); Evidence in the Record Created a Fair Argument that the Project Might Have a Significant Environmental Impact, thus Precluding Reliance on the NOE]
82.
CPR incorporates paragraphs 1 through 78 here by this reference as though fully set forth here. Assuming arguendo that COUNTYS NOE was and is legally adequate, nonetheless the record and evidence before COUNTY and BOARD created a fair argument that the Project did have the potential for causing a significant effect on the environment (see 51, supra), so as to necessitate that COUNTY and BOARD comply with CEQAs requirements and undertake an environmental review of the Project and consider, as part of such review, alternatives to the Project as proposed.
83.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
84.
COUNTY and BOARD therefore violated CEQA by ignoring such evidence and approving and adopting the Project without undertaking at least a preliminary review of the Projects potential environmental impacts. Accordingly, the approval of the Project, and the adoption of ORDINANCE 4140, must be set aside and treated as null and void, and COUNTY and BOARD must be directed to prepare an environmental review of the Projects possible environmental impacts, then circulate such review for comments and responses to comments, before they can decide whether to approve and adopt the Project and the ORDINANCE again. THIRD CAUSE OF ACTION [For Violation of CEQA Guideline 15126.2; Failure to Consider Impacts of Project on Environment and Human Health] CPR incorporates paragraphs 1 through 78 here by this reference as though fully set forth here. Under CEQA Guideline 15126.2, subd. (a), public projects that may cause substantial adverse effects on human beings, either directly or indirectly, and over either and/or both the short- and long-term, because of impacts on the environment, must be supported by an environmental impact report (EIR) that discusses health and safety problems caused by the physical changes caused by the project and other aspects of the resource base such as public services.
85.
86.
87.
88. 89.
Such EIR also must show the correlations, if any, between a proposed project and resulting adverse health consequences. CPR and members of the public presented evidence that the Project would have adverse effects on human beings and on the areas resource base, e.g.:
a.
cannabis cultivated indoors has less medicinal value than cannabis cultivated outdoors, which requires patients to either spend more money to obtain more cannabis or do without sufficient cannabis for their ailments;
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
b. cultivating cannabis indoors in human residences carries potential health problems related to molds, uses of chemicals and pesticides indoors, and high humidity levels;
c.
a ban on local, dispensing storefront collectives will affect the areas resource base by forcing the closure of and/or preventing the opening of, storefront and non-storefront collectives as a source of cannabis for patients and caregivers; the lack of local, legal sources for cannabis will force patients and caregivers with the financial ability to do so to travel longer distances to obtain cannabis;
d.
e. forcing the public to travel longer distances carries a statistically based, increased risk of injury and death; f. banning both outdoor cultivation of cannabis and local dispensaries works to synergistically impair patients and caregivers legal, safe and affordable access to cannabis;
g.
limiting safe, affordable and legal access to cannabis will drive some patients and caregivers without the resources to travel to obtain cannabis into the illicit drug market to obtain cannabis, which carries a risk to their personal safety; increasing the demand for illicit cannabis will in turn support distribution of illicit drugs by gangs and criminals, with the attendant increases in gang and criminal activities and competition to control markets for illicit drugs, and attendant increased negative impacts on public safety; as a group, patients who choose to use cannabis as an alternative or adjunct to prescription and OTC medications, who are unable to obtain cannabis, or sufficient cannabis for their particular ailments, and some of whom have health insurance and have access to prescription medications, and some of whom have no health insurance and live on fixed incomes, -- as well as
h.
i.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 90.
future such patients -- will be at risk of such medication-related health and safety issues as:
i.
increased incidences of cirrhosis of the liver and damage to other organs caused by chronic use of prescription and OTC medications to treat chronic pain;
ii. untreated or inadequately treated nausea and loss of appetite associated with chemotherapy and HIV and AIDS; iii. malnourishment and death from nausea and loss of appetite while suffering from cancer, AIDS, HIV and other illnesses;
iv.
untreated or inadequately treated depression;
v. untreated or inadequately treated anxiety and insomnia; vi. untreated or inadequately treated bi-polar disorder;
vii.
untreated or inadequately treated ADHD and ADD; multiple sclerosis and rheumatoid arthritis;
viii. untreated or inadequately treated autoimmune diseases such as lupus, ix. untreated or inadequately treated post-traumatic stress disorder (PTSD); x. untreated or inadequately treated phantom limb pain; xi. increased need for dialysis because of increased use of prescription and OTC medications to treat the above, underlying health problems; xii. untreated or inadequately treated other illnesses for which cannabis provides a beneficial and safe alternative and/or adjunct to non-herbal, prescription and/or OTC medications. Thus, there was and is evidence from which a fair argument could and can be made that an environmental impact review was, and is, needed to fully inform the public and BOARD of the correlation between the Project and resulting adverse health and safety consequences, and to suggest and consider alternatives to the Project before its adoption.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
91.
Accordingly, BOARDs approval of the Project and enactment of ORDINANCE, having been based on a legally inadequate and otherwise evidentially-non-supported NOE, and in the absence of any EIR related to the adverse health and safety consequences of the Project and possible alternatives thereto, is null and void.
92.
Accordingly, approval of the Project and adoption of the ORDIONANCE must be set aside.
FOURTH CAUSE OF ACTION [Petition for Writ of Administrative Mandamus for Judicial Review of Administrative Agency Action [Pursuant to Code of Civil Procedure 1094.5]
93.
CPR incorporates paragraphs 1 through 78 here by this reference as though fully set forth here. Before adopting ORDINANCE 4140, COUNTY and BOARD were required to hold a legally valid public hearing, take public testimony in compliance with all applicable laws, and make findings supported by the actual evidence presented.
94.
95.
COUNTY and BOARD were then required to adopt or reject ORDINANCE 4140 based on: a. a valid and complete public record; b. evidence supported by the testimony; c. findings supported by the evidence; and
d.
all applicable laws of the State of California.
96.
Instead, COUNTY and BOARD violated their legal duties under both federal state law by:
a.
illegally limiting and censoring the contents of the public record by illegally restricting public comment to the discussion of land use in violation of U.S. Constitution, Amend. 1; California Constitution, art. 1, 2(a); and The Ralph M. Brown Act, Gov. Code 54950 et seq.
b. illegally limiting and censoring the evidence in violation of such laws;
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 99. 98. 97.
c. illegally concluding that the findings, including the finding that CEQA did not apply to the Project, were supported by the evidence after illegally limiting and censoring such evidence;
d.
adopting ORDINANCE, whose provisions are contrary to, and pre-empted buy, state laws and regulations as set forth in the CUA (Health & Safety Code 11362.5); the MMPA (Health & Safety Code 11362.7 to 11362.9), and the 2008 A. G. Guidelines (as mandated by Health & Safety Code 11362.81, subd. (d).
In each of the respects enumerated above, Respondents have violated their duties under applicable state and federal laws, abused their discretion, failed to proceed in a manner required by law, and have decided the matters complained of without the support of substantial evidence, thus rendering their decision arbitrary, capricious, and requiring that it be set aside. FIFTH CAUSE OF ACTION
[Complaint for Declaratory Relief as to the Parties Rights Related to Alleged Violations of CEQA, Planning Laws; U.S. Const., Amend. 1; California Constitution, art. 1, (2)(a), (3); The Ralph M. Brown Act, 54952.3; The CUA (Health & Safety Code, 11362.5; the MMPA (Health & Safety Code 11362.7 to 11362.9) and the 2008 A.G. Guidelines (as mandated by Health & Safety Code 11362.81, subd.(d))] CPR incorporates paragraphs 1 through 78 here by this reference as though fully set forth here. An actual controversy exists between the parties. CPR contends that BOARD and COUNTY have acted in violation of not only CEQA and laws related to planning, but in violation of Amendment 1 of the U. S. Constitution; Article 1, (2)(a) and (3) of the California Constitution; The Ralph M. Brown Act, 54952.3; the CUA (Health & Safety Code 11362.5); the MMPA (Health & Safety Code 11362.7 to 11362.9), and the 2008 A. G. Guide they must vacate
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 104. 103. 102. 100.
and set aside their approval of the Project and adoption of ORDINANCE 4140, and consider a new project which complies with state law, actually protects the publics health, safety and welfare, is supported by an adequate EIR that considers the projects impacts on human beings and the environment, and provides alternatives for otherwise unacceptable human and environmental consequences of the project. A judicial resolution of this controversy, involving as it does questions of law and fact, is necessary and appropriate. 101. As part of the declaratory relief requested, / / / / SIXTH CAUSE OF ACTION [Complaint for Injunctive Relief as to the Parties Rights Related to Alleged Violations of CEQA, Planning Laws; U.S. Const., Amend. 1; California Constitution, art. 1, (2)(a), (3); The Ralph M. Brown Act, 54952.3; The CUA (Health & Safety Code, 11362.5; the MMPA (Health & Safety Code 11362.7 to 11362.9) and the 2008 A.G. Guidelines (as mandated by Health & Safety Code 11362.81, subd.(d))] CPR incorporates paragraphs 1 through 78 here by this reference as though fully set forth here. Unless CPR and its members and supporters are granted injunctive relief, they will suffer irreparable injury as described at 51 and 89, supra, and as otherwise may be deduced from such paragraphs contents and the evidence presented by the record, all to their detriment. A judicial resolution of this controversy, involving as it does questions of law and fact, is necessary and appropriate.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
105.
CPR conservatively estimated the number of cannabis patients in COUNTY as some 21,000 persons, and made such figure part of the record. No monetary figure can be placed on the pain, suffering, distress and fear experienced by such persons because of COUNTY and BOARDs actions, and therefore no remedy at law is adequate to compensate such a large group of people for the health risks and violations of their civil rights presented by the adoption of ORDINANCE 4140 in violation of CEQA and the above-noted state and federal laws, let alone all persons effected by COUNTY and BOARDs failure to comply with laws related to greenhouse gas emissions and nonrenewable resources such as the fossil fuels needed to the increased electrical and tire and chemical consumption necessitated by the ORDINANCE. / / PRAYER FOR RELIEF
WHEREFORE, CPR prays as follows: 1. As to all causes of action herein, that the Court enter judgment determining or declaring that the approval of the Project and adoption of the ORDINANCE was illegal and therefore null and void; 2. As to the First Cause of Action herein, that the Court enter judgment determining or declaring that the NOE was legally inadequate and that adoption of the ORDINANCE was illegal and therefore null and void; 3. As to the Second Cause of Action herein, that the Court enter judgment determining or declaring that, assuming arguendo that the NOE was legally adequate, nonetheless the evidence established a fair argument that the Project might have significant environmental consequences, thus necessitating preparation of an EIR, and therefore adoption of the ORDINANCE in the absence of such EIR was illegal, null and void; 4. As to the Third Cause of Action herein, that the Court enter judgment that
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
the evidence established a fair argument that the Project might have significant environmental consequences on human health and safety and COUNTYs resource base, thus necessitating preparation of an EIR, and making COUNTY and BOARDs adoption of the ORDINANCE in the absence of an EIR illegal, null and void; 5. As to the Fourth Cause of Action herein, that the Court enter judgment that the evidence established a fair argument that the Project might have significant impacts on human health and safety and COUNTYs resource base, thus necessitating preparation of an EIR, and making COUNTY and BOARDs adoption of the ORDINANCE, in the absence of an EIR, illegal, null and void; 6. As to the Fifth Cause of Action herein, that the Court enter a declaratory judgment in the respects stated in the earlier paragraphs for this prayer, as well as a declaration that, to the extent ORDINANCE 4140 purports to recriminalize cultivation and/or the distribution of cannabis by patients and caregivers in a manner that is legal under state law, or criminalizes cannabis collectives of three or more patients and/or caregivers, such ORDINANCE is invalid and pre-empted by state law; 7. As to the Sixth Cause of Action herein, that the Court enter a temporary restraining order and a preliminary injunction restraining Respondents, and any and all persons purporting to act under color of authority derived from Respondents, from enforcing, or otherwise treating as viable, ORDINANCE 4140; 8. That CPR be awarded its costs of suit herein, including reasonable attorneys fees; 9. For such other and further relief as the Court may deem just and proper. DATED: APRIL 26, 2011 __________________________________________ LETITIA E. PEPPER for Petitioner and Plaintiff Crusaders for Patients Rights
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
VERIFICATION I, Letitia E. Pepper, am the attorney for Petitioner in this action, and in that capacity attended the public hearings described herein. I have read the foregoing Petition and Complaint. I am informed and believe, and on that basis allege, that the matters stated in it are true and that the documents attached as exhibits thereto are true and correct copies. I declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct and that this verification was executed on April 26, 2011 in Riverside, California. ___________________________________________ LETITIA E. PEPPER
LIST OF EXHIBITS Exhibit No. 1 2 3 4 Description ORDINANCE 4140 Written Notice to COUNTY of Commencement of Action Written Notice to Attorney General of Commencement of Action February 3, 2011 letter to Planning Commission (erroneously addressed to BOARD) February 16, 2011 letter to County Counsel February 16, 2011 letter to County Counsel February 16, 2011 letter to Planning Commission 23 24 Paragraph 1st Mentioned 15 17 18 20
5 6 7
23
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
8 9 10 11 12 13 14 15 16 17 18
Jeremy Weissmillers March 6, 2011 testimony, presented March 22 March 30, 2011 letter re censorship March 31, 2011 re Exhs. 1-4 March 31, 2011 re Exhs. 5-7(a) March 31, 2011 letter re Exhs. 8-13 March 31, 2011 letter re Exhs. 14-20 April 4, 2011 letter re Exhs. 21-25 April 4, 2011 letter re Exhs. 302 April 4, 2011 letter re Exh. 31 April 4, 2011 letter re Exh. 32 Notice of Exemption (NOE) filed March 23, 2011
36 42 42 42 42 42 42 42 42 42 46

Petition and Complaint Against Board of Supervisors

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Petition and Complaint Against Board of Supervisors

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. 19. 18. 17.

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All further references to Guideline shall be to CEQA Guidelines.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34. 33. 32. 31. 30.

the outdoor cultivation of cannabis.

increased mileage traveled by patients and/or caregivers to obtain cannabis;

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 78. 77. 76.

untreated or inadequately treated depression;

all applicable laws of the State of California.

b. illegally limiting and censoring the evidence in violation of such laws;

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 99. 98. 97.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 104. 103. 102. 100.

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