petition and complaint against board of supervisors
TRANSCRIPT
PETITION FOR WRITS UNDER CEQA AND CCP 1094.5; COMPLAINT FOR
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LETITIA E. PEPPER, SBN 105277Director of Legal and Legislative Analysis for Crusaders for Patients’ RightsP. O. Box 55560Riverside, CA 92517(951) 781-8883
Attorney for Plaintiff Crusaders for Patients’ Rights
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
CRUSADERS FOR PATIENTS'
RIGHTS, a California Corporation,
Petitioner and Plaintiff,
vs.
BOARD OF SUPERVISORS OF THE
COUNTY OF SAN BERNARDINO,
Respondent and Defendant.
__________________________________
CALIFORNIA CHIEFS OF POLICE
ASS’N, a California Corporation,
Real Party in Interest and
Defendant.
)))))))))))))))))))))))))))))))))))))))
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 Non-
Diversion of Medical Marijuana, as mandated by Health & Safety Code § 11362.81, subd. (d);
PETITION FOR WRITS UNDER CEQA AND CCP 1094.5; COMPLAINT FOR
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THE PARTIES
1. 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.
2. Petitioner’s members are California citizens and taxpayers who have a direct
interest in the safe, affordable and legal availability of “medical marijuana”1
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 CUA’s enabling statutes (as enacted by Senate Bill
420, known as The Medical Marijuana Program Act [hereinafter the “MMPA”]
1 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 “anti-oxidants and neuro-protectants.” This patent describes cannabinoids as having medicinal value in the treatment of, e.g., ischemic attacks, trauma, HIV, AIDS, autoimmune diseases, Parkinson’s Disease and Alzheimer’s Disease. California citizens have been using whole-herbal cannabis to treat all of the above, and other, ailments.
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and codified at Health & Safety Codes §§ 11362.7 to 11362.9), and the 2008
Attorney General’s 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).
3. CPR’s 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;
b. 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;
c. 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;
d. 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
e. the right to engage in the above-noted activities in a legal, safe and
affordable manner.
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4. CPR’s members’ direct interests include, as family members and friends of
such patients and primary caregivers, assuring that patients and caregivers have
legal, 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.
5. CPR’s members include, but are not limited to, residents of both the
unincorporated and incorporated areas of the County of San Bernardino.
6. 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.
7. 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.
8. 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 below-
described ordinance (hereinafter either “the Project” or “the ORDINANCE”).
9. Respondent and Defendant the Board of Supervisors of the County (hereinafter
“the BOARD”) is COUNTY’S 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
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respect to the approval of projects subject to CEQA and the adoption of
COUNTY’S ordinances. BOARD is also charged with adopting laws to
protect the public’s health, safety and welfare.
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.
11. 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.
12. COUNTY and BOARD chose to use CALCOPA’s model ordinance as the
basis for COUNTY’S own Ordinance No. 4140 (hereinafter “the
ORDINANCE”), which is a word-for-word copy, with no substantive changes,
of the CALCOPA “model” ordinance.
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.
15. 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.
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
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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 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
17. 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.
18. 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 BOARD’S 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)
19. Before its adoption, the ORDINANCE was the subject matter of two hearings
before COUNTY’S Planning Commission, on February 3 and 17, 2011.
2 All further statutory references shall be to the Public Resources Code except as otherwise noted.
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20. 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’ 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.
22. 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.
23. 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
Commission’s 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 agenda’s announced limitation of comment/testimony and
requirement that speakers give their full names and addresses are
3 All further references to “Guideline” shall be to CEQA Guidelines.
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attached hereto as EXHIBITS 5 and 6 incorporated here by such
reference as though fully set forth herein.
24. In addition to submitting EXHIBITS 5 and 6 to County Counsel before the
meeting, CPR also submitted further written comments about the legal and
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.
25. 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.
26. 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
Commission’s 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.
27. 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.
28. 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.
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29. 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
growing cannabis, and she then suggested they could use greenhouses, as
opposed to windowsills, to grow “indoor” cannabis.
30. 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 County’s decision-makers,
but the Ordinance itself said nothing about the issue of visibility.
31. 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.
32. The Planning Commission, following such hearing, recommended to the
BOARD that it adopt the ORDINANCE with no changes.
33. The ORDINANCE and its proposed adoption then became the subject matter
of two hearings before COUNTY’S BOARD, on March 22 and April 5, 2011.
34. On March 22, 2011, the BOARD’S hearing on the adoption of the
ORDINANCE began with the BOARD’S Chair, Josie Gonzales, in violation of
the Ralph M. Brown Act and state and federal constitutional rights of free
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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.”
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 CPR’s attorney. CPR’s 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 CPR’s attorney, simply left for lunch.
36. 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.
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.
38. 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.
39. The ORDINANCE, by purporting to ban not only (1) any associations of more
than two persons collectively and/or cooperatively cultivating and distributing
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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.
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.
42. 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 Ordinance’s adoption and raising objections to its
adoption are attached hereto as EXHIBITS 9, 10, 11, 12, 13, 14, 15, 16,
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and 17 and incorporated here by such reference as though fully set forth
herein.
43. 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
ORDINANCE’S adoption was removed from the agenda’s Consent Calendar
and further public comment/testimony was taken.
44. On April 5, 2011, the BOARD unanimously voted to adopt the ORDINANCE.
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, COUNTY’S General Plan, COUNTY’S 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.
47. 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).
48. 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).
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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.
50. The Ordinance, among other things, purports to:
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;
b. make illegal, and ban, any association of more than two (2) cannabis
patients organized to cultivate and/or distribute cannabis;
c. ban, as a violation of County’s Development Code, all such “medical
marijuana dispensaries” within County’s unincorporated areas;
d. ban, as a violation of County’s 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;
e. potentially purport to re-criminalize, within County’s 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-
retail-related, non-storefront private medical marijuana collectives
and cooperatives that are lawful under state law
ii. the outdoor cultivation of cannabis.
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51. 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;
b. substitute, by requiring such plants’ indoor cultivation, the use of large
amounts of electricity in place of natural sunlight;
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;
d. 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;
e. 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);
f. substitute artificial, inorganic chemicals as fertilizer and soil substitutes in
place of natural soils;
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
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where such electricity, light bulbs, and chemicals are produced and/or
disposed of;
i. cause, by banning within County’s 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 County’s residents who will be forced to travel
longer distances to obtain their legal cannabis from more distance sources;
j. 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. 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;
vi. 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
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ORDINANCE’S illegal restrictions of patients’ and caregivers’
rights to cultivate and distribute cannabis pursuant to state law;
vii. 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
ORDINANCE’S illegal re-criminalization of cultivation and
collective distribution of cannabis by patients and caregivers;
viii. increased risks of patients and caregivers being subjected to stressful
searches, seizures, fines and even assaults and arrests by
COUNTY’S employees acting “under color of law” pursuant to the
ORDINANCE;
k. cause, by banning collective distribution of cannabis within County’s
unincorporated areas, with the knowledge that such bans were already in
place in all or all but one of COUNTY’S 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);
l. 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;
m. thereby statistically increase the risk of, and therefore the number of,
persons who will suffer kidney and liver failure because of increased
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dependence on both over-the-counter (OTC) and prescription pain and
spasticity medications when adequate cannabis is unavailable;
n. 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;
o. 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;
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
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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 Veteran’s 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.
52. Approval of the ORDINANCE is thus inconsistent with BOARD and
COUNTY’s duties to protect the public’s health, safety and welfare, and with
COUNTY’S General Plan’s components related to
a. reduction of air pollution, greenhouse gas emissions, and fossil fuel and
electrical consumption;
b. protecting human life, health and safety;
c. providing equitable, local access to healthcare and other facilities related to
the public’s health, safety and well-being.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
53. CPR’s 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.
54. CPR’s members, as well as its Director of Legal and Legislative Analysis,
Letitia E. Pepper, attended the Planning Commission and BOARD hearings
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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;
b. violations of the CUA, the MMPA, and the 2008 A. G. Guidelines;
c. serious negative impacts on public health & safety presented by the
ORDINANCE;
d. improper restriction of public comments/testimony – and therefore of the
record -- in violation of free speech rights and the Ralph M. Brown Act;
e. violations of cannabis patients and their caregivers’ constitutional rights of
association;
f. 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.
55. CPR and the public made multiple submissions to, and appearances before,
COUNTY’S Planning Commission, COUNTY, and BOARD at each and every
hearing conducted on adoption of the ORDINANCE.
56. 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.
57. In a last-ditch effort to prevent the adoption of the ORDINANCE, one of
CPR’s members, Ron Deziel, even asked his Supervisor to “pull” the
ORDINANCE’S adoption from the Consent Calendar so that members of the
public could again try to persuade the BOARD that its adoption of the
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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.
59. 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 ORDINANCE’S adoption.
60. 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
evidentiary record, CPR and the public have exhausted their administrative
remedies.
IRREPARABLE INJURY
61. 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 ORDINANCE’S adoption and
enforcement;
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b. 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;
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 ORDINANCE’S ambiguity as to the meaning of “no
outdoor cultivation” and County Counsel’s 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;
h. serious emotional distress and worry suffered by patients and caregivers
over 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
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. CPR’s 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;
b. Code of Civil Procedure, § 1094.5, which provides for judicial review of
administrative agency decisions ;
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c. 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
64. CPR, its members, and members of the public have a clear and present right to,
and an immediate beneficial interest in, COUNTY and BOARD’s compliance
with:
a. CEQA;
b. 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;
c. all laws, e.g., the Brown Act and state and federal constitutional provisions,
related to the public’s right to comment and present testimony as part of
such record;
d. all laws, e.g., state and federal constitutional provisions, related to the
public’s right to freely associate with whom they choose, e.g., to belong to
collectives of cannabis patients which consist of more than two members;
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
65. Venue is proper because the actions complained of occurred in the City of San
Bernardino.
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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]
66. 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.
68. COUNTY’S 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.”
70. COUNTY’S 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.”
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71. Although the Project description did not so state, the Project’s 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).
72. The Project therefore did not ban indoor cultivation of cannabis; thus, all
persons legally entitled to grow cannabis within County’s 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.
73. 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.
74. COUNTY’S NOE, in keeping with the requirements of Guideline § 15062(a)
(4), also contained the following “brief statement of reasons to support the
finding [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 NOE’s “Reasons why project is exempt” also entirely failed to refer to the
Project’s “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.”
76. 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
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facilities – as though that was all the ORDINANCE does, when, in fact, the
ORDINANCE also prohibits outdoor cultivation of cannabis.
77. The NOE’s 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.
78. 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).
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 BOARD’s
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 Project’s potential
environmental impacts.
81. Accordingly, the NOE, the approval of the Project, and the adoption of
ORDINANCE 4140 must be set aside and treated as null and void.
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SECOND CAUSE OF ACTION
[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.
83. Assuming arguendo that COUNTY’S 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 CEQA’s requirements and undertake an
environmental review of the Project and consider, as part of such review,
alternatives to the Project as proposed.
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 Project’s potential environmental impacts.
85. 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 Project’s
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]
86. CPR incorporates paragraphs 1 through 78 here by this reference as though
fully set forth here.
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87. 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.
88. Such EIR also must show the correlations, if any, between a proposed project
and resulting adverse health consequences.
89. CPR and members of the public presented evidence that the Project would
have adverse effects on human beings and on the area’s 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;
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 area’s
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;
d. 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;
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;
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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;
h. 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;
i. 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
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;
viii. untreated or inadequately treated autoimmune diseases such as
lupus, multiple sclerosis and rheumatoid arthritis;
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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.
90. 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.
91. Accordingly, BOARD’s 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.
94. Before adopting ORDINANCE 4140, COUNTY and BOARD were required to
hold a legally valid public hearing, take public testimony in compliance with
PETITION FOR WRITS UNDER CEQA AND CCP 1094.5; COMPLAINT FOR
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all applicable laws, and make findings supported by the actual evidence
presented.
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;
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).
97. 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.
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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))]
98. CPR incorporates paragraphs 1 through 78 here by this reference as though
fully set forth here.
99. 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 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 public’s health, safety and welfare, is supported by an
adequate EIR that considers the project’s impacts on human beings and the
environment, and provides alternatives for otherwise unacceptable human and
environmental consequences of the project.
100. 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,
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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))]
102. CPR incorporates paragraphs 1 through 78 here by this reference as though
fully set forth here.
103. 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.
104. A judicial resolution of this controversy, involving as it does questions of law
and fact, is necessary and appropriate.
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 BOARD’s 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 BOARD’s 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.
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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
the evidence established a fair argument that the Project might have
significant environmental consequences on human health and safety and
COUNTY’s resource base, thus necessitating preparation of an EIR, and
making COUNTY and BOARD’s 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 COUNTY’s resource
base, thus necessitating preparation of an EIR, and making COUNTY and
BOARD’s 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
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well as a declaration that, to the extent ORDINANCE 4140 purports to re-
criminalize 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
attorney’s 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
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
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LIST OF EXHIBITS
Exhibit No. Description Paragraph 1 st Mentioned
1 ORDINANCE 4140 15
2 Written Notice to COUNTY of 17 Commencement of Action
3 Written Notice to Attorney General 18of Commencement of Action
4 February 3, 2011 letter to 20Planning Commission (erroneously
addressed to BOARD)
5 February 16, 2011 letter to 23County Counsel
6 February 16, 2011 letter to 23County Counsel
7 February 16, 2011 letter to 24Planning Commission
8 Jeremy Weissmiller’s March 6, 2011 36testimony, presented March 22
9 March 30, 2011 letter re censorship 42
10 March 31, 2011 re Exhs. 1-4 42
11 March 31, 2011 re Exhs. 5-7(a) 42
12 March 31, 2011 letter re Exhs. 8-13 42
13 March 31, 2011 letter re Exhs. 14-20 42
14 April 4, 2011 letter re Exhs. 21-25 42
15 April 4, 2011 letter re Exhs. 302 42
16 April 4, 2011 letter re Exh. 31 42
17 April 4, 2011 letter re Exh. 32 42
18 Notice of Exemption (NOE) 46filed March 23, 2011