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The LawDawg Blog

Traditional Medicine Making in the Regulated Market (+ Sample Contracts!!!)

I want to deeply thank the Emerald Cup for naming me a judge in the legacy medicine-making (aka “Tincture”) category! What an honor to support the Emerald Cup in this critically important category, and CONGRATS to the winners (located online HERE)!

If folks aren’t aware of the history of cannabis tinctures, here’s the rundown:

Cannabis tinctures are one of the earliest forms of cannabis preparation, dating back centuries, though it was popularized in the 1800s by Dr. Walter O’Shaughnessy, for whom the legendary cannabis journal “O’Shaughnessy’s” is named. In California, cannabis farmers prepared cannabis tinctures to give to the seriously ill long before the Compassionate Use Act (“CUA”) was passed in 1996, but the CUA bolstered the legitimacy of cannabis’ medicinal value, which in turn bolstered its preparation in tincture and edible forms because those were most easily delivered to the seriously ill.

Tincture-making was a task often (but not always) assumed by the mom in a “mom-and-pop” farm, and tincture makers are colloquially referred to as the “medicine makers” within California’s legacy-producing communities. The title came with significant respect. Rightly so: medicine makers put their freedom and safety on the line to create these products, which were often passed (often for free) through clandestine channels to the seriously ill when our broken health care system failed another of us.

One of the great tragedies of regulation (which I blame on MCRSA in 2015, rather than Prop 64 in 2016) was the loss of the medicine makers from the California cannabis economy in favor of venture capital-backed, vertically-integrated, multi-state operators who could afford the often millions of dollars to obtain a manufacturing license from the state of California. Manufacturing licenses are actually not that expensive, but the land-use costs imposed by local governments were often too much for a “mom-and-pop” to surmount. The initial state regulations which accidentally (but firmly) excluded tinctures from the first year of the regulated market did not help.

Three years into regulation, we still do not have a fraction of the legacy tincture producers in the regulated market, but there are a small number of wonderful tincture companies who did make it and who bring that legacy to life in their products every day. Those are the brands I was so excited to see in this year’s Emerald Cup!

For those who haven’t yet made it into the regulated market, alternatives to seeking a manufacturing license on one’s own have become a bit easier. In addition to obtaining one’s own license, two other models are becoming more common: (1) obtaining a Type S (“shared use”) license, or (2) contracting a licensed manufacturer to produce a “brand” owned by a non-licensee (such as the mom and pop).

Here’s a quick overview of these two types of business models:

A Type S Licensee

A Type S license is a separate license which is allowed to use a licensed manufacturer’s “Registered Shared-Use Facility” to prepare and package the medicine maker’s own brand pursuant to a Use Agreement, which is really just a special type of lease. The benefits of a Type S license are that the medicine maker is its own company with its own set of books and track-and-trace records. It is autonomous from the primary licensee’s company. The drawbacks are that the medicine maker has to start a company, hire an attorney to draft a lease, and protect her or his intellectual property (the preparation itself, but also the tincture’s brand).

Hiring a Manufacturer to Produce the Brand

Secondly, a medicine maker can also lawfully contract with a licensed manufacturer to prepare the tincture according to the medicine makers’ specifications and send the tincture out to the market under the medicine maker’s own brand. In this scenario, the medicine maker can require the manufacturer hire the medicine maker to prepare the tincture at the manufacturer’s facility. In essence, both parties would be hiring each other in two related but not identical service agreements.

The upside to this situation is that the medicine maker’s startup costs may be lower and they can get on the market far more quickly than a Type S. The downsides to this structure are pretty heavy and include:

  1. The medicine maker is inextricably linked to the manufacturer’s business and is subject to their books and their track-and-trace records. This is the biggest and sometimes insurmountable downside.
  2. This scenario often requires two separate contracts, so its far more complex.
  3. It requires disclosures to the state as a financial interest holder or owner, depending on the deal structure.
  4. In this scenario too, the medicine maker needs to start a company, hire an attorney to draft a lease, and protect her or his intellectual property. The intellectual property protections in this scenario are slightly more complex because the medicine maker does not have its own cannabis license. Also, labor laws and tax issues need to be addressed head-on in this scenario.

Both scenarios are complicated and should not be entered into without legal counsel and in consultation with a CPA or financial advisor. There is just too much on the line, particularly because medicine makers are legacy producers who can be taken advantage of if not properly represented. For instance, an unrepresented medicine maker might be inclined to give a manufacturer a cut of the profits (which is imho a pernicious business practice in light of the policy behind the Type S license in the first place) or be bound into some other term that harms the medicine maker’s ability to take a meaningful attempt at success in the regulated industry.

In an effort for medicine makers to reduce their legal fees when they do move forward, I’m attaching two sample contracts: (1) a Type S license “Sublease and Use Agreement,” and (2) a contract to hire a manufacturer to produce a tincture according to a medicine maker’s specifications. Please note that, under no circumstances, should these contracts be signed without discussing each and every term with an attorney, but usually the attorney’s billable time will not be as significant if the template is laid out for them here, which may reduce medicine maker’s barriers to market. My hope is that folks see the market is well within their reach and that we have more legacy producers on our retail shelves.

With love and respect, ~hb



*As noted above, this deal may require a second contract which I am not providing because there are too many possible scenarios. Please seek the advice of an attorney for this complex business 👩🏼‍💼 structure.

California Cannabis Agriculture Presentation, Today at High Noon!

California Cannabis Agriculture

Today at High Noon!


In just under an hour, I’ll be presenting on California’s complex cannabis agriculture (from the comfort of your own home too, b/c this presentation is by Zoom!). Its an aggressive but fascinating topic that spans land-use, labor issues, intellectual property, and so many other areas of law.

To enroll, please call 530-362-5329 or email

Here’s a few of my slides to get you into the right mindset. See you soon!


Heather’s 2020 Wrap Up!


There’s no doubt that 2020 was a tough year in almost every way, though it was a pinnacle year for legacy cannabis farming on the local, state and national level. Here’s a few ways I supported the cannabis farming community this past year:

  • I was quoted in Bloomberg Law regarding California’s terroir-based cannabis appellations program.
  • I was quoted in Marijuana Business Daily regarding cannabis related agreements as a means to increase access to licensure in California’s legacy-producing regions.
  • I was nominated to the International Cannabis Bar Association (INCBA’s) Advisory Board, where I also serve the INCBA as Co-Chair of their Advocacy Committee and sit on their Appellations Committee.
  • I served as Chair of the International Cannabis Farmers Association (ICFA’s) Cannabis Appellations Committee during the state’s appellation regulation promulgation process and, in that capacity, helped organize ICFA’s comments (in conjunction with the Committee Members and ICFA’s amazing Board).
  • I presented on cannabis appellations to two law schools (Berkeley and New Hampshire) and I released numerous in-depth analyses regarding cannabis appellations.
  • I presented to the Bar Association of San Francisco on cannabis contracts.
  • I presented to the Nevada County Law Library on cannabis appellations. (This yearly presentation is coming up again! Check it out HERE.)
  • I presented to the Nevada County Cannabis Alliance (NCCA) twice, once on cannabis appellations and once on cannabis contracts, and I presented to the Humboldt County Growers Alliance (HCGA) on cannabis contracts.
  • I was named a judge of the tincture category for the 2020 Emerald Cup competition, a huge honor!
  • On several occasions, I offered public comment to the California Department of Food and Agriculture on terroir-based cannabis appellations and their importance to the legacy farming community.
  • I offered public comment to the County of Humboldt regarding their exciting Marketing Assessment that will hopefully serve as a foundation for other legacy farming regions.

Thank you to my community for these fun accolades, but each opportunity helped to shape policy, educate the community, and build coalition for the greater work that is ahead of us in the coming years. In that spirit, here’s what I’m focusing on in 2021:

  • I will continue to draft some most cutting edge agreements available in California’s regulated cannabis industry including cannabis genetics agreements, cannabis-related scientific research agreements, cannabis intellectual property agreements and all sorts of complex cannabis transaction agreements.


  • I am publishing a legal workbook for cannabis farmers in the coming weeks and have a few other academic projects in the works for 2021.


  • I finally began offering intellectual property services!

In closing, it is safe to say 2020 was historic for California’s legacy producing regions. The cannabis industry was designated an “essential business,” legacy farmers successfully organized to support the state’s a terroir-based appellation program, and the United Nations voted to reschedule cannabis (a baby step towards access to regulated international markets).

We continue to change history by writing our own story.

I am proud to continue serving my community in new and exciting ways in 2021.


Heather Burke


Heather L. Burke, P.C.’s Statement re Appellation Petition Support Services


In anticipation of the coming opening of CDFA’s appellations program, Sarah and I wanted to publish the limited appellation-related services we are offering in an effort to make the process of selecting legal support as streamlined and transparent as possible. 

Our firm is breaking the work into two categories: (1) entity and business development (i.e. “the legal stuff”) and (2) project management (i.e. drafting the petition and collaborating with consultants and soil/water/geological scientists). Not all of that work needs to be done by an attorney, so here’s more detail about our available services, as well as a few suggestions to best manage the appellation petition preparation process: 

Entity Formation and Contract Drafting Services (The “Legal Stuff”)

For simple liability reasons, our firm is likely to advise hopeful appellation groups to structure their appellations as business entities (LLCs, corporations, b corps, etc.) with appropriate arm’s length agreements between the appellation business entity and the farmer-members’ entities. This is true legal work that should be performed by an attorney.

Formation documents often form the basis of ownership disputes in the future, so thoughtful entity formation and governance is often critical to the sustained success of a new business venture, especially in light of the legacy (i.e. long game) strategy of the appellations program. 

Project Management Services 

As we’ve done for clients many times in the past, we will likely prepare a “Project Management Task List” and use that document to delegate tasks and to calendar deadlines for task deliverables. In that document, we will name a project manager, identify team member roles/responsibilities, and track assigned consultant or scientific reports (including due dates). 

Our Project Management Task Lists ensure all tasks are being handled, that everyone has clear responsibilities, and that communications are efficient. 

Petition Drafting Services

Appellations petitions require two different types of reports: (1) technical (i.e. scientific) reports and (2) non-technical (i.e. not scientific) reports. Due to the significant time it takes to draft these reports, preparation of these documents is the most expensive and time consuming piece of any application process. Taking the time to delegate each writing task in a cost-effective manner can save THOUSANDS of dollars. No joke.   

For example, it may be more cost-effective to assign the bulk of the non-technical drafting work if someone in the appellation’s core team is proficient in writing narrative-style reports for the various regulatory agencies (CDFA, CDFW, water board, etc.) since those reports require a similar skill set. Another way we keep our clients’ drafting costs down is the use of template and sample documents, which we prepare based on the regulations and usually include writing prompts. That way, folks can fill the narrative reports themselves (and save $$ on drafting costs).  

In any event, we will support our clients in non-technical drafting in whatever way makes sense.

Regulatory and Land-Use Support Services

As with any new venture in California cannabis agriculture, the application of commercial standards to what would otherwise amount to pure agricultural activity leads to intensive regulatory and land-use issues. Just as with local land-use permits and state licensing, this type of work can be performed by any competent consultant and oftentimes by the appellation groups themselves. We can, however, provide oversight and guidance when needed. 

Attorney’s Fees

As with all our services, our fees for appellation development and petition support are negotiable and, to ensure our rates are fair, we intend to graduate our billable rates based on the complexity of the services required. For example, petition drafting services will be billed at a lower rate than legal and entity structuring tasks. 


We are committed to seeing California’s appellations through to a new era of business transactions where the craft cannabis produced in our hills fetches the highest price in the regulated marketplace. We understand the importance of this program to our shared community and are hopeful for the honor in assisting in this historic endeavor. 


*This post is subject to Rule 7.1-7.3 of the Rules of Professional Conduct. This communication (1) is an advertisement, (2) may not contain any untrue statement, and (3) is directed to the general public via a website. Our firm’s name and address is Origin Group Law LLP: 408 Broad Street, Suite 11B, Nevada City, CA 95959.

Products Liability Insurance Issues for California’s Regulated Cannabis Farmers

When it comes to minimizing risk for farmers, products liability insurance is probably the most important thing no one forces a cannabis farmer to obtain. While products liability insurance gets overlooked because no agency demands proof of coverage, this type of insurance coverage is necessary to protect against consumer claims. It only takes one products liability lawsuit to bankrupt a new business.

Products Liability Overview

Sick or injured consumers regularly file products liability lawsuits claiming a product caused their sickness or their injury. These claims take many forms, including injuries caused by (1) contamination, (2) design defects, (3) improper warnings, and (4) mislabeling, among others. Product liability claims in the cannabis industry are perhaps inevitable, especially given cannabis’ recent arrival to the regulated marketplace and residual notions of reefer madness. 

Suing the Supply Chain

Some (but not all) of these types of claims are subject to “strict liability” which means a farmer (or manufacturer or distributor or retailer)’s intent and their regulatory compliance do not matter. Indeed, everyone who participated in bringing the product to market can be held responsible under a strict liability theory, from the farmer all the way through the supply chain to the retailer. Even worse, folks in the supply chain can be held liable under a strict liability theory, even when they took reasonable steps to prevent the product defect that is alleged to have caused the consumer (aka the plaintiff) sickness or injury.

Even if strict liability isn’t in play, it may be hard for a consumer to prove exactly when the product was supposedly contaminated so everyone in the supply chain is usually named as a defendant. For example, just yesterday a Southern California law firm announced a products liability lawsuit against Kushy Punch, an edibles company, claiming the cannabis edible caused the death of a young woman named Le’Sharia Bre’Aun Steele. Notably, the lawsuit names the grower (an indoor producer in Adelanto or Cathedral City), the manufacturer (Kushy Punch), the retailer (Urbn Leaf in San Diego), in addition to several others which we presume are the distribution company, perhaps a transport company, and/or any parent companies. 

The scariest part about product liability is that some unlucky cultivators will get dragged in to these types of lawsuits even if the harm had nothing to do with the cannabis or if the cannabis became harmful after it left the farm. Mounting a legal defense is extremely expensive in these cases. 

Fortunately, a product liability insurance policy can help.

The Duty to Defend

I spent the first half of my career as a civil litigator and represented lots of small businesses that got sued because they touched a project that went bad. Oftentimes it wasn’t their fault, but proving that takes time and (expensive) expert witnesses. My clients couldn’t afford that, but my legal bills were sent to the insurance company because insurance policies often contain a “duty to defend.” The product liability policy’s “duty to defend” requirement means the insurance company has to provide a legal defense if you get sued for something your policy would cover. 


Subrogation is when an insurance company goes after a third-party to recover amounts paid on behalf of their own policy-holder. For instance, if a consumer is hurt and their insurance is paying millions of dollars in medical bill, the consumer may be required to cooperate with their insurance company’s efforts to recover those losses by suing the supply chain. 

Additional Insureds 

If the buyer of the farmer’s cannabis is willing/able to list the farmer as an “additional insured,” farmers might be able to get around buying products liability insurance. However, a buyer’s product liability policy holder (aka the insurance company) may not be willing to add the farmer as an additional insured where the buyer is acting as a mere middleman to packaged products, though it is likely the insurance company will have any problems adding a farmer in a bulk wholesale situation.  

When the one party is added to the other’s product liability policy, the insurance company will defend the farmer too. Additionally, the insurance company can’t force their policy holder to sue the additionally insured party because insurance companies can’t pursue subrogation against people covered under the same policy.

We expect to see the use of additional insured increase in the coming years, both by the farmer and by buyers in the regulated marketplace. 

Understanding the Policy Exclusions

Cannabis farmers must be savvy insurance shoppers, meaning a farmer should not assume a product liability claim will be covered just because they paid for product liability insurance. All of the policies need to be reviewed for “federally unlawful conduct” exclusions. Additionally, product liability policies can also exclude intoxicants, carcinogens, and hardware, which is critically important if the product is going to a manufacturer. 

Cannabis farmers must disclose to the insurance agent that the farmer is a cannabis business, and then the farmer must ask about exclusions and policy types. Some policies only cover claims that are made during the policy period, while others focus on when the injury itself occurred. Look for insurance agencies that cater to cannabis companies – a cannabis farmer might pay a little more, but they are better equipped to address coverage issues unique to cannabis.


Products liability claims are scary, and no one wants to be accused of producing a product that harms another human. But this is how business is in the United States whether we like it or not, so products liability lawsuits are a risk that go hand in hand with putting products into the market. There’s simply no possible way to prevent all potential claims. 

Notably, however, products liability insurance should be able to protect the policyholder and any additional insured, so we sincerely hope folks take this protection seriously and get a meaningful policy in place before putting their cannabis into the marketplace.

Authored by Sarah Smale

Edited by Heather Burke

Gettin’ Paid: A 2020 Debt Collection Primer for California Cannabis Farmers

In the first few years of regulated cannabis activity in California, many (if not most) cannabis farmers did not get paid for their product on time and, in some cases, they didn’t get paid at all. Debt collection quickly became a hot topic, as unpaid farmers waded through their legal options, from selling the debt to full tilt civil litigation. In those situations, a written contract almost always helps the farmer, which means oral agreements often hurt the producer (aka the farmer) more than the buyer (aka the distributor or manufacturer). To be sure, the best defense is a good offense (just sayin’).

While we are hoping to see more on-time payments this year, here’s a quick reminder of the debt-collection issues in play for the 2020 harvest season just in case:

1.  Private Debt Collectors

There are a few private companies who will buy or assume a farmer’s outstanding debt, oftentimes at pennies on the dollar. Although there are lots of ads for these companies on the internet, we’ve not yet heard of a debt collection company actually getting a farmer their money in the California cannabis farming context, but our fingers are crossed that this method becomes more viable in the future.

If a farmer decides to go with a private debt collection company, it’s important to keep the statute of limitation in mind, so it’s wise to check with an attorney regarding how much time to give the debt collector to collect.

2.   A Demand Letter

A “demand letter” is a letter demanding that someone pay a debt as agreed, and this is often the first step in more aggressively going after an unpaid debt. A demand letter does not necessarily need to be written by an attorney, though a formal demand is often a legal requirement before suing someone, yet they also might used as evidence down the road. That’s why demand letters should be prepared with the nuanced case-specific legal issues in mind.

Demand letters can do more harm than good if they are sloppy, admit a weakness in the case, or disclose a legal strategy too soon. Be wary of sending out demand letters without properly vetting the legal issues and the legal strategy, including avoiding making any damaging admissions. Consider sending the demand letter confidentially, pursuant to California’s strong public policy in favor of private settlements of disputes. See California Evidence Code Section 1152 and consider adding this statement to the beginning of your demand letter: “The following is a confidential settlement communication pursuant to California Evidence Code Section 1152. Offers of compromise in settlement negotiations are inadmissible to prove liability for loss or damage.”

3 . Alternative Dispute Resolution

Sometimes folks who are disputing a debt are willing to go to mediation or arbitration to keep the dispute out of court. Alternative dispute resolution (ADR) procedures such as mediation and arbitration are most helpful where there is some disagreement about the outstanding payment, such as who is responsible for a product that fails testing after a distributor fails to quarantine the product appropriately. Mediation is never binding; it is simply the use of an experienced neutral to help the parties reach a compromise. Arbitration can be binding or non-binding and takes the place of a court trial. In both mediation and arbitration, both parties have to agree to participate (though in certain cases with respect to arbitration, a party could be compelled to arbitrate based on a contract clause, for example).

However, ADR is less helpful if the buyer is simply ignoring the seller (aka “radio silence”) or is going out of business (which is unfortunately common in California cannabis), since ADR is most effective when both parties are engaged in the process.

4.  Breach of Contract Lawsuit

If a demand goes unanswered, the next step may be to institute a legal case, a.k.a. litigation. If the farmer takes the buyer to court, the primary “causes of action” or “claims” would likely be related to breach of the agreement to pay money to the farmer for their product and that buyer’s unjust enrichment off of the farmer’s product.

Many farmers “eat” their losses and instead choose not to sue because litigation is costly, stressful, and time consuming, but keep in mind that attorneys’ fees are often in play in breach of contract actions, meaning the party that wins the lawsuit may be able to have their attorneys’ fees added to the other side’s bill. In oral agreements, there is almost never an enforceable agreement for attorneys’ fees- another point in favor of always using a professionally written contract.

5.  Foreclosing on a Security Interest or Producer’s Lien

A security interest is simply collateral from one party to another for an unpaid debt. Security interests can take many forms but the main point is that the farmer (who holds the security interest) may be able to get paid out on a priority basis if the buyer goes out of business and ends up selling off its assets.  We often recommend security interests wherever the sells their entire season in a single transaction under an agreement to pay the farmer at some later date.

In addition to security interests granted in a written purchase agreement, California law thankfully offers farmers an “producer’s lien,” which is a special type of security interest that farmers keep in their product after a buyer takes possession of the product before paying. A producer’s lien is an implied security interest, meaning the parties do not need to have a written contract in place for the lien to exist: it is automatic, provided they do not waive the producer’s lien in any written agreement.

While CDFA does offer an administrative avenue for foreclosing on a producer’s lien, cannabis farmers are not yet eligible to use that option. This means that cannabis farmers can only foreclose their producer’s lien in a civil court at this time. There is no precedent (as far as we’re aware) applying the producer’s lien in the cannabis context, though the law is fairly clear, so we assume this lien will be applied in the cannabis context at some point in the future.

Additionally, the producer’s lien may be extinguished if the buyer sells the product to a third-party, as is often the case with cannabis distributors who are acting as an intermediary (aka middle-man/broker). In such a case, the farmer may want to consider filing an injunction to stop the distributor from selling the cannabis to another party.

Moving forward, we hope written security interests become more common in California’s cannabis purchase agreements, since they offer the farmer the most protection. If a distro or manufacturer is taking the farmer’s entire season in a single transaction without paying at the time of delivery, security interests are a fair request.


In closing, these are worst case scenarios that generally only come into play when the farmer is already under financial stress due to the lack of payment. So the processes for going after an unpaid debt are often shrouded in a cloud of negativity and are not utilized. However, these formal processes are designed to protect sellers from unscrupulous buyers, meaning these systems may suck, but they can be powerful tools to protect farmers from getting ripped off.

Use of a written contract with an attorneys’ fees clause will provide the most protection in the event of non-payment, as the attorneys’ fees clause makes it harder for the buyer to justify the cost of the fight if the case were to proceed through trial and result in a prevailing party attorneys’ fee award. If all of this information is making your head spin, reach out to an attorney knowledgeable about the California cannabis industry and breach of contract actions.

Massive gratitude to Katy M. Young of Ad Astra Law Group LPP in San Francisco, one of Sarah and my favorite civil litigators of all time, for co-authoring this blog with me. Stay safe please!

Heather Burke (Origin Group Law LLP)

To sign up for Origin Group Law LLP’s blog list, please go HERE.

Katy M. Young, Ad Astra Law Group LLP

For Ad Astra Law Group LLP’s blog, please go HERE.

The Humboldt County Cannabis Marketing Assessment: An Overview


While many of us in the world of cannabis agriculture were scurrying about to get our appellation comments in to CDFA last week, Humboldt County also closed its open comment period on a critically important document relating to the future of region-based cannabis marketing within the County: the Humboldt County Cannabis Marketing Assessment.

The marketing assessment is a brilliant document prepared by the Humboldt County Growers Alliance that (1) compares and contrasts various regional-based marketing programs utilized by agricultural-producing communities in other regions, and (2) makes recommendations to Humboldt County to begin the process to identify and implement a formal regional marketing strategy. Notably, the marketing assessment recommends that Humboldt County’s regional marketing strategy be framed as a public-private venture between the County and the local cannabis industry, that a marketing committee be empaneled to ensure tax funds are used appropriately, and the County implement a County-wide stamp/certification mark program, among numerous other recommendations.

Sarah and I submitted lengthy comments in support, which can be found online HERE. Here is an overview of our comments:

Regional and Supply Chain Dynamics: A Farmer-First Approach

Our primary request was that the County employ a “farmer-first” approach in these policy developments. Since a agricultural marketing strategy starts with the farmer, its critical Humboldt County’s cannabis farmers have a strong voice in the shaping of these policies. While everyone in the supply chain (manufacturers, distro, retail, labs) and related stakeholders (the County government, local environmental groups, etc.) must have a meaningful place in these discussion, the economic health of the agricultural origins of the supply chain is critical to a successful regional marketing program.

In addition to the supply chain dynamics, Humboldt County is a massive County with disparate growing regions. Regional dynamics are an asset rather than a liability and, as such, the interplay among the various producing-enclaves in a Countywide program must be addressed head on at the outset.

More Procedural Clarity Needed

Despite attending two of the County’s public input meetings, I’m still unclear as to what the next steps are. Is the County going to approve the marketing strategy as-is or will further public input be taken? We’ve asked the County for more insight and look forward to the County’s response to our procedural questions in the coming weeks.

In any event, the Humboldt County cannabis industry must look closely at the different examples (Kona and Colombian coffee, Napa Valley and Bordeaux wine) and see what fits and what does not. For instance, we need further input from the community as to (1) what level of government-private partnership is appropriate for Humboldt County GIs, i.e. determining the best organizational structure based on the industry’s unique history and its desired roles/responsibilities, and the related issue regarding (2) who owns and who enforces the intellectual property that is the Humboldt County name and the local appellation name, including any related certification marks.

These are not easy questions but thankfully the marketing assessment’s compare and contrast approach offers Humboldt County the opportunity to develop a thoughtful and sophisticated regional marketing strategy based on our unique history and our goals.

The Marketing Assessment as a Baseline  

We believe the marketing assessment is the right first step forward for Humboldt County cannabis to assume its place as a global industry leader, and we asked that the document serve as the baseline from which the County works to enact a robust marketing strategy.

In closing, the Humboldt County Marketing Assessment is the most exciting policy development of the year, in our humble view. Everything cannabis farmers have ever asked for is on the table here (craft market boost, increased value for environmentally sustainable and regionally-based products, equity participation, long game strategy, a united supply chain, government protection/enforcement against interlopers, and so on). Let’s go get it.



Contracts Overview: What Paper to Push? (+ a Sample Purchase Contract). PART 5 OF 5: THE BUSINESS FUNDAMENTALS EVERY CALIFORNIA CANNABIS COMPANY NEEDS TO KNOW.

This final blog in our 5-part series regarding California cannabis contracts focuses on the types of contracts to be used in different scenarios. Here’s a rundown of the most common agreements:


 A purchase or a sale agreement is a contract to buy or sell something. These types of agreements are used most commonly when a distributor or a manufacturer buys a set quantity of cannabis flower, cannabis leaf, or fresh cannabis plant. Purchase agreements can be a one-time transaction, or folks will often style them as “master agreements,” which allow the parties to continue to buy and sell to each other multiple times using only “purchase orders” (which are issued by a buyer) and “invoices” (which are issued by a seller).

Here’s a sample master purchase agreement but BEWARE that this sample is pro-seller or, in other words, this contract includes farmer friendly terms.  Additionally, there is no one-size-fits-all type of contract, so this sample document must be vetted thoroughly before use. Please have your attorney review this document in full before deciding if the deal structure laid out in this agreement makes sense for any particular transaction. All use of the Sample Master Purchase Agreement (Pro-Farmer) is subject to the Terms and Conditions of Use.



 A services agreement is a contract to provide a service or to hire a service. The most common services agreements we see in the California cannabis context are where the distributor or the manufacturer do not take title to the farmer’s cannabis and, instead, perform distribution services or manufacturing services. In such a scenario, the farmer is legally hiring the distributor (usually as an independent contractor) to perform services, such as pickup, storage, lab testing, and so on.


 Many transactions we encounter today are hybrids of a purchase and service agreement, in that the distributor will pick up the cannabis, store it, and perform lab testing, all as a “service” to the farmer (with resulting costs being deducted from the farmer’s sale price), with an additional agreement to buy the cannabis after the lab testing comes in.  Although this is common today, it is often wise to parse out the two agreements into separate documents, i.e. a services agreement and a purchase agreement, so that everyone’s roles remain clear.

The most common difficulty in these types of hybrid purchase/sale agreements is where the distro is hired to perform trimming services, but does not perform the trimming services to the farmer’s quality standards. In such a case, who pays for the loss to the value of the product caused by the distro’s terrible trim job? The way most of these types of deals are currently structured, the farmer has to accept that loss, which would be less likely if the two different relationships (i.e. the service relationship and the buy/sell relationship) were clearly laid out.


 Any time a farmer’s name or logo is used on a jar or a subsequent product, intellectual property agreements are in play, whether the parties realize it or not. If the distro or manufacturer intends to use the farmer’s name or logo, the agreement between the parties (i.e. the purchase agreement or the services agreement) should address whether the buyer can use the farmer’s name or logo.

For more complicated agreements such as a co-branding type of arrangement, such as where the farmer’s name or logo will be prominently displayed, it may make sense to use a totally separate licensing agreement. However, if the use of the farmer’s name or logo will be less prominent, such as where the farmer’s name and license number will be printed on the back of the jar for attribution (i.e. giving credit), then these more simple agreements can be added to the underlying purchase or services agreement.

Don’t forget that use of a farmer’s name and logo can increase the value of a product. As such, additional consideration (i.e. money) to the farmer for use of their intellectual property is always on the table (in other words, it’s totally acceptable to ask for more money if the distro is going to use the farmer’s name or logo to sell the product).


Confidentiality agreements are common in business and can be used wherever two parties are beginning to engage in discussions regarding a potential sale. We often suggest adding a standard NDA to a party’s initial due diligence document review procedures when vetting a potential buyer or seller, so that this protective measure becomes more commonplace in the industry.  At minimum, every California cannabis company should have a standard NDA on hand.


Although there are as many types of contracts as there are ways to structure a transaction, these are the most common agreements California cannabis entrepreneurs will encounter on a regular basis, so it’s wise to be familiar with them.

Huge thank you to Virginia Ryan, my co-author in this blog series whose experience in transactions has been invaluable. I’m deeply grateful for all the knowledge you dropped.

Additional thanks to my business partner and legal guru, Sarah Smale, as well as Lauren Mendelsohn at the Law Offices of Omar Figueroa, Jeffrey Hamilton of Farella, Braun, and Martel, Shay Gilmore of The Law Office of Shay Aaron Gilmore, and Holly Carter of Oxalis Integrative Services all of whom reviewed the sample purchase agreement and gave valuable insight, in addition to Virginia Ryan. I’m deeply grateful.

Happy harvest all. Please stay safe. ~hb

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Intellectual property is a type of law that sets the rules for laying claim to the creations of your mind. Cannabis appellations, i.e. the program which communicates to a consumer that a product’s essence is due to its unique region of production, falls under the ambit of intellectual property.

Intellectual property is one of the most complex, fascinating, and critical areas of law, particularly in today’s zoom-call driven world where internet and electronic connection rule the day.  Cannabis farmers looking to start a cannabis “appellation of origin” in their region must take the time to develop a thoughtful strategy for the ownership and use of their most precious intellectual property (“IP”) asset: the appellation name. Here’s a quick overview of the IP assets in play in cannabis appellations:

Ownership of Cannabis Appellation Intellectual Property

While no two situations are ever identical, it is likely that the appellation ownership will be structured as an entity (an LLC, a corporation, a Mutual Benefit Corporation, a B corporation, a Social Purpose Corporation, a state nonprofit, etc.).  The founding members of the appellation (the three or more unique businesses as dictated by the draft regulations) will likely be the owners of the appellation name. It is also likely that the ownership of the entity will be the respective farmers’ operating companies, though not necessarily.

There is an open question as to how newcomers to the appellation will be authorized to use the appellation name.  In any event, once compliance with the appellation’s standards is established in the appropriate manner, a seal or certification mark could be used, and/or the appellation name could simply be used on the label. These very important procedural question may be up to the appellations themselves depending on their goals.

Lack of Certification Marks

In a perfect world, an appellation entity would also seek a certification mark for the appellation’s standards and practices from the state or federal government. Certification marks, however, do not currently exist in state law, and cannabis farmers can’t access federal certification marks because of cannabis’s Schedule 1 status.

For now, farmers seeking to use an appellation name will need to establish that they meet the appellation standards. The specific process for proving that the farmer meets the appellation’s standards will depend on how the request to use the appellation name is made and whether meeting the appellation’s standards is acknowledged by contract or simply by use of a certification mark or seal.

While the lack of certification marks does present logistical issues for cannabis appellations, the example of Napa Valley may be helpful. Napa Valley is a different type of appellation that was granted by the government in 1980. However, Napa Valley did not seek a certification mark until 2011, over two decades later, and even then, the certification mark was not successfully granted until 2015. The implication is that, while certification marks are important, cannabis appellations will be able to build the appellation’s brand using the appellation name only, so cannabis appellations should not be substantially held back by the current lack of complimentary certification marks.

Thankfully, numerous appellation policy groups are working to include cannabis-certification marks in further statutory or regulatory cleanup packages, so we should see certification marks applied to cannabis far sooner than they were applied to wine, at least in the Napa Valley.

Use of the Intellectual Property

In any event, once the farmers meet the appellation’s standards of use, that farmer may use the appellation name on their products.  The farmers’ will presumably be tasked with protecting their own farm-specific name and logo through trademark or copyright protection, as applicable.

Due to the anticipated use of both an appellation name and a farm name on a product’s label, we can expect to see regulations or agreements arise regarding “conjunctive labeling,” which is labeling where the county, appellation, and any smaller appellation may or must also be listed in addition to the farm’s name.

Defining Other Terms Used in Labeling

Finally, it is unclear whether common labeling terms such as “regenerative” or “single batch” will be included in the name of the appellation, or will arise from certification marks, or from policy changes, but we can expect to see exciting developments in that area in the coming years.

What You Can Do

In closing, cannabis farmers seeking to start an appellation need to be thinking about the following IP assets, who owns them, and how they should be used in labeling or marketing the cannabis: (1) an appellation  name or the name of a geographic region that is likely to become an appellation, (2) the farmer’s farm-specific name or logo, and (3) labeling terms such as “regenerative,” or “estate grown.”

Wise farmers hoping to start an appellation should have a comprehensive plan to address each of these critical components of a successful intellectual property strategy before filing for their appellation petition.

As the state’s 15-day comment period for its current round of cannabis appellation regulations draws to a close today at midnight, please get involved! One of the biggest concerns seems to be the state’s favorable characterization of reputational-based appellations, which works against the terroir-baseline recently imposed by statute. We thank the following trade and/or policy organizations for taking a front seat in this quick-moving policy development and ask interested parties to reach to the following groups for further information and to assist with comments:

Thank you to Shabnam Malek, one of the best intellectual property lawyers in the cannabis space, for co-authoring this blog with me. Please stay safe all!

Heather Burke (Origin Group Law LLP)

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Shabnam Malek (Brand & Branch LLP)

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Antitrust Issues in California Cannabis Purchase Agreements

Antitrust laws are a set of state and federal laws that prohibit business practices which impede competition on the theory that aggressive competition ultimately benefits the consumer. In other words, when businesses compete to sell something, the consumer wins, or so says the theory which underpins these laws anyway. 

Antitrust issues are predominantly applied to mergers and acquisitions, i.e. when a larger company purchases or assumes a smaller company. Thankfully, many smaller sized farmers in the Emerald Triangle and Nevada County have been able to resist selling their companies to bigger conglomerates or shaving off majority ownership to venture capitalists. Thus, the antitrust issues relating to cannabis-related mergers and acquisitions are less pressing in California’s cannabis agriculture industry, though antitrust issues still show up in cannabis-related transactions, such as purchase agreements and sales-related business activity. 

The biggest antitrust vulnerability in California cannabis agriculture is “price fixing,” or “an agreement among competitors that raises, lowers, or stabilizes prices or competitive terms.” In human terms, that means everyone has to determine their own prices without making any agreements with competitors. 

Price fixing most often occurs “horizontally,” where two or more competitors agree to sell their product for a set price. I always cringe whenever I hear someone say, “we should all hold at $1000 this year!”  because that statement is arguably an invitation to fix prices. While there are some exceptions to antitrust laws, the rule against horizontal price fixing is set in stone and is considered “per se” illegal. 

Price fixing can also occur “vertically,” such as where a producer agrees with someone further up the supply chain to fix a price. For example, because of this prohibition, producers and resellers were not allowed to agree to a mandatory minimum price floor for sale of the product to the consumer; hence, we got  the “manufacturer’s suggested retail price,” or “MSRP.” The rule prohibiting a mandatory minimum price floor was actually invalidated in 2007, meaning that a producer and reseller may agree to a price floor to the consumer if-and-only if the agreement would not be an unreasonable restraint on competition, which is determined on a case-by-case basis (READ: run it by your counsel). 

As an aside, it is insane to me that under the U.S.’s scorched-earth version of capitalism, our rural producers cannot band together to set a minimum price that would allow a modicum of economic and environmental sustainability, but that is the nation we live in and those are the rules under which our businesses operate. Despite antitrust laws purporting to protect the consumer, they have unsurprisingly benefited large corporations who can use antitrust laws to keep agricultural producers from organizing to mandate living wages. I am hopeful that at some point in the future, there will be a watershed moment in this nation where ridiculous laws that harm rural communities will be mitigated or negated, such as the prohibition on price fixing among rural producers, but we are not at that moment yet. Please vote, support your local trade and policy organizations, and elect candidates who take these issues as seriously as we must. Until the rules are changed, they must be followed. 

Must respect,

Heather Burke


Contract Farming: the Good, the Bad, and the Ugly


I am honored to be quoted in Marijuana Business Daily’s article “Contract cannabis farming gaining popularity in California, but practice draws lawsuits,” discussing the various ways folks can lawfully structure their businesses to meet the needs of a volatile cannabis market. Since the topic appears to be hot, an overview of the legal logistics might be helpful. 

First, the article referenced “sharecropping,” a type of agreement popularized during the Reconstruction Era (i.e. post-slavery) where predominantly Black farmers were rent-owing tenants. The landowner was able to unilaterally demand “agreements” wherein farmers received a share of the crops rather than a share of the profits, and would become indebted to the landowner if the yield was less than the rent. In that way, sharecropping was an early and brutal form of ensuring the systemic oppression of Black farmers after slavery. 

Today, however, the “bargaining power” between landowner and a potential contract farmer are often quite the opposite. Indeed, farmers in the hills were first to run out of cash due to the exorbitant land-use costs associated with legalization, causing the downstream bankrupting of entire communities throughout rural California. Unlike land barons of the Reconstruction south, Northern California’s rural landowners were the first to be thrown to the land-use wolves while venture-capital backed conglomerates swept up swaths of land in the Central Coast and Central Valley where land-use quagmires were reduced or negated entirely.

Of course, market volatility and our industry’s dangerous penchant for handshake deals make these agreements inherently vulnerable to predation by the party with greater bargaining power. Thus, the deal MUST be in writing, and the compliance issues (regulatory, labor law, etc.) must be fully thought through. Here’s a few legal issues to keep in mind: 

1.  California Law Expressly Allows Cannabis to be a Lawful Subject of a Contract.

We start the analysis from the premise that cannabis is a lawful subject of a contract. (Cal. Civl. Code §1550.5.) This law opened the floodgates for cannabis businesses to engage in lawful business, including any number of relationships framed by the economics of a transaction. However, with great opportunity comes great responsibility, and these deals are now subjected to all applicable laws, most notably California’s stringent labor laws. More about that below.

2.  All Deals Must Be Strictly Compliant or the Deal Is Off

The regulatory analysis is simple: the deal is compliant or the deal doesn’t happen. Thankfully maintaining strict compliance is not rocket science, as the parties must simply disclose their relationship in whatever manner is required. In the recent Caliva v. Toast Holdings et al., trial court case out of Santa Clara (the first case that I am aware of that discusses the regulatory disclosure requirements in a civil action), the court relied on BCC “Guidance” to note that licensed cannabis businesses may contract with unlicensed businesses in certain circumstances. (P. 10.) However: 

“The unlicensed business is not permitted to share in any royalties or a percentage of profits or revenue of the licensee unless disclosed as an owner or financial interest holder of the license.”  (Caliva v. Toast Holdings Inc. et al., Order Granting Plaintiff’s Preliminary Injunction. March 5, 2020. Santa Clara Sup. Ct., No. 19CV343016.) 

This ruling is consistent with the white labeling analysis provided by the BCC in 2019, which states:

“The Bureau has learned that some licensees may be conducting commercial cannabis business at the direction of non-licensees who may be considered to have an ownership or financial interest in the commercial business and should thus be reported in accordance with sections 5003 and 5004 of the regulations.” (FSOR, p. 19.) 

Again, it’s not rocket science: just disclose and move on, or don’t do the deal. 

3.  These Deals Require Significant Due Diligence

As the litigation matters discussed in the MJ Biz Daily article make clear, pernicious (often venture-capital backed) license holders may prey on legacy farmers who did not have access to licensure. Check out our prior blog called “Snakes in the Grass: Due Diligence and the Proper Vetting of Potential Deals” for more about how to reduce risk by choosing someone trustworthy to do business with.  

At the risk of redundancy, if the other party refuses to disclose or be disclosed during your due diligence discussions, drop it like it’s hot and find another deal, or be at risk for the types of worst-case scenarios discussed in the MJ Biz article

4.  These Deals Are Subject to Labor and Employment Law.

In the Old World, a worker who was to be paid at the end of the season was vulnerable to getting ripped off by disgruntled property owners who could blame a low yield on the worker. Thankfully, this wage-theft is almost impossible in the New World, since non-owners are almost always considered employees entitled to the sweeping protections of California’s employee-friendly laws. We view this as a GOOD THING because it protects laborers from being preyed upon. 

The party performing the labor cannot be deemed an independent contractor unless the rules of AB-5 apply, and misclassification is grossly unwise. However, some folks prefer employee status for various reasons, including mitigating or negating “products liability” and “joint and several liability” which may apply to an independent contractor or sweat equity employee, depending on the circumstances. 

Thankfully the other half of our law firm is an employment law guru, Sarah Smale, so stay tuned for a detailed blog on Farm Labor Contractors (“FLCs”) in the cannabis farming context that is due out soon. 

5.  Thinking Through Insurance and Risk Allocation is Critical

An additional layer of complexity relates to insurance and workers comp issues, since an independent contract laborer hired by a licensee may have trouble getting cannabis-specific workers comp. However, while dual employer liability cannot be waived by contract, those risks and liabilities can be shifted via indemnity clauses and related risk allocations.  

Additionally, each party obtaining their own insurance policies could cause a battle of insurance companies, should third-party liability arise. Instead, the existing policy holder can usually add the other as an “additional insured” and reduce risk of contentious dispute.


If structured appropriately, contract farming arrangements can provide a lifeline to struggling farmers by allowing landowners to meet the overwhelming demands of the regulated system, and by allowing a legacy farmer to get their foot in the regulated door. And our industry needs more legacy farmers in the marketplace, that is for damn sure, so creative (but strictly compliant) contracts should not be overlooked as a means to the ultimate end of rebuilding a thriving cannabis agricultural ecosystem for our rural regions. 




PART 4 Of 5:

The Business Fundamentals Every California Cannabis Business Should Know: CONTRACT FUNDAMENTALS

OR “Dude, Where’s My Indemnity Clause and Other Super Fun Terms Every Cannabis Business Should Know” 🙂 

As California cannabis entrepreneurs are increasingly relying on written agreements over handshake deals, a primer on common terms may be helpful. Notably, business owners/operators who have a working knowledge of these terms will be better able to negotiate deals, enter into agreements, and address contract disputes. Particularly in our volatile emergent industry, those businesses who fully understand the terms they are binding themselves to will be better protected in their business dealings and, as such, may be more likely to survive this difficult transition period. Here’s the rundown:

The essential terms (aka the “material terms”) form the crux of the agreement, usually money for product, or money for services. It often makes sense to begin the contract with a clear description of these agreements, because that’s the point of the contract in the first place, right? Importantly, however, a contract consisting only of these terms is nothing more than a “purchase order,” meaning the parties don’t have any agreements about what happens if one party can’t hold up their side of the bargain.

Thus, the essence of the agreement should also include, at minimum, (1) what happens if the money isn’t paid or comes late, (2) what happens if the product or service is delivered late or is unsatisfactory, (3) the “term” of the agreement (i.e. a recurring deal or one-time thing) and (4) how the contract can be terminated.

In our view, a delegation of the requisite  regulatory responsibilities is also an essential component of cannabis-related contracts to ensure strict compliance with applicable laws.

Written agreements commonly shift inherent risks from one party to another, depending on the economics of the deal. The most common risk allocation terms are (1) indemnity clauses, (2) limitations on liability, and (3) insurance requirements.

Indemnity Clauses
Indemnities are where one party assumes the risk (i.e. costs) of a loss potentially incurred by the other party. Indemnities are usually tethered to losses caused by the indemnifying party, but some folks sneak in broad language requiring one party to cover the other for unrelated losses, so be wary.

For example, some common distribution agreements ask farmers to indemnify the distributor for issues with the “composition” of cannabis flowers, which may make sense because the farmer grew the product. But if damage occurred after the product left the farm (such contamination caused by grading/sorting on the distributor’s dirty machines), then an indemnity makes less sense.

Another example is in the white-label manufacturing context.  A brand owner who contracts with a manufacturer for producing a product under the owner’s brand may reasonably require that the manufacturer indemnify the brand owner for product liability claims.  However, if the brand owner requires the manufacturer to use specific formulas or processing methodologies, the manufacturer may want to exclude from its indemnification obligation liabilities caused by compliance with the brand owner specifications where a COA was obtained.

Since an indemnity clause can have massive financial repercussions if a deal goes south, no one should sign off on an indemnity clause without understanding what the heck it actually means in the real world.

Limitations on Liability
Contracts often include a liability “cap,” meaning one party will “cap” the maximum damages the other party is entitled to, often irrespective of fault or the total actual damages. However, limitations on the types of damages are also common, as one party may agree to “direct damages” (arising as a direct result of nonperformance), while seeking to limit “consequential damages” (arising as an indirect result of the nonperformance).

The following example may be helpful:

A distributor agrees to pre-pay for $50,000 worth of cannabis, but the cannabis delivered is unusable. The “direct damages” consist of the $50,000, but the “consequential damages” would include the distributor’s lost profits (which at 100% markup would be an additional $50,000), for a total loss of $100,000.
Thus, if a farmer’s entire season is riding on a single deal, and nonperformance would result in the farmer’s inability to fund the next season, those folks may not want to agree to consequential damage limitations.

Also be careful when a limitation of liability clause attempts to cap the other party’s indemnification obligations.  For example, if a manufacturer in a white-label agreement promises to indemnify a brand owner for product liability claims, but then limits its indemnification obligations to the amount of fees the manufacturer was paid by the brand owner under the agreement, a brand owner could be significantly exposed to product liability claims that are the result of the manufacturer’s wrongdoing.

Insurance Requirements
Insurance is a great way to shift risk, as insurance can pay losses the parties may not be able to cover, which is extremely common in California cannabis. Particularly for products liability, the benefit of a contractual insurance requirement cannot be overstated.

Representations and Warranties
“Reps and warranties” are the factual assertions one party makes to the other, such as “Seller represents and warrants its operations strictly comply with all applicable law and regulations.” Although reps and warranties do far more than allocate risk, they are a great way to minimize risk by requiring the other party to declare basic assumptions.

In addition, representations and warranties can detail a receiving party’s expectations about a product or service, such that if the representations and warranties are not met, the receiving party can clearly reject the product or service and either not be liable for the contract price or be entitled to a refund.


Although no one wants to think about what happens if the deal falls through, wise business operators will include dispute terms in their agreements. Here’s a few of the most common:

Choice of Law and Venue
Most folks want to be governed by California law because no one wants to be defending a cannabis contract under federal rules. Locking down the venue (aka the County) is wise too, as farmers and distros/manufacturers are often in different locations. Getting a venue closer to home is often ideal, particularly if the home court is friendly to cannabis.

Mediation and Arbitration (“ADR”)
Mediation/arbitration clauses are designed to keep folks out of court. Mediation is generally non-binding, meaning the mediator facilitates a discussion but the parties are not bound. Arbitration, on the other hand, is a more formalized process the parties usually agree to be bound by.

Particularly in cannabis, where there is no shortage of odd or novel disputes, alternative dispute resolution (“ADR”) requirements can be helpful.

Force Majeure
A “force majeure” event is something beyond everyone’s control, such as  fire, pandemic, and riots, all hot button issues in today’s world. This term excuses the parties from performance when something truly unexpected happens. In light of volatility in our market, wise entrepreneurs will not leave this clause out of their written agreements.

In closing, courts look to the “intent of the parties” as reflected in the language of the contract in adjudicating contract disputes, meaning the company’s owners and/or operators themselves must understand what they are binding themselves to. While attorneys are helpful to negotiate and prepare the contract, the onus is on industry, i.e. the businesses themselves, to have a working knowledge of these terms and how they affect later disputes.

Stay tuned for the final piece of this series, “Contracts Overview: What Paper to Push?” which will include a sample Purchase Agreement! Make sure you’re on our email lists:

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2020 Enforcement (PART 1): An Overview of Anticipated Cultivation Enforcement Issues


Although enforcement of unregulated cultivation will likely shake down under the same set of laws as last year, this blog is intended to offer an updated overview of the issues in play this season. To be clear at the outset, it’s likely to be ugly. 

First “abatement letters” will likely continue to be the primary avenue for enforcement this season. Notably, while one can mitigate the possibility of neighbor complaints by being a good neighbor, the abatement letters more often arise from the use of intensive satellite surveillance, sometimes imperfectly

Second, we can expect the National Guard to return to support various local task forces, which often include the Sheriff, agents from the Department of Fish and Wildlife and from the State and Regional Water Boards, and usually flanked by local Code officers. As with the past few seasons, the raids will likely continue to focus on specific watersheds and work their way out using powerful satellite imagery.


Any of the agencies involved in a raid can and often will institute their own “case,” meaning one raid can result in several “cases.” For example, the property owner or onsite worker may end up with a criminal case, a DFW case, a Water Board case, and a local Code case. 

Keep in mind that a “case” can be opened by simply mailing or even posting abatement-related notices. Thus, while raids are undeniably scary, this new brand of multi agency raids often result in the same or similar consequences as with abatement letters, i.e. the property will be thrown into environmental compliance and code compliance (“red tagging”), a process which requires engineers, biologists and other environmental consultants, often with costs in the several tens of thousands. 

It is important to note that environmental and code cases are generally considered “administrative,” as opposed to criminal, meaning fines or penalties are often withheld to assess whether a property owner is willing to come into compliance, though they’re all a little different depending on the agency. Here’s a snapshot of the primary agencies’ procedures: 

  • DFW/Water Boards: The environmental agencies will often EACH open a separate “case,” meaning there are three separate agencies coordinating various aspects of the compliance (in addition to local agencies). The environmental agencies usually hold off on imposing fees until they’ve determined whether the property owner is going to “get in compliance” or not. The process of satiating three environmental agencies can be costly and time consuming, but they are also authorized to impose astronomical penalties for noncompliance, so getting in compliance is often the least expensive alternative. 
  • County Code Officers: Code officers will usually “red tag” or “cite” the property for building and related violations of the local code. Counties are authorized to immediately impose fees under a new state statute (Govt. Code 53069.4) that I discussed in last year’s enforcement blog HERE, though many jurisdictions wisely do not and allow 3-10 days for an initial statement of compliance. Instead, most jurisdictions send “warning letters” that threaten massive fines if someone does not come into compliance within the time period. 

The sad result of the current code-related enforcement regime is that it penalizes small family farms while allowing those who are more risk-tolerant to game the system by treating these fines as a mere “cost of doing business.” This inequitable application of the same set of enforcement rules is the primary reason Sarah and I chose to discontinue our administrative defense practice at this time. Please check out Part 2 of this 2-part blog series for more about that decision. 

  • The Sheriff: Sheriff’s deputies evaluate the situation for potential filing of a misdemeanor/felony case, and will be asking questions relating to sales, interstate shipping, and so on. Remember the collective/cooperative law is DEAD, meaning the primary defense for unregulated legacy farmers will be personal use, a defense not available to demonstrably commercial unregulated grows. 
  • National Guard: The National Guard will likely be present this year, offering military-grade surveillance, helicopters, and related support. Keep in mind the National Guard is the only military force allowed to enact war-like response on our nation’s own citizens, and they were most recently deployed to squelch protestors’ First Amendment rights. I am not sure if these issues will bleed over into cannabis, but I do believe the unprecedented use of the National Guard in the last few years is notable and concerning. 


Due to the new application of these laws, there is little legal precedent, meaning we can expect significant litigation where individual liberties and unregulated cannabis cultivation intersect. Although we will certainly see new and exciting legal defenses to these types of cases, most folks do not want to be a test case. It is expensive, cumbersome, and is oftentimes a losing battle. 

As always, outdoor/sungrower family farms will take the brunt of seasonal enforcement measures because they are immobile, their lives inextricably linked to the earth on which their farms sit, sometimes for more than one generation. Enforcing on legacy farms is particularly troublesome in light of the state’s three-year eligibility prohibition for anyone who gets cited for unregulated commercial cannabis activity. While I’ve heard tales that the governor and several legacy-producing Counties are developing various grant programs to help bring legacy farms into the regulated fold, these programs won’t be in effect during this growing season.

We are grateful so many trade and policy organizations have made access to the market a primary policy objective because the penalties for unregulated activities are heavy and ever-increasing. If you want to see change in these rules, please support your local trade and policy organizations. Here’s a few of our favorite: 

Stay safe. ~hb

2020 Enforcement (PART 2): Origin Group Law LLP’s Statement on Enforcement Related Services


I have decided to handle the enforcement season differently this year, in that we are referring all administrative enforcement matters to outside attorneys and will not be taking on any new non-emergency enforcement matters this season. While we reserve our right to make exceptions for former cannabis prisoners,  people of color, women and others who have not  had access to the regulated market, we believe our firm’s unique talents are better focused on rebuilding a workable regulated marketplace for California’s legacy producing regions, most notably Nevada County and the Emerald Triangle. 

The last few months allowed us the clarity to realize that I do not enjoy working in front-lines enforcement any longer. As there is no shortage of exceptional attorneys who are excited to take on the novel areas of enforcement law in this New World regime, we’re confident this decision does not harm our community due to lack of legal support, and it offers the best allocation of our firm’s talents.  

We will, however, continue to work on enforcement related policy however and wherever we can, which includes supporting CalNORML, the International Cannabis Farmers Association, and our local trade organizations, such as Nevada County Cannabis Alliance and Humboldt County Growers Alliance, if and when we are asked. 

Legacy-producing regions are in the midst of a culture crisis, exacerbated by prohibitionist land-use policies, fire danger, and a pandemic. Some see these as insurmountable barriers to success (for those with access to the market in the first place). However, I instead choose to see this as an opportunity to figuratively burn down the hyper-regulated and environmentally degenerative model of regulated cannabis production enacted by MMRSA in 2015 and to instead demand the enactment of a system that values family farming, radical inclusivity, and regenerative production models. 

We must recognize and admit our industry (and more specifically, California cannabis agriculture) is dominated by white males, many of whom I love dearly and will forever respect as highly ethical businessmen. However, white privilege is often on grotesque display in enforcement work, as the very rules that allow predominantly white males to “blow it up” in the hills (often using undocumented and other marginalized communities as underpaid laborers) are the same rules by which California’s black and brown communities have been criminalized. The indisputable presence of tired economic tropes imposes upon our community a duty to identify and reform or eliminate policies which have historically excluded most of California’s cannabis community from creating meaningful wealth via California’s cannabis industry

Thus, our firm is renewing its aggressive support of a regenerative cannabis ecosystem that includes people of color, women, cannabis warriors, and others who have historically been excluded from the regulated system. More concretely, I will continue to provide pro bono and affordable legal services to businesses and organizations that support these missions. We will also increase our free/low cost community education resources where we focus on best business practices and–my favorite–transactions (i.e “deals”). 

Transactions, in my mind, are each unique opportunities to create and maintain long term sustainable wealth for my clients and for our communities. Supporting those who–to date–have not had the opportunity to achieve economic freedom in the infancy of their new enterprises is one of our highest honors. We take our role seriously because we understand the importance of their success in the greater scheme of creating generational wealth where it has not previously existed. 

The importance of transactions to the long term viability of the cannabis farming community becomes even more critical when we consider that these specific transactions are for cannabis, a plant which heals the human who consumes it and heals the earth it was grown in. The plant itself will no doubt be an effective tool in healing the broken economic system in which the plant is currently produced and distributed. 

In closing, we are grateful to have a community that supports our good work over the years, and values our authenticity in how we choose to perform it.  

Much respect and please be safe out there. 



The Importance of Terroir-Based Cannabis Appellations (VIDEO!)

California Cannabis Folks,

We’re happy that CDFA’s comment period for the cannabis appellation program is drawing to a close next Wednesday, May 6th. In honor of the impending deadline, I thought a quick refresher on the importance of a terroir-based program might be helpful to close out these last few days of the comment period.

A terroir-based program is simply a program that requires there be an essential link between the quality or characteristic of the cannabis and its source. No causation (or essential link) is required for California’s “County of Origin” cannabis marketing program, for example, which allows cannabis to be marketed as produced within a County if the product was produced within the County boundaries.  A terroir-based appellations of origin program, on the other hand, requires cannabis farmers to substantiate that the quality of the cannabis is essentially due to the unique biophysical or cultural factors applied during production. The heightened controls result in a increased consumer trust, and thus fetch a higher value in the market, returning that value to the farm and supporting a vibrant cannabis agricultural ecosystem.  

To be sure, terrior-based appellations are a complicated concept, but they are CRITICAL to the future of California cannabis farming. We’re fighting for our life here. So if you want to know more about what a terroir-based program can do for the cannabis farmers, check out the video or the slides below.

Finally, if you are just gaining interest in the program, yay! Please get in touch with your local trade or policy organization who have been working on this program for years. Considering the historic nature of this program, it is imperative folks do not submit comments to CDFA that have not been vetted by stakeholders in legacy producing regions, so please reach out to the following organizations ASAP and get involved:

Please stay safe and healthy out there. With the utmost respect,

~Heather Burke

ALERT! CDFA Issues Draft Cannabis Appellation Regulations: 45-day Comment Period Begins

By Heather Burke and Anne Kelson

Yay! CDFA’s cannabis appellation-related regulations were finally released on February 20, 2020, and at first glance it appears CDFA understands the critical importance of this program to cannabis farmers throughout the state, but the agency still needs further education to shape a meaningful program. Here’s a quick overview: 

1.  Appellation petitions are slated to cost about $20,000. Since fees can not exceed the costs to run the program, the higher-than expected price tag likely means CDFA is anticipating a rigorous petition review process and/or significant program oversight.

2.  Petitions must be filed by a minimum of at least three (3) or more unique businesses, meaning one business with three licenses cannot file a petition. Collaboration with at least two other businesses is required, which we would love if it were clear the three business could not be owned by a single parent company. CDFA indicated that they came up with the requirement of three or more business members in order to be compatible with statutory co-ops, which have the same requirement of 3 or more members.

3.  Petitions will be reviewed by CDFA and potentially a seven-person panel. Panelists must have experience in cannabis cultivation, intellectual property, sustainable agriculture, or community-based research, which we find encouraging. 

4.  The CDFA rejected using either the AVA model (used for wines in the U.S.) or the AOC model (used in France), and instead has proposed a new appellation standard for California cannabis. The petition requirements are vast, so here are a few of the biggies which must be included: 

a.  A description of the quality, characteristic, or reputation of the cannabis produced within the appellation which is caused by a distinctive geographical feature. Geographical features affecting cannabis cultivation will likely require significant biophysical data, such as climate information (temperature, precipitation, wind, fog, and solar orientation), geological information (underlying formations, earthquake fault lines, flood lines, etc.), physical features of the land (bodies of water, watersheds, mountain ranges, etc.).

b.  A definition of the standards, practices, and cultivars to be mandated within an appellation area, and identification of at least one which acts to preserve the distinctiveness of a geographical feature and maintain its relevance to cannabis cultivation.

c.  Evidence of the legacy, history, and economic importance of cannabis cultivation for the appellation area. 

d.  A list of license types which are prohibited from using the appellation of origin (i.e. Indoor, Mixed-light Tier 1, etc.). In other words, the CDFA effectively punted the controversial issue of who is included by requiring petitioning groups to explicitly state which license types are excluded. 

e.  Evidence of historical name use, including a detailed explanation of how the name has been used in the geographical area of the proposed appellation, evidence of name use from sources independent to the petitioner, and evidence that the proposed name is “directly’ associated with an area in which cannabis cultivation exists. Name evidence can include historical, government or commercial maps, books, newspapers, tourism promotional materials, local business or school names, and road names, among others.

f.  Maps and boundary description, including a depiction of the proposed boundary on USGS topographical maps, with a scale large enough to show adequate detail of the proposed boundary line, as well as an exact boundary of the appellation of origin featured clearly on the map without obscuring the maps underlying features.

5.  As expected, trademarks that conflict with appellation names will need to be phased out within 3 years of the date an appellation with a conflicting name is approved by the state, as appellation names will trump existing trademarks (after the 3-year sunset period). After that, use of conflicting trademarks will be considered false advertising. 

Big Picture Takeaways 

Based on the draft language, the regulations impose a rigorous evidentiary burden on appellation petitioners, potentially requiring significant historical, scientific, engineering/mapping, and related support. Petitions could take months or years to prepare, and could be voluminous.

Importantly, the petition process could be far more effective and long-lasting if done in collaboration with other farmers in the same region, as numerous appellations could be mapped out, defined, and petitioned for in one fell swoop. The importance of mapping the major and minor appellations with the broader community prior to submitting petitions cannot be overstated. 

We strongly encourage licensees to include unregulated farmers in community discussions about mapping the legacy regions, as it is more-likely-than-not that an increasing number of farms will come online in the coming years. The decisions we make about these petitions will affect the cannabis communities in legacy-producing regions for generations to come, so they have a right to have a seat at the table while we’re figuring it out. The authors of this blog believe this component is a moral imperative. 

Call to Action

The public has 45 calendar days in which to submit comments on these draft rules. However, rather than submitting comments in a vacuum, we strongly encourage all interested parties to reach out to their various trade and/or policy organizations and submit comments in a coordinated manner. 

Here’s a non-exhaustive list of the organizations who we expect to be submitting comments. If we missed your group, please let us know and we’ll add you to this list STAT. 

We also encourage any lawyers who are interested in this issue of critical importance to join the International Cannabis Bar Association

Based on the language in the draft regulations, CDFA understands this program has the potential to set global precedent, but it is up to cannabis farmers to define what that looks like in practice. If done right, we can hand the cannabis appellation program down to our children and future generations, so please engage! 

Co-authored by:

Heather Burke, Nevada City, CA 

Anne Kelson, Oakland, CA

California Cannabis Appellation Presentation: Tuesday, January 21st, noon-1 p.m., Nevada City


I’m giving my first presentation on California’s new cannabis appellation program tomorrow in Nevada City. I’m pretty excited about the program and about this presentation, so I hope you can come out!

Tuesday, January 21, 2020 Noon to 1:00 p.m.

Location: Nevada County Superior Court, Law Library, 201 Church Street, Nevada City. **Arrive by 11:45 a.m. to complete registration and payment. Cost: $15 Public or $30 for Attorneys (MCLE credit).

Here’s an overview of the presentation to get you interested in this historic issue. Enjoy!

An Epidemic of Farmers Going Unpaid: Strategies for Going After Your Money

By: Heather L. Burke

Many of California’s licensed cannabis farmers recently transferred their cannabis to distributors on terms the distributors did not meet. As if the licensing game wasn’t hard enough, many of the 2019 cultivation licensees were in year 1 or 2 of a three-year plan to recoup costs and get out of the red. Failure to get paid not only hurts the family farm’s ability to survive, but when farms can’t afford to invest in their businesses, it hurts their ability to thrive.

I’ll be honest. Due to the volatility in California’s cannabis market, some of those farmers ain’t never gettin’ paid. The farmer can take the most aggressive measures legally available and sometimes ya just can’t squeeze blood out of a turnip. The only way to guarantee payment is to get paid up front, cash on delivery (“COD”), or in most cases, upon pickup from a licensed transport distributor. But holding out for a COD sale means waiting to get paid, and that’s risky too, as the market ebbs may bring an earlier round of light deprivations (deps) next spring, keeping prices lower than usual in the spring and early summer. It’s the California cannabis market, so anything can–and usually will–happen.

Due to the risk inherent in holding out, many farms front their product to distributors or manufacturers with an agreement, whether written or oral, that the farmer will be paid at some point, usually within 30, 60 or 90 days. I’ve blogged extensively about what should be in those contracts (here , here, and here) so I won’t reiterate it here, but it’s important to note that oral agreements are binding in California. While a written (and signed) contract is advisable, a farmer can legally collect on an oral agreement.

Here’s a few things to think about when a distro (or other licensee) hasn’t paid up:

  1. Seeking an Attorney’s Advice Sooner, Rather than Later

Unless you are an experienced business person with a comprehensive understanding of causes of action and statutes of limitations (and many farmers are), those farmers who haven’t gotten paid should see an attorney as soon as you know the distro isn’t paying up. And not just any attorney, but a civil litigator with experience in litigating contract disputes.

In our law firm, I write the contracts to keep our clients out of disputes and our civil litigator, Sarah, tags in if a dispute arises. Sarah knows those rules better than I do, and it is critical that my clients meet with someone who has the depth of experience in litigation to properly analyze the facts and potential claims.

An attorney doesn’t necessarily need to be retained to fight the case, as many lawyers will consult with a farmer to go over their rights. In any case, when a farmer leaves the attorney’s office, they should know (1) the basic procedure for going after the money, (2) the potential causes of action against the party that didn’t pay up, and (3) the important statutes of limitations (i.e. how much time someone can take to decide whether to go after the party for the unpaid money or not, which is shorter for oral agreements).

Importantly, seeing an attorney can also help properly document the dispute, which could become critical evidence in the future. That way, if the farmer take six months or a year to see if the market changes and the distro can pay the full balance of what they owe, the farmer doesn’t lose the right to collect in the future.

  1. Demand For Payment Letters

The first step in moving towards litigation is usually talking to the other party and seeing what’s up. Sometimes they can’t pay and sometimes they won’t pay. There is a difference and that difference must be part of the strategy for how aggressively the farmer goes after the money.

If informal conversations go nowhere, the next step is to send a formal demand for payment, aka a “demand letter.”

Demand letters are all about strategy. Before sending one off, there should be a game plan based on the unique facts of each situation. For instance, some distributors have enough money to keep a few of their connections happy, yet let their other accounts go unpaid. There, the farmer may want to send a “we-want-to-continue-to-work-together” style of demand letter designed to maintain the relationship. A more aggressive demand letter might be the strategy where the distro is likely never going to pay, such as those cases where the distro makes an affirmative statement declining to pay, or where the distro is shutting their doors and may soon be “judgment proof.” In unusual cases, the strategy may be to skip the demand letter entirely and go right to litigation. It all depends on the particular facts of the situation.

However, before tossing out some hastily-drafted demand letters in fake legalese cobbled together by a friend who claims to have “paralegal experience,” farmers should know the weaknesses and strengths of their case, and they should tailor a letter with an eye towards a thoughtful plan. Sending a crappy demand letter can make the sender look like they aren’t taking it seriously, a tactic more likely to be ignored than be rushed into the debtor’s attorney’s office in a state of panic (which may be the goal in many instances).

Since a formal demand can tee up a potential legal challenge, invest in the letter. The initial legal research and strategy should happen before one starts making demands, rather than waste money fighting a losing challenge or defending an unforeseen counterclaim.

  1. Alternative Dispute Resolution

In written agreements, clauses requiring a party seek mediation or arbitration are often included as a mandatory component. This process is called “Alternative Dispute Resolution,” and it can be a powerful tool for farmers who are not getting paid per the terms of a written agreement.

For oral agreements, the parties have to agree to engage in ADR, which may be tough for a distro that is close to going out of business themselves (and is already planning on taking your money to the grave with their business losses).

However, they may be more (or less) willing to negotiate after a demand letter, so the strategy can change again with regards to negotiating or mediating a debt after sending a demand letter.

  1. Commencing Litigation

To be clear, going to court to recover an unpaid debt is usually the worst case scenario. Getting that far often means the distro didn’t keep their word to pay the farmer, and that is disappointing for a variety of reasons. Litigating (i.e. suing) can be stressful and the farmer has to spend money for the chance of getting paid.

Some companies keep attorneys on payroll to defend against these kinds of cases and will litigate the farmer to death as part of their strategy to bleed out the small guy. Additionally, the smaller (more often more values-based) law firms can’t cushion the litigation by taking the case on contingency, so litigating can be an expensive and time consuming loss, even when the farmer ultimately wins.

Unfortunately, understanding the cruel realities of Big Business’ greedy practices is part of the educational experience here, and the pain of a few lost accounts may increase a farmer’s willingness to hold out for COD next time.


In conclusion, knowing what to do when an account doesn’t pay up on time is part of doing business in the no-holds-barred style of aggressive capitalism we practice in the United States. While I’d love for it to be different, its not. At least not right now.  That is why its beyond critical our state’s small and mid-sized farms maintain their valuable position in the regulated marketplace, so being aggressive about getting paid may be the difference in staying in business for those teetering on the brink of extinction. Please stay strong. We need you.

With your success in mind,

Heather L. Burke


*Sorry we haven’t blogged in a while. I got carried away with the busy harvest season and have been spending a lot of time researching and writing about cannabis appellations, my current passion project. If you want to hear more about appellations, I’ll be giving an in-depth talk on California’s Cannabis Appellations Program (and related business issues for appellation farmers) for the Nevada County Law Library on January 21, 2020, from 12:00 noon to 1:00 p.m., at the Nevada City courthouse. (More about that HERE.)

I’ll release the presentation slides via social media in advance, so be sure you’re following us on Facebook or Instagram. See you there!

Heads up! CDFA Regulations Prohibit Transfers of Cannabis During Power Outages

Clients, Community, Friends, Family:

Please note that “transfers” of cannabis to a distributor are prohibited whenever access to the track-and-trace system is down. (See § 8402 copied below and online HERE.) If someone relies on grid power to access their METRC system, then they may not transfer any cannabis to a distributor, even if that distributor is their own self-distro transport license (Type 13). 

Of course, while access is down, folks are required to “prepare and maintain comprehensive records” detailing the movement of any cannabis on their site, such as moving immature plants to the canopy area, harvesting-related activity, and any cannabis waste. Additionally, folks must also document (1) the date and time when access to the track-and-trace system was lost, (2) when it was restored, and (3) the cause for each loss of access.  

Once back online, that information needs to be uploaded to METRC within 3 days after power is restored. 

If lack of power is causing an inability to comply with any of the regulations, including but not limited to track-and-trace, please note that “sudden and severe energy shortage” may qualify for disaster relief under CDFA’s regulations. If that applies to you, check out § 8207 HERE for your next steps.

Please be safe out there! At least this is great training for how to run a compliant cannabis farm during a zombie apocalypse, so there is an upside!


*Huge SHOUTOUT to the folks at Oxalis for putting this issue on all our radars, and to Law Offices of Omar Figueroa for reminding us of the potential for disaster relief.

#teamworkmakesthedreamwork #risetogether #protectourfarmers

8402. Track-and-Trace System.

(e) If a licensee loses access to the track-and-trace system for any reason, the licensee shall prepare and maintain comprehensive records detailing all required inventory tracking activities conducted during the loss of access. 

(1) Once access to the track-and-trace system is restored, all inventory tracking activities that occurred during the loss of access shall be entered into the track-and-trace system within three (3) calendar days. 

(2) A licensee shall document the date and time when access to the track-and-trace system was lost, when it was restored, and the cause for each loss of access.

(3) A licensee shall not transfer cannabis or nonmanufactured cannabis products to a distributor until such time as access to the system is restored and all information is recorded into the track-and-trace system.

El Dorado County Opens for Cultivation Permits Up to Two Acres and All Other License Types (GO SIERRA NEVADAS!)

By: Heather Burke

The County of El Dorado recently enacted an ordinance authorizing all commercial cannabis license types, including cultivation, manufacturing, distribution, testing, and retail, which is super exciting for the Sierra Nevadas. This blog focuses on the process for cultivators, who can obtain up to two (2) acres of commercial cannabis permits, depending on their parcel size and zoning. Here’s the lowdown: 


  • There are 150 total permits, 75 of which are reserved for outdoor and mixed light operations that are less than 10,000 sq ft of canopy.
  • 40 of the 75 smaller cultivation licenses are reserved for 3,000 sq ft gardens that is “grown exclusively with natural light and meets organic certification standards or the substantial equivalent.”
  • The zones in which cultivation may occur are (1) Rural Lands (“RL”), Planned Agricultural (“PA”), Limited Agricultural (“LA”) and Agricultural Grazing (“AG”).
    • RL properties are eligible to use up to 1.5% of their parcel for cultivation, but may not exceed 10,000 sq ft of canopy.
    • AG, LA, and PA properties between 10-15 acres are eligible to use up to 1.5% of their parcel for cultivation, but may not exceed .45 acres of canopy.
    • AG, LA, and PA properties between 15-25 acres are eligible to use up to 1.5% of their parcel for cultivation, but may not exceed 1.5 acres of canopy.
    • AG, LA and PA properties greater than 25 acres are eligible to use up to 5% of their parcel for cultivation, but may not exceed 2 acres of canopy.
  • The setback is 800 feet from the property line and 1500 feet from schools, which may knock out a bunch of properties. Folks can get around this setback in some instances if they owned or leased the property before November 1, 2018.
  • Parcels under 10 acres are not eligible for permitting.


The application is a full Conditional Use Permit [“CUP”] process, meaning there will be a public hearing on the application. More about CUPs generally HERE. The main thing to know about CUPs is that they are “land use” determinations, which is great in that the permits will “run with the land,” thus increasing the value of the land. However, they are complex, time consuming, costly, and decisions are made on a case-by-case basis depending on the site particulars.

Secondly, El Dorado’s “pre-application” is not yet available, but is expected to be released on September 30. While the Code gives us some insight into what will be required, there are likely to be additional requirements standard in any CUP process, such as an NCIC letter or biological summary, that are not mentioned in the cannabis code. Here’s the rundown of the basic applications requirements:

  • Entity applicant information, including articles of organization/incorporation, operating agreement/bylaws, stock agreements, and “any other funding sources for the applicant.”
  • Written consent of the owner of the parcel (which may be you as an individual leasing the property to your LLC or corporation), which must be signed in wet ink and notarized within 30 days of the day the application is submitted.
  • A Site Plan showing the entire parcel, including (1) easements, (2) streams, springs, ponds, and other surface water features, (3) the area for cultivation in dimensions, (4) setbacks from property lines, (5) all areas of ground disturbance and surface water disturbance, and (6) any areas where cannabis will be stored, handled, or displayed.
  • A detailed diagram of the premises, including buildings, structures, fences, gates, parking, lighting and signage;
  • Various written plans, including (1) a Theft Prevention/Access to Minor Plan, (2) an Operating Plan, (3) an Organic Certification or Equivalent Plan, (4) a Security Plan;
  • For any hoophouses/greenhouses/proposed structures, all applicable building permit applications, which may include commercial plans that show ADA access
  • Most land use applications require an archaeological and biological inquiry. Expect that to be part of the application;
  • A copy of the entire state license application, which for some will be copies of multiple state license applications for different “small” licenses because the large (i.e. one acre+) licenses are not available from the state at this time. Each state license application includes the following, as well as a surety bond for each license type:
    • A Water Board permit;
    • A Waiver Letter or Lake & Streambed Alteration Agreement from the Dept of Fish and Wildlife (which can take months);
    • A Property and Premise Diagrams for each separate license;
    • A Well Completion Report from the Department of Water Resources;
    • The EIN/Seller’s Permit Info for the applicant entity;
    • A Lease/Rental Agreement and Landowner Authorization.

Notably, all applicants will have to indemnify the County, consent to a background check, and agree to inspections without a warrant, in addition to a host of other attestations/waivers/agreements.  


The County has deferred the required environmental impact analysis to the farmer, which is a huge cost, but will likely allow them to get up and running far sooner than if the County had performed a full Environmental Impact Report.

If someone does not have a CEQA consultant already on retainer, be prepared for a shocking price tag. One can usually expect the CEQA consultants to get overburdened and for projects to get put on a wait list if not at the front of the line. Additionally, both the state and County mandate that CEQA be complete before operations can begin, so I fully expect more than a few licenses to get held up next season because of the lack of a completed CEQA document.


In summary, the list of requirements will be far longer and more cumbersome than what anyone expect. While the applications may scramble once the pre-application is released, those who are working on their diagrams, CEQA/environmental compliance requirements, and have an operating company ready to go will likely be at the front of the line.

I’ll be at the El Dorado Growers Association meeting next Friday, October 3, 2019, at 6:30 p.m. discussing the application, with a focus on entity startup considerations. Hope to see you there. 🙂

Now go get ‘em, Sierra Nevada farmers!

ALERT! CA Governor Newsom signs new law TODAY making it harder to use independent contractors

By Sarah Smale

Just hours ago, Governor Gavin Newsom signed AB-5 into law, which is designed to: 

“[E]nsure workers who are currently exploited by being misclassified as independent contractors instead of recognized as employees have the basic rights and protections they deserve under the law, including a minimum wage, workers’ compensation if they are injured on the job, unemployment insurance, paid sick leave, and paid family leave.” 

This new law makes crystal clear that California will NOT tolerate misclassification of employees as independent workers. The new law goes so far as to say the ”misclassification of workers as independent contractors has been a significant factor in the erosion of the middle class and the rise in income inequality.” Wow!

To be sure, the State of California via AB 5 has made a clear declaration of public policy–the state intends to protect workers who miss out on basic protections as a result of improper classification.

The ABC Test

As a quick refresher on the rule, Dynamex v. Superior Court, a 2018 court case, already established the three-factor “ABC” test for claims arising under the wage orders and Labor Codes. The ABC test assumes the worker is an employee. To show the relationship was actually that of an independent contractor, the hirer must prove the worker:

  • If free from the control and direction of the hirer as to performing the work (both under the contract and in fact);
  • Performs work outside the usual course of the hirer’s business; and
  • Is customarily engaged in an independently established trade or business of the same nature as that involved in the work performed.

In other words, most true independent contractors will be folks like a bookkeeper, the company who is hired to construct a building, or others providing a service different from what the farmer or cannabis operator does, which is something the contractor also does for others.

For farmers looking to bring in temporary help for the upcoming harvest–this distinction is critical. Even if someone will only be at the farm a few weeks, if they are engaging in work central to the cultivation operation, this is arguably an employment relationship, particularly if the farmer is overseeing the work.

Put ‘Em on Payroll

Wage claims are not claims a small business can afford to lose–there are multiple penalties for worker misclassification, ranging from a straight-up first-offense penalty of $5k-$15k for willful misclassification, to paying all the taxes that should have been withheld. Misclassification almost always means the hirer failed to maintain records required for all employees, and frequently results in a failure to ensure proper meal/rest periods and overtime policies.

The fallout from worker misclassification is a real and serious business risk–a risk no wise operator should take. And as of today, the State of California has made it abundantly clear that misclassifications are going to be taken more seriously than ever before.

~Sarah Smale
Co-Founding Partner
Origin Group Law LLP

PART 3 of 5: The Business Fundamentals Every California Cannabis Business Needs to Know: VETTING DEALS

Snakes in the Grass: Due Diligence and Proper Vetting of Potential Deals

By Heather Burke and Virginia Ryan

Considering the collective/cooperative model did not always allow sellers to vet buyers by anything more than word-of-mouth, today’s operators have a greater ability to vet those with whom they do business. Although business deals can and will still go sideways in the regulated era, licensees undoubtedly have more options in choosing business partners who give the deal a greater chance at success. When vetting a potential deal partner, I usually ask:

(1) Who are the potential deal partners (like, really, who are they?); and

(2) Will the deal benefit our goals?

Determining Who the Potential Deal Partners Are:

When figuring out who you’re about to do business with, I usually look at three areas: (1) regulatory vetting, (2) business vetting, and (3) the old school gut test.  Here’s a quick rundown of the first two:

1.  Regulatory Vetting

The law is clear that “all commercial cannabis activity shall be conducted between licensees.” 3 C.C.R. § 5032 (a). That means that a potential deal partner must have an active license from the State of California for the type of activity they will be providing to you.

For instance, if a manufacturer is offering to pick up your product, they will need both a manufacturing license and a distribution (Type 11) or transport (Type 13) license. Smart operators will utilize the BCC, DPH, and CDFA license search features to verify the validity of each license that will be involved in the deal and double check the validity of all relevant licenses prior to each transaction.

While each party has a duty to keep their licenses valid, and that representation or warranty should be included in any written agreement, that does NOT absolve the other party of the regulatory violation that would occur if they entered into a transaction with a party that did not have a license. As such, there is no substitute for double checking prior to each transaction.

2.  Business Vetting

Business vetting can also be called “due diligence,” both of which simply refer to the reasonable initial steps a wise operator will take in order to determine whether the company with whom they want to do business is trustworthy.  Here’s a non-exhaustive list of questions that you need answers to when determining whether they are worthy of your trust:
    • Is their entity filed properly on the Secretary of State website? Was the Statement of Information(s) filed timely?
    •  If they do business under a trade name, do they have a DBA on file in the County where their principal place of business is located?
    • Does the person you’re speaking with have “the capacity to bind the entity?”
    • Are written agreements acceptable?
    • Do they have references of people with whom they’ve done similar transactions?
    • Do they have an appropriate level of insurance based on the transaction?
    • Are they financially sound based on their financial statements or a due diligence call with the CFO?
    • What does an internet search or social media search tell you about the business and their founders or key personnel?
    • What do their facilities or operations look like?  Do guests go through a security protocol?  Is the facility organized with confidential documents appropriately safeguarded or does it look like a dorm room?

For some businesses, gathering this paperwork upon a request may be a struggle. If so, that is a strong indication the more complex negotiations required to engage in business at this level will make success almost impossible. Act accordingly.

Determining Whether the Deal Benefits Your Goals:

Desperation breeds lopsided contracts, meaning that a business desperate for a quick buck is more likely to accept unfavorable terms, which in turn increases the risk of a total loss. Instead, engage in the existential analysis regarding whether the other party shares your values and your vision, or can benefit your long term goals in the marketplace. Here are some examples:

  • Aligned Values: For example, if regenerative practices are important to your business model, do you want to do business with a company that does not value regenerative farming or does not employ sustainable practices themselves?
  • Longevity:  Is this a one-time event only, or are you setting up a longer term agreement? If it’s a one time thing, there is a greater chance of risk that it’s a cash grab by the other party.
  • Co-Branding: Is the other party open to having your logo and information on the final product, so that your company benefits from an increased brand identity? (*If building your own brand is your goal.)
Closing Thoughts
It is interesting to note that hyper-successful entrepreneurs invariably trust their intuition when vetting potential deals. Just as in the old world, sometimes you know a dud is a dud, so knowing when to walk away can be just as critical to one’s success as locating a potentially profitable deal. You got yourself to this point, which is historic in-and-of itself, so don’t be afraid to trust your instincts!
Much respect, ~hb

**PS, keep a lookout for the final two blogs in this series:

PART 4: Contract Fundamentals: Dude, Where’s My Indemnity Clause and Other Super Fun Terms Every Cannabis Business Should Know

PART 5: Contracts Overview: What Paper to Push? (+ Sample Contracts)

Make sure you’re on the email lists!

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*This is a communication from a lawyer, but it does not constitute legal advice, nor does it create an attorney-client relationship. This is intended for educational purposes only. Please contact an attorney for specific legal advice.

The Momma Blog: The Rules About Children on a “Licensed Premise”

By Heather Burke

I’ve been asked several times about the ability to have children at one’s regulated commercial cannabis business, and the question always reminds me of those days when my girlfriends would strap their babies onto their back and get to work out in the garden. Sadly, those days are long gone and the new rule is clear:

No one under 21 is allowed on a “licensed premises” at any time.

No Rules Under the Collective/Co-op Resulted in Discriminatory Application of Child Welfare Rules.

Under the old rules, commercial cannabis activity was “unregulated,” meaning there were no rules except (1) the cannabis had to be cultivated, processed, or distributed to patient-members of a (2) collective or cooperative that (3) was not engaged in a profit making enterprise. Without rules for children, the primary consideration  was whether the child would suffer physical harm as a result of the parent’s inability to physically care for the child. (Check out the brilliant Jen Ani’s overview HERE.)

In most cannabis cases, the child was not at risk of harm unless the child had easy access to cannabis, or where there was inherent danger in the cannabis activity itself, such as with BHO manufacturing. However, due to the lack of certainty in the rules and cannabis discrimination by child welfare workers, application of the standard was often dependent upon the particular CPS’ worker’s view on cannabis. Unsurprisingly, I observed wealthy white parents treated with far more deference than African American and Latino parents for identical conduct, which is unacceptable on every level.

The New Rules are Clear: No Kids On the “Licensed Premises”.

California statutory law now clearly restricts a licensee from allowing anyone under 21 years of age from entering “its premises,” except that someone over 18 can enter a medical dispensary if-and-only-if they have a physician’s recommendation. (Cal. Business & Professions Code § 26140 (a)(2), (c)(1)-(2).)

Interestingly though, the regulations are less clear. Indeed, the regulations only address minors being on a retailer’s licensed premise, though none of the three regulatory packages address the effect of a child being on a farm, a manufacturing site, a distributor, testing lab, or microbusiness’ “licensed premise.” Nor do any of the three regulation packages set out a penalty for violating this statute

Thus, while it is not yet clear to me what a violation of the statute would look like for a licensee, we can presume it is a serious violation with severe consequences for the license holder.

When the Property is the Same as the “Licensed Premise”

Keep in mind that when you submitted your annual or temporary license application to the state, you had to submit a Property and/or Premises Diagram. If the Property and the Premises in those diagrams is the same, then your entire property is considered the “licensed premises.”

The legal effect of not carving out any non-cannabis areas in your Property Diagram is:

  1. Children are now arguably excluded from the entire property; and

  2. Law enforcement can arguably search an entire “licensed premises” without cause. (*This  is a whole other topic I won’t get into here.)

Thus, for those folks with children on site, it is imperative they re-define their licensed premises to exclude the home and the places children will be. For sites with homes on them, it is as simple as drawing the “premises boundary” around the home. For industrial or commercial sites, a break area or other safe space for a nursing mother to bring her child can sometimes be carved out of the “licensed premises” floor-plans.

Child Welfare Rules are Still in Effect

Although this blog focuses on the rules regarding children in “licensed premise,” note that child welfare rules relating to use of cannabis in the home or around children are still in effect. As such, child welfare workers will continue to hold preconceived notions about cannabis use, so wise parents will continue to ensure their children do not have access to the parents’ personal-use cannabis and that parents don’t consume cannabis near the children.

Final Analysis/Conclusion

Gone are the days of carrying babies in slings while mama and papa work the garden.

However, as CAMP-style raids and law enforcement actions against unregulated operators are already at a feverish peak this summer, regulated farmers and other licensees with young children can rest in the peace of knowing their business (and their family) will make it through the season unscathed by deputies arriving at 7:00 a.m. with a warrant.

For most families, that trade off will be worth it.

Much respect,


PART 2 of 5: The Business Fundamentals Every California Cannabis Company Needs to Know: CLEANING YOUR OWN HOUSE, Regulatory Compliance & Entity Governance  

By Heather Burke and Virginia Ryan

As Virginia Ryan and I discussed in the first of our 5-part business blog series, “The Business Fundamentals Every California Cannabis Business Needs to Know,” one of the first steps to doing business is to ensure you have your own house in order. Sorry to tell you this, but people in business get sued and, yes, someone may try to take what you spent your lifetime to build. A successful business will be prepared for those situations before they arise.  In order to gauge the cleanliness of our clients’ houses, we often ask the following questions of potential clients:

1. Are your cannabis business operations strictly compliant with all state and local regulations?

Compliance includes recordkeeping for any sale of your product, maintaining those records in a particular way, and reporting certain information to the state regarding sales, and so on. If you do not know the recordkeeping rules, you may be compliant in certain ways, i.e. your farm operations could be set up in a compliant manner, but you’re not compliant with your records (and the records are one of the primary issues the CDFA will be most concerned about).

2. Are your entity’s governance documents in order, including appropriate resolutions and a workable procedure for making resolutions?

This article presumes the reader is strictly compliant with local and state laws, which require you to have a valid license, a Seller’s Permit, and an EIN. But many farms don’t have those documents organized on the farm in an easily accessible place, which they’re required to be for regulatory purpose.

Equally as important, if the farm got sued for some aspect of a potential sale, would the entity protect you or would the entity’s “veil” be pierced? In other words, can someone sue the farm and get the personal assets of the owners (such as the land)? Here’s what courts will be looking for to determine whether someone can take your personal assets:

  • Does the corporation have executed bylaws and minutes of the Board of Directors and Shareholders (for LLCs: does the LLC have an executed operating agreement?)?

  • Are you current on your state filing requirements (i.e., Statement of Information with the California Secretary of State) and franchise taxes with the California Franchise Tax Board.

  • Is the type of business you want to conduct included in the “purpose” language in those documents (or in a resolution, which is where our firm often places the purpose language for access to banking). Note: purpose language can be important.

  • Do you and the company have separate “personalities,” meaning do you treat your company as a different and distinct entity from yourself? If you own the property, do you have a lease between yourself as the landowner and with your corporation or LLC? Do you keep separate financial records and separate bank accounts? Do you do business in the name of your entity or in your own name?  Do you personally offer to “guarantee” the debts of the company (:i.e. “I got you bro.”)?

All of those are factors California courts may look to in determining whether the relationship between you individually and you as an owner of the company are truly “arms-length,” i.e. strictly professional.

In addition, to these basic requirements, there are a host of other items that you should implement in your business, such as obtaining a state or federal trademark for your brand, obtaining commercial and product liability insurance, executing buy-sell agreements with the owners to protect the business in the event a partner wants to leave, implementing confidentiality agreements with all consultants and employees, implementing appropriate terms and conditions for your website presence, to name a few.

If you’re new to business, this may seem like a lot to think through, but these are the BASICS required in order to enter into a business transaction, particularly where the product is federally prohibited, carries stiff mandatory minimum penalties, and the only defense is strict compliance with local and state law.

This may sound like a lot, but no need to worry, we will discuss these items and more later in our blog series, including:

Blog 3 of 5: Snakes in the Grass: Due Diligence and Proper Vetting of Potential Deals 

Blog 4 of 5Contract Fundamentals: Dude, Where’s My Indemnity Clause and Other Super Fun Terms Every Cannabis Business Should Know

Blog 5 of 5: Contracts Overview: What Paper to Push? (+ Sample Contract Templates)

Much respect, ~hb


        To sign up for Virginia Ryan’s blog list, go here:

        To sign up for Origin Group LLP’s blog list, go here:

This email is a communication from a lawyer, but it does not constitute legal advice, nor does it create an attorney-client relationshipThis is intended for educational purposes only.

Please contact an attorney for specific legal advice. 

Cannabusiness Bosses: Labor & Employment Issues in the Regulated Era, Part 2: Hiring, Special Situations, and Wage & Hour Basics By Sarah Smale

Cannabusiness Bosses: Labor & Employment Issues in the Regulated Era

Part 2: Hiring, Special Situations, and Wage & Hour Basics

By Sarah Smale

This is part two of our Cannabusiness Bosses series, covering hiring, special situations, and wage & hour basics. 

Part 2: So, you’re an employer. Now what?

Employers must comply with employee reporting, tax withholdings, and wage and hour requirements. Front-end compliance is key because California does not play when it comes to employee protections.  Penalties add up fast and are often more expensive than the cost of paying overtime, giving mandated meal/rest breaks, and otherwise following the rules.

Hiring Basics

When you hire someone, you must report the employee to the Employment Development Department (“EDD”), gather multiple documents, and provide various brochures. You also have to display a labor poster (or binder) somewhere employees can easily access.

The required forms and brochures can be gathered online at the EDD’s website, which provides tons of great information. Read through the 2019 California Employer’s Guide to learn more than you ever wanted to know about being an employer.

Special Situations

I am often asked about non-traditional working relationships, such as employing family, casual labor, and volunteers. Don’t fall into the trap of believing these types of workers are categorically exempt from reporting and tax requirements. They are not!

While family members may be exempt from some (but not all) types of taxes, you still must report their employment. More importantly, family exemptions do not apply if the employer is a corporation, LLC, or other business entity.

Temporary or short-term workers are still employees. If the work is not in the course of your regular business, you must report casual laborers as employees if you pay them more than $50 and they worked at least 24 days in the preceding or current quarter.  If the work is in the course of your regular business (such as seasonal trimmers), these employees must be reported regardless of pay or how long they work.

As for “volunteers,” simply dubbing someone a volunteer is not a solution. True volunteers “perform work for a civic, charitable, or humanitarian reason” for public agencies or qualified corporations. Cal. Labor Code § 1720.4.

Wage and Hour Requirements

Employers must comply with wage and hour laws, including minimum wage, overtime, and meal/rest breaks.  Cultivation workers are not considered agricultural workers by the Department of Industrial Relations. Instead, MAUCRSA expressly places them under Industrial Welfare Commission (“IWC”) Wage Order 4-2001, so the overtime requirements are similar to office workers.

Employers must familiarize themselves with this wage order (and post it at the job site). It covers everything from overtime, tools of the trade, and lodging credits.  Read IWC Wage Order 4-2001 here. There are also tons of rules regarding when you have to pay an employee (you cannot wait until harvest), mandatory record keeping, and information wage statements must contain.


If you fire someone or they quit with more than 72 hours’ notice, you need to pay all wages owed on their last day.  Cal. Labor Code  §§ 201, 202.

Potential Fallout

Employees owed wages can file administrative wage claims relatively easily, and there are lots of attorneys who happily take these cases because they’re easy to win. Countless Labor Commissioner hearings have taught me these generally go in the employee’s favor, particularly when the employer did not maintain records.

The regulatory agencies take labor violations seriously. Violations in the past three years must be reported in your annual application, and post-licensure violations must be reported within 48 hours. 3 CCR §§ 8102(i)(15), 8204(c)(3).

Closing Notes

The best way to avoid headaches is to create an action plan before hiring.  Gather the documents you need. Pay the taxes you owe. Create a mechanism for workers to communicate concerns. Create  your system and stick to it. 

Next time—workers’ compensation: who needs it, who can be exempt, and what it will cost.

Sarah Smale
Founding Partner, Origin Group Law LLP

Unregulated Cannabis Cultivation in California: A 2019 Enforcement Overview

I’m often asked to advise on enforcement-related issues because of my past life as a criminal defense litigator, but enforcement is my least favorite subject. The reason is simple: conducting our lives based on the stringency of potential enforcement is NOT a viable business model. Although it may take a few years for unregulated grows to get pushed out (or worse, get pushed indoors), one thing is clear: the only meaningful path forward is strict compliance with state and local law.  

But since unregulated activity remains a hot topic, here’s a quick and dirty overview of the new world of enforcement:

There is NO legal protection for unregulated commercial cultivation.

The Collective and Cooperative as we knew them since 2004 are DEAD. In fact, this is the first season since the Compassionate Use Act in 1996 where there is no clear defense to unlicensed commercial cultivation. While unregulated commercial activity is a straight misdemeanor, conspiring to commit a misdemeanor is a felony, as is misdemeanor cultivation occurring in conjunction with an environmental crime.

Also, as this is the first season under the new rules, it’s within the realm of possibilities we see aggressive criminal enforcement on unregulated mom-and-pop farms. It is also possible law enforcement take a more measured approach by focusing on cartel grows, environmental degraders, and interstate interdiction.  

We just don’t know.

The fines/penalties are higher than ever and some properties may be foreclosed.

The biggest change to the penalty structure since last season came from a quietly-made change to Government Code § 53069.4, which used to require growers got a “reasonable time” to correct alleged nuisances before fines were imposed. That law changed this past January to allow IMMEDIATE IMPOSITION OF FINES for illegal cannabis cultivation.

Those fines can be levied as a lien against the property if left unpaid and some Counties even have the authority to foreclose on the property to recoup that money.  

Prosecutors and City/County attorneys can seek penalties of three times the license fee for each violation.

The state, the counties, and the cities are all authorized to bring a case against unregulated operators for civil penalties of up to three times the amount of the license fee for each violation. (Business & Profession Code § 26038.) For two unregulated greenhouses, the fine could be 60-freaking-thousand-dollars!! (at $20k yearly fees x3).

While these massive local and state penalties are subject to constitutional protections, you don’t wanna be the case that tests the constitutional limits. It ain’t fun.

The State can kick you out of regulated licenses you’re involved with anywhere in the State.

Getting dinged for unlicensed commercial cannabis activity can kick you out of the state’s licensing program for 3 years, even licenses in other jurisdictions that are totally unrelated.  (Business & Professions Code § 26057(b)(7).)  Local codes may also kick you out of their program, in some cases arguably for life.

Environmental crimes will be enforced like never before.

Environmental crimes are embarrassing because you’re getting called out for hurting Mother Earth, so there’s not love for folks charged with these crimes. Here are just a few:

  • The Water Boards: Knowing or negligent discharge of a pollutant into water without a permit can reap fines up to $50,000 per day for knowing violations,  as can illegal water diversion. (Water Code §§ 1052(a), 13387; Penal Code §§ 374.2, 374.8.
  • Department of Fish and Wildlife: Disposal of trash or “any substance that is deleterious to fish, plant life, mammals, or bird life” into waterways, or failing to obtain an LSAA for eligible water diversions can also bring about fines up to $20,000 per day!  (Fish & Game Code §§ 5650, 5652, 1602, 12025(b)(2).)
  • CalFire: Failure to obtain a Timber Harvest Plan or a waiver can result in a misdemeanor or civil penalties up to $10,000 per day, per violation. (Forest Practice Rules, 14 C.C.R. §§ 4601, 4601.1.)

Unregulated farmers are subject to federal enforcement for the first time since 2013.  

Keep in mind that unregulated farmers do not have protection from federal enforcement under Rohrabacher-Farr Amendment (now called the Joyce Amendment), which prohibits the DEA from coming after state-legal cannabis businesses.

If you don’t have a license, you arguably lose that protection, which is a serious weakness in light of this administration’s uneven take on cannabis thus far.

The penalties will only increase over time.

The Governor’s last incarnation of the trailer bill would imposes fees on non-license-holders of up to $30,000 per violation. So fees for unregulated activity are likely to go up, not down, as we move forward.


I hear a lot of people saying they are going to keep going without a license because “they’ve always done it this way.” But very few folks were growing in these hills prior to 2004. In fact, we’re essentially back in the pre-1996 era for the governing laws and almost no one was out there before 1996. So, no, you have not done this before. No one has.

Unregulated sungrowers (i.e. outdoor and light-dep) are at the greatest risk of law enforcement intervention because they are literally rooted in the earth, sitting ducks in clear view of ever-present helicopters. That means mom-and-pop farms will take the brunt of the criminal enforcement this summer, despite the wild proliferation of far more pernicious activity in garage/warehouse grows, massive cartel grows, and unregulated deliveries selling pesticide-ridden cannabis to unsuspecting consumers.

In closing, the biggest risk of unregulated cultivation is the risk of the unknown.  While some farms may slip through this season, enforcement will only increase in the coming seasons and the word is NOT out in the community about how nasty this season could be. But it is clear that large scale unregulated cannabis farming is a thing of the past. As Jerry Garcia says, its time to move along.

Much respect, ~hb


Musical meditation for this post: Jerry Garcia Band: Ain’t No Bread in the Breadbox .

Cannabusiness Bosses: Labor & Employment Issues in the Regulated Era, Part 1: Employee or Independent Contractor?

Part 1: Employee or Independent Contractor?

With many operators receiving their state license and local permit, it is time to consider business operations.  This blog is the first in a series of articles we’ll be publishing over the next few months focusing on labor and employment law, broken into four parts: (1) who is an employer; (2) employer wage & hour basics; (3) workers compensation; and (4) other issues such as OSHA and farm labor contractors (FLCs). First off, the threshold question:

Who is an Employer?

An employer is defined as:

Any person… who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (Cal. Labor Code 1182.12(b)(3); Cal. Code Regs., tit. 8, § 11040(2)(H).)

From a labor perspective, one of the biggest mistakes businesses make is trying to get around being an employer in the first place.  Most often, this is done by either: (1) paying folks under the table; or (2) classifying workers as independent contractors.

Don’t Pay Workers Under the Table!

This is all bad for countless reasons. Paying workers under the table may meet the requirements for tax evasion if specific elements are met, and can subject you to significant financial liability. If the worker is injured on the job, or you fire them and they file for unemployment, you are in for a world of hurt when they file a claim and you are faced with a payroll audit.

Be Wary of Calling Workers Independent Contractors

One of the most common mistakes I see is misclassifying workers as independent contractors.  Calling someone a “contractor” can be appealing, because you simply pay the worker the agreed wages, issue a 1099, and let the worker handle the tax issues. It’s a tempting short-term solution, but VERY risky business.

California doesn’t like improper worker classifications, and will err on the side of finding an employment relationship in close calls. Employers can be penalized up to $15,000 for “willful” misclassification of an employee for the first offense.  Moreover, having a written “independent contractor agreement” is not determinative.

Right to Control

Exercising control is critical to employee classification, and often overlooked when folks “1099” workers to simplify payroll, overtime, and other employer requirements.  Further complicating things—there are different tests depending on the claims being made. But in almost every test, the right to control the means and manner in which the worker completes their job will be scrutinized.

Wage & Hour Law: the ABC Test

The most common claims employees make are wage and hour violations, because they’re easy to file (they can be submitted via email) and are generally heard in a streamlined administrative setting.

When analyzing whether someone was properly classified as an independent contractor, three factors are evaluated under the “ABC” test. Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. 5th 903, 916-917, 964.  The ABC test starts by presuming the worker is an employee. To rebut this, the hirer must show the worker:

  1. Is free from the control and direction of the hirer as to performing the work (under the agreement, and in actuality); and

  2. Performs work outside the usual course of the hirer’s business; and

  3. Is customarily engaged in an independently established trade or business.

Generally, true contractors will be those you hire for a limited time, or to complete a specific task (i.e.: to build a structure, bookkeeper, etc.)  If you’re not sure, consult with an attorney to ensure you are not misclassifying workers.

So, you’re an employer. Now what?

Once you are an employer, you must comply with wage and hour laws, tax remittance, and workers’ compensation requirements.

For members of the Nevada County Cannabis Alliance, I’ll be leading a detailed discussion on these requirements on the monthly members call this Wednesday, June 19th at 9:00 a.m. More info about that here:

And the next blog in this series, Wage & Hours Basics, will review the most common issues related to proper worker pay.

Stay tuned.

Sarah Smale
Founding Partner, Origin Group Law LLP

Hemp Update: USDA’s Position on Interstate Transport of Hemp and Hemp-Derived Products

As Sarah and I slowly begin to reopen our practice to select new clients (we have not openly accepted new clients for almost 5 full months), we are finding ourselves being called on to answer an increasing number of questions about hemp. Although we blogged about the federal hemp rules after the 2018 Farm Bill was passed last December, metric tons of legal changes have happened since then, including Tuesday’s issuance of the USDA’s “Legal Opinion on Certain Provisions of the Agricultural Improvement Act of 2019 Relating to Hemp,” a release that smashed my legal expectations and I think is a pretty huge deal. Here’s why:

1. A Winner in the Conflicting Application of the 2018 Farm Bill is Emerging.

The 2018 Farm Bill was unclear as to whether its key terms (such as the protection for interstate shipping) applied to hemp and hemp-derived products produced under the currently existing hemp laws, a.k.a. the 2014 Farm Bill. Two federal district courts, in Idaho and West Virginia, came to different conclusions on the application of the 2018 Farm Bill to hemp products produced under the 2014 Farm Bill:

  • In February, the “Big Sky” case held the shipment of hemp produced in compliance with the 2014 Farm Bill may violate STATE LAW where transported through states which do not authorize hemp. The driver in that case, Denis Palamarchuk, was arraigned on the illegal trafficking of over 6,000 lbs of marijuana through Idaho. *His pre-trial conference is set for October 2, 2019.
  • In March, the “Grassy Run” case held that hemp seeds produced in compliance with the 2014 Farm Bill were exempted from the federal Controlled Substance Act and thus no FEDERAL CAUSE OF ACTION could prohibit shipment across state lines.

Based on the USDA’s analysis announced this past Tuesday, the Grassy Run case is emerging the clear winner in the conflict created by these two cases.

2. An Increasing Number of Federal Agencies Seem to Agree.

Since March, several federal administrative agencies have weighed in on the application of the 2018 Farm Bill provisions to hemp produced under the 2014 Farm Bill, by implication or formal legal analysis. These agencies, including the U.S. Department of Agriculture (USDA), the U.S. Patent and Trademark Office (USPTO), and the U.S. Transportation Security Administration (TSA), each decidedly coming to a similar legal conclusion:

While the interstate shipment/transport of hemp and hemp-derived products produced lawfully under the 2014 Farm Bill may not be expressly authorized by the 2018 Farm Bill, the products are exempted from the Controlled Substances Act. 

3. The Lack of Prohibition is Not the Same as the Presence of Authorization.

Thus, the federal agency positions are not based on the express authority to interstate ship hemp, but rather upon the legal effect of deleting hemp from the Controlled Substance Act (“CSA”), a feat the 2018 Farm Bill also accomplished in a separate section. (Compare Section 10114, exempting hemp produced in compliance with the 2018 Farm Bill from interstate shipping prohibitions, with Section 12619, deleting hemp from the definition of “marihuana,” and therefore leaving the production of hemp arguably unprohibited for the moment).  

The legal underpinning for hemp produced under the 2014 Farm Bill (i.e. 100% of the hemp available on the market today) is more a lack of prohibition, as opposed to the presence of authorization, which here proves to be a distinction with a difference sufficient to give numerous federal governmental agencies the legal cover necessary to amend weighty governmental procedures.

  1. The USDA Legal Opinion Takes it a Step Further.

Most importantly, the USDA (a.k.a. the same federal agency tasked under the 2018 Farm Bill with promulgating the regulations everyone is fighting about) surprisingly (to me, anyway) released two documents yesterday which evidence the agency’s legal position on hemp.

Interestingly, one of the documents was a lengthy legal memorandum from the USDA’s own attorneys finding that hemp and hemp-derived products produced in compliance with the 2014 Farm Bill cannot be PROHIBITED BY STATE LAW. This interpretation was based on the grounds the 2018 Farm Bill provisions apply to states that do not have a federal plan under the “legal effect” language, a bold but supported legal analysis.

So What?

This is big. People are being indicted for this, so yeah, this is big.

It is important to note, though, that the USDA is not a federal law enforcement agency, whereas the Department of Justice (“DOJ”) and U.S. Drug Enforcement Administration (“DEA”) or Federal Bureau of Investigation (“FBI”) are. Thus, while the USDA’s civil attorneys may be ready to challenge the legal status quo (perhaps buttressed by the White House’s never-ending scandals), the criminal potentials inherent on the fringes of the federal hemp laws remains firmly in the hands of state and federal prosecutors.

Our nation’s prosecutors are constitutionally mandated to enforce the law as they see it, and while the USDA opinion is powerful in its clear guidance to other administrative and enforcement bodies, it is not a mandatory directive to state and federal law enforcement.

In terms of risk analysis, this does change the game. More importantly, less people will be indicted or sued under vague applications of the law. Clarity is a win-win for all, and Tuesday’s USDA opinion moves us closer to that goal, at least for one manifestation of the cannabis plant.

May the same soon come to all manifestations of the plant.


The Business Fundamentals Every California Cannabis Company Needs to Know: a five-part blog series

By: Heather Burke and Virginia Ryan 


With Nevada County’s recent enactment of its commercial cultivation ordinance, cannabis farmers are scrambling to begin their growing season and to start building their businesses. As the bulk of the regulatory mountain-moving is behind us (for the moment), wise operators should be turning their attention to the business now at hand. And the business at hand today is the nuts and bolts of doing business.

The question of exactly how to do business in our newly regulated industry is largely still being figured out, as the mechanics are just beginning to work themselves out as more and more farms come online. Although we all have some idea of how the new supply chain works, no one has ever done this before (not even folks with regulated farms elsewhere because last season was not tracked-and-traced and NONE of them were in the Sierras).

While there are a lot of vulnerabilities in trying to start a small business in a field that has no operating history, the good news is that we get to write the rules of doing business in our region and for our license types. So, while those first few licensees who pushed through the tribulations of these past two years did suffer greatly, now is the time to reap the rewards by (1) having access to contracts with multi-year terms long before those who took a wait-and-see approach, (2) being able to do business as an industry leader/pioneer, and (3) having a greater voice in policy shaping regarding your business operations, to name just a few benefits.

However, since the scope of cannabis business is so vast and complex, one of my favorite local business lawyers Virginia Ryan has thankfully agreed to co-author this five-part blog series with me, which we’re calling “The Business Fundamentals Every Cannabis Company Needs to Know.”

We will be focusing on the following four areas:

(1) Cleaning Your Own HouseRegulatory Compliance & Entity Governance

(2) Snakes in the GrassDue Diligence & Proper Vetting of Potential Deals  

(3) Contract FundamentalsDude, Where’s My Indemnity Clause (and Other Super Fun Terms Every Cannabis Business Owner Should Know)

(4) Contracts OverviewWhat Paper to Push? (+ Sample Contract Templates)

Our goal is to push each of these out over the next couple weeks to both our blog lists, so make sure you’re signed up!

To sign up for Virginia Ryan’s blog list, go here:

To sign up for Origin Group LLP’s blog list, go here: 

Now let’s do some business.


This email is a communication from a lawyer, but it does not constitute legal advice, nor does it create an attorney-client relationshipThis is intended for educational purposes only.
Please contact an attorney for specific legal advice. 

Nevada County Strong: An Open Letter To Nevada County Farmers

My intuition is telling me they’ll be better days,
I sit in silence and and find whenever I meditate
My fears alleviate, my tears evaporate
My faith don’t deviate, ideas don’t have a date.

J Cole. “Change.” 4 Your Eyez Only.



In October of 2015, I wrote a blog about the pressures farmers endure during trim season, and I recommended farmers take extra care to be kind to each other and to themselves in order to stay true to the honorable work of caring for this plant. During this last mad dash of local and state licensing applications these past few weeks, those words regularly come to mind. Since they are just as meaningful in this strange new season of regulation, I decided to share them again: 

“This is “Game On” time for your entire year’s work.  It is instead the time to be at your highest energetic level, and to put your best energy into this medicine that is about to be released to [consumers] around the state. So take this opportunity to abstain from alcohol or other unnecessary intoxicants if possible, increase your physical activity such as yoga or running, and take that extra moment to love on your partner who has to take care of the house and kids in your absence.”

These considerations ring true once again here in Nevada County, where application-fatigue has set in HARD and folks are visibly wilting under the pressure of looming deadlines, massive data gathering requirements, and what feels like never-ending costs. 

For those who are struggling, please take some level of comfort in the fact this too shall pass, and many of us will look back on this as a time in history where we endured, and overcame the impossible together. Farmers are the genesis. Farmers are the origin. Nevada County NEEDS our local farmers to be economically successful and to produce the products we consume, to the benefit of the entire community. 

So please stay focused on the higher meaning of your work these next few stressful weeks. Keep the reason we were all drawn to cannabis in the first place in the front of your mind. Hug your family, fellowship with friends, listen to good music, and then push this f**king paper though. We’re almost there. Heart up.

Finally, while we can’t do anything to halt the insanity, we can have a PARTY! And since Sarah and I are both hella Irish, it makes sense to host the First Annual OG Law Green Party next Sunday, March 17th, a.k.a. St. Patrick’s Day, at the office. Come out!

OG Law’s First Annual Green Party
431 Uren Street, Suite C
Nevada City, CA 95959
DJ Redlocks will be DJ’ing from 4-7 p.m.!!!
*Family friendly, kids welcome
**Celtic Red from Old Republic on tap (first come/first serve).
***Heather will be manning the bar herself and will be serving green drinks of some fabulous sort.

***Please do not park on the opposite side of the street.  We will have a parking attendant to help point you in the right direction from 4-7 p.m.

What’s On Deck
Our next blog will be a technical analysis of the latest version of the Nevada County draft ordinance with some suggestions for upcoming public comment. Stay tuned.

Much respect,

Heather and Sarah
#protectourfarmers #madrespect 

ALERT! Immediate Need for Letters in Support of SB 67 (Temp License Bill)


Huge thanks from The International Cannabis Farmers Association ( for drafting a sample letter in support for SB 67, the Temporary License bill that would extend temporary licenses if (1) a local authorization was taking more time to be returned to the CDFA, (2) if the Department of Fish and Wildlife LSA is taking a long time, or (3) if the CDFA needs more information from the licensee.

Considering Nevada County’s unique permitting status, it is imperative our licensees don’t experience a disruption in their licences as we move through the local permitting process.   SB 67 will be heard in the Senate Business, Professions and Economic Development Committee on Wednesday, February 27th @ 11:00 a.m.

Senator McGuire’s office has requested support letters be sent to the committee, which means they are due TODAY (Feb 22nd) by 5 p.m.  We know that is not a lot of time, so AS A FREE SERVICE TO THE COMMUNITY, Origin Group Law LLP will help ANY AND ALL licensees prepare and submit their letters today between 1 p.m. to 5 p.m.

You are welcome to stop by, call the office, email us, or send a carrier pigeon and we will get your letter of support out. Here’s our contact info:

Origin Group Law LLP
431 Uren Street, Suite C
Nevada City, CA 95959 
530-955-3184 (office)

Please find attached a sample letter (thanks to the ICFA) and a fact sheet about SB 67. Thank you!

(1) SB 67 Support Letter Stakeholder

(2) SB 67 Cannabis Licenses Fact Sheet

Nevada County: Consider Outdoor Licenses This Season

Nevada County staff recently reminded us what farmers in other areas have known for a couple years: land use issues are the most expensive piece of coming into the regulated system. While many requirements apply across the board, outdoor farmers generally have lower permitting and operational startup costs than greenhouse farmers, sometimes by hundreds of thousands of dollars. As such, farmers who want to ease into regulation may want to consider outdoor  licenses this season (and scaling up to mixed-light later if desired). Here’s a nonexclusive list of the cost differences between the license types:

  1. Commercial Greenhouses are Structures Which Require Permits.  

In addition to permitting the greenhouses (a process which requires engineered plans for the greenhouse and a site plan), the pads for the greenhouses themselves may need to be graded, requiring yet another permit.

Additionally, fire trucks must be able to access all structures, meaning fire-safe roads must go all the way to the GH and allow a fire truck can turn around. Since outdoor gardens are not structures, roads are not needed to the same degree.

2.  Commercial Greenhouses Have Greater Disability Access Requirements.

Greenhouses are structures which must be compliant with the Americans for Disabilities Act [“ADA”], so the greenhouses themselves need to be wheelchair accessible, as do the pathways pathways to the greenhouses.

Farmers expecting multiple runs per year will also likely require more employees than an outdoor farm of the same size, which means they’re more likely to need an ADA compliant bathroom on the farm. As bathrooms can’t be in a private residence, they may require a new septic and yet another permit.

3.  Commercial Greenhouses Require Additional Operational Costs.

A greenhouse can be expensive to purchase and install, so some mixed light farmers expect to incur an additional $100,000 in operational startup costs per greenhouse, an expense not incurred by outdoor. Of course, greenhouses also have monthly energy bills, which ain’t cheap.

4.  Commercial Greenhouses Need Power.

In addition to the power requirements to run the greenhouse (and btw, generators are NOT allowed as the primary power source for greenhouses), farms may need a power upgrade for the type of power that will be required to run the greenhouse. Considering that PG&E just declared bankruptcy, and that they are taking months longer than expected to get power installed or upgraded, power upgrades are a potential holdup for the 2019 season.

Importantly, state regulations require Mixed-Light 2 (i.e. 7-25 watts per square foot of canopy) meet certain energy requirements by January 1st, 2023, or purchase carbon offsets. I have no idea how much the “offsets” cost, but keep in mind it is another steep cost in addition to power not applicable to outdoor (or Mixed Light-1, which is light deprivation/light-assist up to 6 watts per square foot of canopy).

Finally, I just heard the County’s draft Environmental Impact Report may not adequately address the power-source impacts of converting outdoor to mixed-light, which means there could be additional environmental requirements (and more uncertainty) for mixed-light farmers in the future.

5.  Awesome Policy Organizations are Working to Support Sungrowers in the Marketplace.

Organizations like the Mendocino Appellations Project [MAP], the International Cannabis Farmers Association [ICFA], and the California Growers Association are dedicating insane hours to programs devoted to help sungrowers be successful in the marketplace, such as cannabis appellations, the Sungrown Agricultural Commissions, moving light-deprivation back into the outdoor tier, and consumer education campaigns. So stay tuned for that very exciting news.

6.  State Regulatory Fees Can Vary up to $17,000.

In addition to the engineering, permitting, and power cost differences, here are the state’s regulatory fees for the 3 different license types:

Outdoor (10k): $535 (application fee) + $4,820 (license fee) = $5,355 to CDFA
Mixed-Light 1 (10k): $1,310 (application fee) + $11,800 (license fee) = $13,110 to CDFA
Mixed-Light 2 (10k): $2,250 (application fee) + $20,235 (license fee) = $22,485 to CDFA

That’s more than a $17,000 difference in state regulatory fees for the 2019 season alone!

*Those fees need to be paid in full before cultivation can begin, with the exception of provisional licensees who will likely be paying those fees sometime in the early to mid-summer.


While the numbers will surely make sense for some folks based on their estimated yield, their relationships with buyers, and their emergency reserves, the numbers may be impossible for the average small farm. Rather than mimic what happened in Humboldt and Mendo (where the land use struggles proved to be an extinction event for many farms), I’m suggesting folks think critically about the cost differences between outdoor and mixed-light before jumping in this season, even if the ultimate goal is to scale up later this year or next.

We support all cannabis operators of every license type and we are hyper aware that everyone in the industry needs protection from over-regulation. However, it is particularly critical to our region’s success that mom-and-pop farms survive the onslaught of land use costs. Reducing those costs by starting with outdoor is just one of several ways farmers can do that. Whatever you choose, we support you!

Much respect,
Heather and Sarah


Hemp in CA: A Post-Farm Bill Update

After the new Farm Bill was signed into law last month, I keep hearing folks declaring that hemp is legal now. And it is, kinda. While the 2018 Farm Bill did not create a hemp free-for-all, it did create a legal pathway for the production and interstate distribution of legally produced hemp. Here’s a high-level overview for California farmers:

1. What’s the Difference between the 2014 Farm Bill and the 2018 Farm Bill?

The 2014 Farm Bill allowed the cultivation of industrial hemp in a “pilot program” for research. Importantly, the pilot programs can only be conducted by (1) the state’s departments of agriculture, or (2) universities.

In Oregon and Colorado, the state worked with registered cultivators to grow hemp under that state’s pilot program, which was a brilliant workaround to the 2014 Farm Bill restrictions. However, it remained risky for the farmers because that approach arguably left farmers without federal protection for the distribution of their products.

Just last month, however, Congress flipped the script by enacting full tilt legalization ofregulated hemp production and interstate distribution of hemp that is produced in compliance with the 2018 Farm Bill. By its express terms, the 2018 Farm Bill allows the interstate shipment or transport of hemp and hemp products (which includes hemp-derived CBD, as well as hemp seeds). Individual states can’t even prohibit the shipments through their borders This is a notable difference from the 2014 Farm Bill, which does not protect hemp shipments or transport through unfriendly states.

Two HUGE side notes:

  • Folks with drug felonies in the past 10 years are not allowed to participate in the new hemp program.
  • Cultivation outside the regulated program is reported directly to federal prosecutors.

2. When Can California Farmers Cultivate Hemp?

Last fall, California appeared to be headed for a pilot program that would pair the state with registered growers, similar to Oregon and Colorado, when our Legislature enacted SB 1409 in October. However, Congress passed the 2018 Farm Bill only two months later, which widened the allowable scope for hemp cultivation in California. As such, I hope the state is considering legislation to broaden SB 1409’s allowances in accordance with the new federal scope.

In any event, in order to cultivate hemp legally in California, the grower will not need to get a license from the state. Instead, they will “register” with the Ag Commissioner in the County they want to grow in. Registration is currently unavailable until the state finishes its hemp regulations, which it is working on now.

The state won’t give specific ETAs for the program, but I’m optimistic this amazing plant will be under cultivation in our beautiful state by the 2020 season. For the most current hemp regulations updates from the state, you can sign up here:

Since the hemp programs in Oregon and elsewhere were successful even before the passage of the 2018 Farm Bill, many farmers who want to transition into hemp are preparing now.

If folks are interested in farming hemp in California, there is definitely work that can be done now, so talk to your legal advisers sooner rather than later.  

Much respect,
heather b. 

#protectourfarmers #madrespect 

Temporary Local Permits Update

As you likely know, temporary permits for the 2018 cultivation season were finalized this week and it’s not great. Some of the provisions are purposefully restrictive. The language is unclear, contradictory, and messy. The ordinance, at its best, evidences a lack of familiarity with basic provisions of state law and regulations. However, this is the only pathway to the regulated market for farmers this season. Here’s a breakdown:

  • The former rule prohibiting commercial cultivation was stricken and replaced with about 50 new provisions relating to the short-term cultivation for legal sale in the regulated market until our permanent ordinance is enacted next year. They did not touch the sections relating to (1) parcel size, (2) plant count and square footage, (3) setbacks, and (4) zoning, except to delete RA and TPZ. Since those are the same as before and have been subject to much debate, I won’t go into them further here.
  • All existing Code violations must be corrected within 60 days. However, any violations related to commercial cultivation (like unpermitted greenhouses for cannabis cultivation) must be permitted before receiving a temp permit. No exceptions. If farmers are intending to enroll in this program, they may want to file that greenhouse permit like yesterday.
  • The temp permits will be for medical production only. ***The updated emergency regulations allow a medical-only cultivator to sell their flower to an adult-use manufacturer, distributor, or retailer, so the M-only designation is not as detrimental, thanks to the state agencies.
  • Sean Powers, the Director of the Nevada County’s Community Development Agency, or his “designee” will be in charge of issuing the permits. Farmers should expect the rules to be interpreted strictly and for violations to be enforced to the fullest, so please know this program has the power to ruin permitees who divert cannabis outside the program with fines, fees, preclusion from permits for 2 years, and discretionary reporting to the state and even the feds.
  • Self-distribution is allowed, but not mandated, so farmers can drive their cannabis (flower, leaf, pre-rolls) off site to a distribution center, but they will have to get a self-distribution license from the Bureau of Cannabis Control (in addition to a cultivation license from the CDFA) to do so. That may be a costly decision with another set of stringent state regulatory requirements, so please talk to your counsel about the implications of self-distribution this season.
  • Mixed light is allowed, so farmers who time their runs strategically may be able to have two light deprivation harvests in compliance with the program this season.
  • The County will not give an additional 6 or 12 plants for personal use this season (although cultivators will be able to have personal in addition to commercial next season). However, the state does not let cultivators divert from their commercial grow for personal use, even though the County says commercial growers can’t have a personal garden this season.  If a farmer plans on consuming the cannabis she or he produces, please talk to your counsel about how that can be done legally.
  • Cultivators must have a state license before the County will authorize them to conduct commercial cannabis activities, but they are also allowed to have a personal or collective garden of the exact same size until they obtain a state license.  It is a complicated concept, but in essence the requirement to obtain a state license prior to flipping the intent and purpose of a garden from personal/collective to commercial should not hold anything up.
  • In light of the state’s recent update to their emergency regulations, cultivators will need  (1) to submit a cultivation plan, and (2) to have already filed with the state water board, as well as a few other things, in order to even file for a temporary license. If a farmer intends to enroll in the County’s temporary permit program, they may want to start these now or risk delaying state license.
  • Folks with a prior marijuana felony best be getting their Prop 64 re-sentencing petition filed ASAP.

The program looks like it will generally go down like this:

  1. A cultivator can turn in an application on or around June 20th.
  2. There will be a brief review period and then she or he will be conditionally approved.
  3. The farmer will upload the County’s conditional approval into the state’s online permitting system. (My clients will have this ready to go well in advance of getting their hands on the conditional approval.)
  4. The farmer will then receive a temporary permit from the state after 10+ days.
  5. Once that state temp permit is issued, the cultivator is authorized to conduct commercial cannabis activity on site.
  6. Within 30 days, and hopefully after a state license is issued, Sean Powers’ office will come do an inspection to confirm compliance with Nevada County Code, and state law to some degree.
  7. Prior to his inspection, our office will have already performed internal (and confidential attorney-client privileged) inspections of our clients’ site to confirm strict compliance with state and local law, so our clients should not have any surprises at their inspection and can feel good about being in strict compliance.

After all that, cultivators will be good to go for 120 days, although they should expect either or both local and state regulatory bumps to arise immediately.  Our office calls it the “hamster wheel,” and permittees will be officially on it.[1]
Is This Program Right For You?
As attorneys, we’re required to advise our clients to enter the regulated market, but I personally believe that is the wiser choice even if I wasn’t required to. Farmers who enroll and strictly comply will be the first in the County to obtain coveted contracts with retailers or distributors, will be able to legally brand and trademark their products, and–most importantly–will likely develop the relationships with the County and state regulators that will put them in the front of the line for expansion to 10,000 square foot of outdoor, mixed-light, or possibly indoor next year.

Remember Conditional Use Permits (“CUP”) can take 6 months. While farmers who aren’t in the front of the line may be able to apply early next year, but they won’t be able to commence their commercial activities until BOTH the CUP and the state annual license are granted some 6 months later. That could easily take until the end of next summer, and those farmers will not be allowed to have current cultivation on site next year (because both the local and state temporary licenses will be unavailable to them by then). However, those who do enroll and comply in this program will likely be able to continue to engage in limited commercial cannabis activity during the pendency of their CUP next year.

I know this is a personal decision and I don’t pretend it is an easy one, but I strongly encourage folks to think about how not getting in this program will affect their 2019 season, as well as the overwhelming protection from state and federal law enforcement that only strict compliance with the local law will afford.

In any event, my office will continue to work with the County to amend this frustrating temporary permit program, as well as the coming permanent ordinance. For example, it is important we get Res-Ag allotments back, as well as additional license types such as manufacturing and micro-businesses, among other issues.

We appreciate hearing from the community about how we can better help, so please feel free to reach out. We’re in this with you.

Much Respect, Heather Burke and Sarah Smale

Nevada County’s Commercial Cultivation Ordinance and CEQA: What every Nevada County Farmer Needs to Know

As most of you know, Nevada County staff prepared a draft commercial cultivation ordinance that was released yesterday. While I’ll leave the specifics of the ordinance for another day, the County must now figure out how to get farmers permitted as soon as possible. The California Environmental Quality Act (“CEQA”), however, requires that any ordinance that would have a “direct impact” on the environment to be vetted through an Environmental Impact Report, or “EIR.”  These EIRs can take months or years to complete, and waiting to issue cultivation permits in Nevada County until a full EIR is completed would likely delay commercial permits until 2019.

My brilliant associate attorney Sarah Smale and myself emailed other options to the Board of Supervisors today and, while none of the other options will be easy for our local farmers, the Board does have other options. You can see our Letter to my Supervisor, Heidi Hall, BY CLICKING HERE. (You should read it. It’s pretty cool.) 🙂  Here’s a very brief explanation:

OPTION 1: Temp Permits
The Board could immediately issue “temporary permits” to local cultivators who DO NOT EXPAND operations beyond the plant count and/or square footage of the current ordinance. This pathway would mean farmers may be able to get state licenses this year, but they could not exceed the current allotment of 25 plants and/or 1,000 square feet of the existing interim ordinance, limiting them to Type 1(c) “cottage” state license for the 2018 growing season.  The garden could expand, depending on the new commercial ordinance, once the EIR is completed.

While this option is not ideal for larger farms because the commercial permits would be limited in size this season, it is by far the easiest option, particularly for smaller farms that can survive off 1,000 square feet or 25 plants.  Another HUGE downside is that the County staff suggested capping the number of these permits at 100, and would decide who gets them by a lottery.

OPTION 2: Discretionary Review
The Board could enact the new commercial cultivation ordinance in the coming months if-and-only-if each and every farm went through “discretionary review.” In other words, this would require the County to make an individualized determination of environmental compliance for each farm.

This option is ideal for larger farms who are able to quickly coordinate site-specific environmental analyses and are ready to engage in the discretionary review process. However, “discretionary review” means by-its-own-terms that you’ll have to prepare reports and plans to submit to the County and then the County gets to review it and decide whether to permit it or to deny it. That process could take months, and the reports could be expensive. I would hope that discretionary review of smaller farms might be able to be streamlined in some manner, but that is not clear.

What Can You Do About It?

There is NO EASY ANSWER here. Each one of these pathways involves a weighing of the benefits and burdens, and then choosing the path that works best for the greatest number of our local farmers. To be sure, not everyone will be happy with either option.

However, PLEASE KNOW the County staff is advising the Board not to issue any licenses at all this year and to wait until the full EIR is completed, effectively pushing commercial permits off until 2019. That’s not legally required under CEQA and it just is not right. So please make your voice heard on Tuesday, May 1st, at 9:00 a.m. in the Board’s chambers at 950 Maidu in Nevada City.

I will be there making my voice heard.  Will you?

Much love and respect, hb
#protectourfarmers #nevadacounty

The Small Farmer Program: A Worksheet for Farmers Headed Into the Regulated Era

Flash Update: The Small Farmer Program Worksheet 

Hey team,

We know there are a lot of questions about how regulations affect our small farmer clients, and the answers are undoubtedly complicated and ever-changing.  In an effort to organize the various categories of issues that farmers can start thinking about now, I wrote up a simple checklist of issues to go through with my clients.

The checklist evolved over the past few months into what I now call the “Small Farmer Program,” and I’ve sought input on the program from a County Ag Commissioner, a successful Bay Area consultant, my attorney colleagues, and dozens of small farmers and other cannabis business women and men.  With their additional insight, the Small Farmer Program has become a helpful rule of thumb for our office to gauge where a farmer is on their path into the regulated era.  Rather than keep this information internal, however, I want to share it with the community so folks can start looking over some of the categories of issues they may need to start thinking about if and when Nevada County issues permits.

I formatted this so you can answer a lot of these questions by yourself, although we are here if you need us.

Keep it confidential!

Remember that we keep this document in our confidential files for our clients because it contains sensitive information. If you do use the worksheet, please take all precautions to ensure your information remains confidential.

Here it is:  The Small Farmer Program Worksheet

Much love and respect,



Summary of our Comments to the Emergency Regulations: Owners, Priority, and Terpenes

Well the time for comments to the emergency regulations has come and gone. The California Greenspoon Marder attorneys, spearheaded by Senior Counsel David Frankel, prepared and submitted our comments.  I think its important to briefly share the three we felt were the most relevant to our clients: (1) ownership rules, (2) the definition of priority, and (3) the regulation of terpenes (aka “terps”).

Some ownership rules apply only to LLCs. Why?

First and foremost, our corporate guru David Frankel correctly spotted the odd regulation that all members of LLC (limited liability companies) are considered “owners,” and require the full panoply of disclosures, background checks, and so on, even if they are not participating in the management of the company and receiving less than 20% of the company’s profits.  Consider, however, that shareholders in a stock corporation are not considered owners if they receive less than 20% of the company’s profits, and are thus subject to less stringent rules.  Although our office is finding the stock corporation with an “S corp” designation to be the most workable company for small cannabis businesses, many if not most, of the newly emerging small businesses are converting to LLCs. As such, LLCs should not have more burdensome requirements than other types of companies, so we asked the agencies to limit the “ownership” rules only to those LLC members who are participating in the membership and control of the business.

Who gets priority if an MBC or Cooperative merges with a for-profit entity?

Secondly, the agencies will give “priority” licensing if an applicant operated in compliance with the Compassionate Use Act of 1996 and its implementing laws before September 1, 2016. There are many applicants who were operating in the form of nonprofit mutual benefit corporations or cooperatives as of September 1, 2016, but who now want to convert to a for profit corporation or LLC. Under the MBC merger statute in CA Corp. Code Section 8010, an MBC can merge with a domestic corporation or other business entity. Under the corporate rules, the new for-profit company is supposed to get “all rights and property” of the old company, so we asked the agencies to make it clear that these new for-profits enjoy the priority status earned by the old company. That seems fair to me!

What’s up with terpenes?

Our final note relates to the regulation of terpenes, as the new regulations barely mention this type of activity, which is a pretty big deal right now.  Terpene businesses would usually fall into the category of Type 6 or Type N, depending on whether the terpenes are considered cannabinoids for purposes of the definition of “Extraction” in Section 40100. Most terpene manufacturers use steam distillation, which is a nonvolatile mechanical process. The distillation equipment can be installed permanently in a licensed premises but can also be installed on a vehicle so that the terpene manufacturer is able to distill terpenes from fresh cannabis plant material at or near the cultivation site. The regulations are silent concerning mobile terpene distillation equipment and operations. In addition, the regulations have been developed to address public health and safety issues related to cannabis products that are intoxicating or which involve potentially dangerous manufacturing processes.  We respectfully suggest that the department develop regulations that are better suited for terpene manufacturers and also that permit mobile terpene operations at licensed cultivation sites.


As a concluding note, we want to acknowledge that the shift into these regulations may be difficult.  Unlike most law firms, our little office has been serving the California cannabis industry for over three decades between David and myself.  We are in this with you.

Much love and respect, hb and the Nevada City Greenspoon Marder team

#protectourfarmers #cali4life #greenspoonmarder

CDFA Comment Letter to Emergency Regs final 1 12042017 pdf

BCC Comment Letter to Emergency Regs final 12042017 pdf

DPH Comment Letter to Emergency Regs final 12042017 pdf

From Zero to Sixty: Cannabis Corporations in the Last Days of the Collective/Cooperative

As most farmers are aware, the shift out of SB 420 (i.e. the collective/cooperative model) into MCRSA (i.e. the local permit/state license model) is in part intended to bring cannabis cultivation into the light, primarily the taxable light. In light of these changes, my farmer clients commonly ask if they should start a corporation in preparation for the future, or if they should continue on as they have in the past.

This article is intended to flesh some of the issues out regarding starting a lawful California cannabis corporation now.

I.  Who Should Not Start a California Cannabis Corporation

1.  Do not start a shell corporation to establish priority.

A shell corporation is a business that is formed, but ignored in any meaningful manner. It is generally unwise to form a “shell” corporation to gain “priority” status under MCRSA or Prop 64, a tactic some attorneys and even our local policy organization advised in the past.

The statutes do not mandate local Cities or Counties give “priority” to prior-existing corporations, but instead order the State agencies issuing the state licenses. (Cal. B.P. Section 19321, 260554.2.)  While the issues are related, the buying and selling of pre-existing corporations may prove to be a fruitless exercise that serves only to generate more money for the attorney who set the shell corporation up in the first place.

Local jurisdictions (Calaveras/Mendo/Humboldt) have thus far cared more about the pre-existence of the farm in light of CEQA than any “priority” offered by a shell corporation, so don’t get played.

2.  If you aren’t ready to learn how to run a legitimate corporation, don’t start one. 

Those who are not ready to operate in strict compliance with the collective/cooperative rules should refrain from starting a corporation now, as they could expose themselves to criminal liability for financial and tax crimes instead of the simple cannabis crimes. Financial crimes are far worse, as they are often felonies and may be considered “moral turpitude,” forever precluding any type of licensing.

If you ain’t ready, you ain’t ready.

II. Why Does Corporate Status Matter?

For those who are ready to move into the next phase of California’s lawful system of cannabis production, the remainder of this article is for you. The first thing to know is MCRSA and Prop 64 authorize commercial activity, which will operate within the U.S.’s hyper-capitalistic economy. Thus, in order to best protect yourself and your assets, a smart farmer should have a working knowledge of basic business, and of those corporate rules that come along with it. Here’s a few issues to be aware of:

1.  Taxes

Taxes on California cannabis are wild, and they appear to have no end in sight with the allowance given to locals to tax even further. This massive taxation will likely put some mom-and-pops out of business, but by thinking strategically about taxing now, you can take the right steps to avoid unnecessary taxes.

By my account, cannabis taxes thus far are:

  • $148 per flower pound (due at harvest);
  • $44 per leaf pound (due at harvest);
  • 8% sales tax (which would be negated for wholesales from grower to dispensary/retailer if the growers can obtain a resale certificate, but growers who direct sale would be liable);
  • 15% excise tax (applies only to purchases of cannabis products, so this is a bigger issue for retailers);
  • Local cultivation and/or sales tax (TBD depending on your City/County);
  • Absolutely no write-offs for cannabis-only related expenses, per 26 U.S.C. § 280E.

By making sure you’re not paying extra self-employment taxes and ensuring your small business can obtain “pass-through” taxing when you move out of the collective/cooperative model, you can eliminate or greatly reduce the possibility of double taxation (i.e. where your corporation gets taxed and then your salary from the corporation gets taxed again).

2.   The Reputation and Goodwill of Your Business May Prove to Be Critical in an Industry Where Your History Matters.

I cannot understate the value of building your corporate personality and the “goodwill” of your business now, as the age of your corporation and its existing reputation matters, both for “priority” status under MCRSA and Prop. 64, and also for competitive local permits. Mostly, however, consumers care!

3.  Allows Strategic Business Decisions in Quick Turn-Around Permits.

In addition to the obvious issue of taxation, growers may not get a lot of time to ponder these issues before having to make a quick decision about permitting in light of the quick ebb and flow of the local cannabis rules in each City and County. (Hello, Mendo!)

4.  Allows Strategic Business Decisions in Non-Transferable Permits.

Many of local permits are non-transferrable, which means you may be stuck in the same corporate formation for several years if the County permits go on hold during a CEQA analysis. Taxes may prove to be unbearable if you don’t have corporate protection once taxes kick in in earnest in about 2019-2020 (once the collective/cooperative model dies).

5.  Protects You From Personal Liability if Your Business Gets Sued or Goes Under.

With a functioning corporation, you get the added benefit of a corporate “veil,” meaning your personal assets would likely be protected if your business got sued. Considering there will be tons of lawsuits as these issues get worked out, protect yourself by making sure you and your business are distinct entities. 

III.  Overview of California Cannabis Corporations

1. Current Law Continues to Demand Not-for-Profit Status.

Current law still requires non-profit status, but allows for profit making in the future. This odd conundrum leads to the common question: “How can we protect ourselves now but prepare for the future of California cannabis?”  

There are three primary choices: (1) do nothing, which essentially means you are a sole proprietor, (2) incorporate as a not-for-profit Mutual Benefit Corporation that can be transitioned to a for-profit company in the future, (3) organize a for-profit corporation that chooses to operate on a not-for-profit basis, or as a “management” or “holding” company for a distinct not-for-profit collective or cooperative. 

2.  Sole Proprietorships

California law continues to require a cannabis farmer be organized as (1) a collective or a cooperative, which (2) must be operated in a not-for-profit manner. Thus, operating as a sole proprietor of a commercial cannabis operation is arguably illegal at this time.  

There is the rare case where a grower provides cannabis to a dispensary of which they are a member.  If your garden is organized as a producer for a dispensary, however, your hard work is actually building someone else’s business. 

Additionally, once you begin to file taxes on your commercial cannabis business, sole proprietors will be subject to self-employment taxes, which essentially doubles your standard taxes. This self employment tax is in addition to the other taxes described in the previous section.  

3.  Cooperatives and Not-for-Profit Mutual Benefit Corporations

In 2008, Jerry Brown declared medical cannabis cooperatives must be formed as “Consumer Cooperatives” or “Agricultural Cooperatives,” which are specific types of businesses where members are united in common purpose and generally get an equal vote on the corporation’s major decisions. Cooperatives have stringent voting requirements that greatly limit their flexibility as an entity.  

At some point, dispensaries wisely began utilizing Mutual Benefit Corporations [“MBC”], another type of corporation that allows the Board and governing members greater flexibility in building the dispensary’s business.   The MBC can have members with voting rights similar to a cooperative, or members who do not get to vote, or even members who can vote on only some things, and this pliability makes it a desirable form.

The downside, however, is a MBC may not make the best business sense once the corporation gets big enough to own assets (such as real property or personal property like a greenhouse or a tractor).  An MBC cannot distribute assets or “dividends” to its members like a profit corporation can do for its shareholders, as the only time a MBC can distribute assets to members is at dissolution, unless the governing documents such as the Articles of Incorporation (AOI) or bylaws state otherwise. (Corp. Code Section 8717.)  

California law thankfully allows a MBC to merge with or transition into a for-profit company (C.C. 8010), which cannabis-related MBCs should not do until:

  • Collectives/cooperatives may legally operate on a for-profit basis (watch out for AB 64); or
  • You’re governed by the rules of MCRSA/Prop. 64, i.e. where you have a local permit and a state license.

          4.  LLCs, Partnerships, and Other Traditionally For-Profit Corporations

An LLC is a common entity type for small businesses, as LLCs offer traditional corporate protection, but don’t have the same rigmarole as traditional corporations that issue stocks to shareholders.  Most folks who have cannabis-related LLCs traditionally operate them in addition to their MBC and, in those cases, the LLC “manages” or acts as a “holding company” for the non-profit MBC’s assets or Intellectual Property, such as the company’s logo, the secret nutrient formula, or special growing techniques.  

In such cases, appropriate contracts/leases would need to be drafted setting forth how the LLC interacts with the MBC to ensure the transactions between the two corporations are sufficiently “arms-length” to be unquestionably legitimate.

Technically, you can run an LLC in a not-for-profit manner by declaring so in the Operating Agreement (CC 17701.10), which is a common structure in areas where the local jurisdiction is more friendly to creative cannabis businesses. In Nevada County and the surrounding Counties, you will likely be prosecuted if you tell an officer your cannabis business is an LLC, even if you can prove your financials are managed in a not–for-profit manner.  Thus, while a not-for-profit LLC is a legitimate possibility, its wisdom in practice largely depends on your jurisdiction.

If your cannabis business has a creative corporate structure involving an LLC or other type of for-profit, it is critical that Sierra Foothills farmers do not discuss their business model with law enforcement, and you should be wary of obtaining a permit in the name of the LLC. 

          5.  What Corporate Structure is Best for the Small Farmer?

For the aggressively professional and forward-thinking Sierra Foothill farmers, the most strategic method is to maintain (and operate) two corporations (i.e., a not-for-profit to manage the cannabis and a for-profit to manage the assets), as growers may not get lengthy notice when the Sierra Foothill Counties finally do issue cultivation licenses. Thus, having one of each type of corporation allows you to make a strategic decision about which corporation to get the permit under, if and when they are issued. For example:

  1. If not-for-profit status is still required by the State when your County issues a permit, or if the County grades applicants on the length of their previously existing corporate status, then having a longstanding not-for-profit corporation would be extremely helpful; or
  2. If the County issues licenses after for-profit becomes legal, then it would be needlessly cumbersome to get the permit as a non-profit unless you desire to remain a non-profit in the future (which a lot of folks do) or unless you don’t get time for a lengthy transition before your application is due.  If you’re in the latter category, you should ensure your governing documents allow for flexible transition now, or you could screw yourself in the future.

However, for the majority of small farmers just trying to make it through the day, a Mutual Benefit Corporation which allows easy transition to an LLC or stock corporation is perfectly workable, as it the safest option for now and can be converted to a for-profit in the future. 

If you are in a friendly jurisdiction, you could skip the MBC and go right to the LLC, but that’s dangerous ground in hostile Counties and may hurt you if your jurisdiction requires proof of not-for-profit status when permits are available.


In sum, I am aware the corporate stuff is unfamiliar and daunting. But, while the massive taxes are my least favorite part of the end of prohibition, I strongly believe wise steps to protect yourself from over-taxation and the lack of any risk of arrest will make this transition worth it someday.   

For now, just continue to hold on tight, start to ponder these concepts, and then take initial steps if and when you’re ready. Above all, please stay safe this coming season.

<3, hb

Written by Heather L. Burke, Criminal/Administrative/Corporate/Litigation

In consultation with attorney Fran Cole, Diamond Baker Mitchell, L.L.P, Corporate/Civil Litigation

***This blog is excerpted from a larger chapter in the The Farmer’s Corporate Handbook, due in May, 2017.  Additional chapters include (2) How to Run a Legal Cannabis Corporation, and (3) What Legal Cannabis Producers, Manufacturers and Distributors Need to Know About Contracts, and more!  Stay tuned!  

#protectourfarmers #cali4life

The Tortoise, the Hare, and the Ostrich: Legal Compliance in the 2017 Growing Season

I used to joke that many farmers act like ostriches by burying their heads in the sand when it comes to staying on top of the sweeping new laws relating to cannabis cultivation.  That approach is understandable in light of the volume and complexity of the new laws, but I recently realized the age-old story of “the tortoise and the hare” may provide significant insight for those trying to find a path forward, particularly here in Nevada County. That story taught us—as we all remember— that slow and steady wins the race.   This principle is applicable to growers in Nevada County’s current cannabis realm for three primary reasons:

1. Protect What You’ve Built in the Industry Thus Far.

Before thinking about the future, farmers should start by protecting what they’ve built so far.  For most, this means perfecting their legal compliance now, as one’s compliance with state law matters this season more than ever, especially in the ban counties such as Nevada County (yes, we are still under a ban).  It is critical to protect yourself from arrest this season, and from felony arrest in particular, as we are expecting the Sheriff’s Office to mount an aggressive anti-cultivation campaign. The County will get $100 per plant out of compliance, per day, which adds a unique financial incentive not previously in play.  Moreover, thanks to our “interim” ordinance, law enforcement can “summarily abate” (i.e. slash-and-burn) without a hearing wherever there is any violation of state law! Thus, even a misdemeanor violation of Prop 215 and/or the Collective/Cooperative rules could possibly get you immediately chopped, fined $100 per plant, perhaps arrested, and having to “lawyer up” for a criminal case.  Talk about insult to injury!

Additionally, although Prop. 64 (aka “AUMA”) downgraded illegal cultivation to a misdemeanor in most situations, it is still a felony where the plants are grown in a way that harms the environment.  Law enforcement will likely interpret the environmental crimes broadly, so unpermitted clear-cutting in an area close to the watersheds or irresponsible use of pesticides might get you arrested for harming the environment. Since you can be denied a state license under MCRSA for a felony conviction based on purposeful injury to our Mother Earth, you should not half-ass your legal or environmental compliance this year.

Finally, as Congress defunded the DEA and fed DOJ from investigating and prosecuting conduct that is in “strict compliance” with California’s medical cannabis laws, a half-assed informal Collective or a defunct Not-for-Profit Mutual Benefit Corporation [“MBC”] is probably not enough to protect you from the Feds if they come in. (P.S., #fdt.)

While our County’s ordinance status is imperfect, I am choosing to be grateful for this momentarily lull after a barrage of sweeping changes over the past 2 years, both locally and state-wide. Instead of acting like the braggadocios hare (who has a popular Instagram page, so he must be legal, right?) or the purposely ignorant ostrich, I am encouraging my clients to follow the wise tortoise’s lead and take this precious time to perfect their legal compliance, particularly as we are only beginning to methodically digest the deluge of new laws.  I strongly advocate a “safety first” approach, focusing on protecting what you built in this industry thus far as we inch towards the future with wisdom.

This simply is not the year to risk everything because we’re ticked off the County did not give us grow permits after Measure W. Complaining is self-defeating. Get over it, and bring your legal status into line while there is time to do so thoughtfully.

2. Prepare for the Future, But Do So Wisely.

You can be proactive during this short respite by taking small but significant steps to prepare for permitting, if and when it is available.  Should Nevada County allow you a mere few days to turn in your permit (recall what happened in Mendocino County), you may regret burying your head in your expensive pile of fancy dirt. There is much to do, now.

Firstly, we can look to the cultivation ordinances in Calaveras, Mendocino, and Humboldt, make educated guesses about the requirements of a future permitting ordinance here, and get working on it.

Secondly, as we move from collectives/cooperatives to small businesses, there are a LOT of corporate and tax rules that now may apply.  You could, for instance, get answers to the following questions now, instead of making critical decisions under a stressful timeframe:

  • Should you start a MBC? (Hint: beware of anyone selling you a MBC without assessing the cons as well as the pros.)
  • Was your MBC created in haste to get you “priority,” but you don’t really use it or have any idea what to do with it? How do you breathe life into an existing non-profit corporation?
  • Does your defunct MBC get you “priority” under MCRSA? (Hint: no.) If not, what does?
  • Does an MBC and a popular Instagram page equate to legal compliance?  (Hint: yikes!)
  • If you have a MBC, do you know if you will need to dissolve it or whether it can be morphed into a for-profit entity in the near future (should AB 64 pass or you get state licensing)? Should your bylaws be updated now, before you bind yourself to a non-transferable permit?
  • What Water Board tier are you? What can be done today to prepare if you may a higher tier? Does compliance with the Water Board BMPs even matter now, before you can submit a Notice of Intent?
  • Have you met with a CPA and started thinking about the process of tax compliance, even if you’re not ready to commit to paying taxes just yet? Is your CPA subject to the attorney-client privilege, or are you telling your most critical secrets to someone who is not bound by statutory confidentiality?

While the questions can go on ad infinitum, a knowledgeable lawyer can give you a fairly good overview of these issues so you that can take your first step at developing an Action Plan.  Don’t wait to make a game plan until the game is on.  While we have precious time to prepare and plan, prepare and plan for Goddess sake!

3. Intent Matters. A Lot.

An intention to operate lawfully actually has cognizable significance in the legal realm. I find that developing an intent to be lawful is often matter of self-perception, as cops and prosecutors told growers they were illegal for decades, even when the growers were trying to do it right. This unfortunate self-perception of illegitimacy is a result of that conditioning, and the time has come to stop playing into their narrative and to create your own story about your intention and understanding of your own legitimacy.

No, you still cannot talk to law enforcement about your new self-realization, but it is a hugely significant step forward if the only change you make this season is to alter your intention surrounding the lawfulness of your canna-business.  Like everything else in life, intent matters.


In closing, I note that the work of the tortoise is undoubtedly tedious and perhaps lacking in glamour, but it is methodical and wise. You will be better prepared than the ostrich who refuses to look up from his pile of dirt, and you will likely outlast the rabbit, who gained a reputation for folly.  As we alter our perception of our County’s currently undesirable status from an affront to a respite, we can change our perception of ourselves along the way, and create our own story.  Then we trod on slowly, but wisely, to the finish line.

#strongertogether #protectourfarmers #cali4life #setmypeoplefree ~hb

My musical meditation for this post is a live version of Bad Brains, The Meek Shall Inherit the Earth. You’re welcome.


Discussing Federal Cannabis Issues with Attorney Omar Figueroa

I got a chance to sit down with one of my colleagues and friend, the brilliant attorney Omar Figueroa, this morning to chat about what’s up with the feds. Know this! ~hb

Choose Your Own Adventure: Gate Notice Edition

If you received a Gate Notice, or you just want to educate yourself, the Law Offices of Heather L. Burke is excited to offer this Choose Your Own Adventure-style game!  While we do advise you see your lawyer if Law Enforcement has requested to visit your home or property, now you can see all the possibilities for yourself in a fun and friendly format:


Please note that additional information is available when you hover over the options, although these extra features may be hidden when browsing on your phone. Thus, we’ve provided a short key with the brief descriptions of each options here:

Here Are Your Options


  • Calling Law Enforcement Back

It is best to have your attorney call Law Enforcement for you, but you can call them back yourself if you feel comfortable.

  • Consent to an Inspection

You may consent to allow Law Enforcement to “check off” your garden. This means you are inviting them onto your property, so it is best to talk to an attorney before you make your appointment.

  • Self-Abate

You can self-abate any plants that are out of compliance prior to your inspection. They can’t fine you if you abated before they arrive.

  • In Compliance 

Hooray! Even if law enforcement enters by warrant, they can’t cut the plants if you are in compliance with state and local law!

  • Ordinance Citation

You may be fined for every plant and every Building Code violation. Those fines can add up fast, so try to be in compliance!


  • Don’t Call Law Enforcement Back

You have Constitutional rights to not call Law Enforcement back. However, this may not always be a good idea. Let’s see why on the next screen!

  • Warrant for Abatement

If you don’t consent to an “inspection” and if Law Enforcement has Probable Cause that a nuisance or a crime is occurring, they could get a warrant and may abate any unlawful cultivation, fine you, or even arrest you if you are violating Prop 215.

  • Self-Abate

Even if you cut down your own plants in front of Law Enforcement, fines and fees may still apply!

  • Ordinance Citation

You may be fined for every plant and every Building Code violation. Those fines can add up fast, so try to be in compliance!

  • No 215?

California still requires compliance with Prop 215, which means cultivating cannabis “for profit” or not having a collective or cooperative is still illegal. Also, cops can arrest you for environmental crimes. Don’t do it!

The Ordinance Appeal Proess

*The process after a citation is the same, regardless of how Law Enforcement got onto the property.

  • Appeal

You can appeal your citation, but fines and fees may accrue every day until your hearing if you did not “self-abate.”  It is best to talk to your attorney before filing an appeal!

  • Win Appeal

You can win the appeal if Law Enforcement cited you incorrectly, and sometimes even if they entered your property illegally!

  • Lose Appeal

If you lose your appeal, you may owe a lot of money, but you cannot be arrested!

  • No Appeal

If you don’t file an appeal, then Law Enforcement may come back and abate (either with your consent or with a warrant) if you don’t self-abate. You will owe money for any fines and fees, but you cannot be arrested!

  • No Police Action

Every once in a while, Law Enforcement might not follow up with you. You might make it through to the end of the season, but you will be left wondering what can happen next.  This scenario is extremely rare, so don’t count on it!





Probable Cause in Planning and Planting Your Legal Cannabis Garden.

This is the first in a four-part video series entitled “California Cannabis Law,” and this Part I focuses on Probable Cause in Planning and Planting Your Legal Cannabis Garden.

Part II will focus on State Law Compliance, Local Ordinance Issues, and Federal Law Update, and will include an overview of all three areas of law which may apply to the lawful cultivation of cannabis.

Part III will address the Future of Cannabis Cultivation in California, including priority issues and how to move forward in California’s new legal era.

Finally, Part IV will discuss Resentencing and Expungement, including Proposition 64’s allowance for redesignation, legal invalidity, and expungement.

Happy 2017 from The Law Offices of Heather L. Burke!!


Prop 64’s Effect on Criminal Records: Legal Invalidity vs. Redesignating Prior Felonies

**This is a technical analysis that is not necessarily fun reading, but may be helpful for attorneys or people who want to clean up their prior cannabis felonies .

Prop 64 fundamentally redefines California’s criminal cannabis laws, in particular Health & Safety Code [“H.S.”] §§ 11358 (cultivation), 11359 (possession for sale), and 11360 (transportation/sales).  Each of those crimes are now misdemeanors, unless its someone’s third offense for that particular crime.[1]  AUMA also allows people to redefine their criminal histories to reflect Prop 64’s changes to the standard marijuana felonies.  There are two avenues for updating one’s criminal record, one of which applies to people who are still serving their sentences (H.S. § 11361.8(a)-(d).)  The other avenue, for folks who have served their time and are off probation or parole, is the focus of this article.

Legal Invalidity vs. Redesignation (H.S. Section 11361.8(e)-(h).)

Under Prop 64, people with cannabis felonies on their record can now “apply” either (1) to have their prior conviction dismissed and sealed because the prior conviction is now “legally invalid,” or (2) to have their prior convictions reduced to misdemeanors.  Judge Couzin’s bench brief on Resentencing Procedures (PDF attached below) is helpful on this procedure, but there are a few substantive notes I want to add: 

1.  ”Redesignating” The Prior As A Misdemeanor

This avenue is available to everyone with a conviction for H.S. §§ 1135811359, and 11360, as well as anyone with a prior “hash” felony, H.S. § 11357(a).  It is critical people realize Prop 64 actually “redesignates” these felonies to be misdemeanors “for all purposes.”  (H.S. § 11361.8(h))  This includes future priorability!   Thus, someone with two prior felonies who gets them “redesignated” will now have two AUMA priors, which then allows any future criminal offenses to be charged as felonies! (See an example in footnote [2], below.) 

Thus, folks who are no longer working in the cannabis industry or who want licensing to become doctors, lawyers, teachers, etc. may want to get their records redesignated.  Those who are still in the cannabis game, however, may want to leave well enough alone, since a prior cultivation felony is not priorable under H.S. § 11358(d)(1).  Arguably, it is legally invalid as-is, so why mess with a good thing?

2.   Declaring The Prior to Be Legally Invalid

AUMA says a person who has a criminal record for conduct that “would not have been guilty of an offense or who would have been guilty of a lesser offense” can now seek to have the sentence declared invalid or get it reduced to a misdemeanor.  This language is unclear, but I imagine most judges will read this to say that if one’s conduct would have been perfectly legal under AUMA, then they can get the conviction dismissed and sealed as “legally invalid.”  (Judge Couzins agrees.)  That means the conduct would not have been a crime under AUMA (which only allows 6 plants, 1 ounce of flower, and/or 8 ounces of concentrates), so the dismissal/sealing on grounds of “legal invalidity” will be far more difficult to obtain.
There is no question that those who have felony convictions for cultivating 6 or less plants (11358) are eligible to have their priors declared legally invalid, as are those who have possession for sale (11359) and transportation (11360) for possessing or transporting their personal stash (so long it’s a single ounce of flower and/or 8 ounces of concentrates).  

Everything else, however, is legally murky, as H.S. §§ 11359 and 11360 are not determined by quantity, and instead are focused on whether the conduct was being possessed, transported, or sold consistently with AUMA or MCRSA’s regulatory regimes, which presents somewhat of a quandary because these schemes are not yet in effect.  Presumably, however, if one’s conduct was within S.B. 420’s collective/cooperative defense as we know it today, that might also be sufficient for a declaration of legal invalidity, but that’s no slam dunk and may require an evidentiary hearing, depending on your DA. [3] 

One interesting issue will arise where the arresting or investigating officer(s), and/or their police reports, are no longer accessible due to the passage of time.  Since the prior conduct is presumed to be legal, and the burden is explicitly placed on the prosecution to prove otherwise, older convictions may more easily be declared legally invalid due to the prosecution’s simple inability to locate the old evidence.  This will be a huge asset to those cannabis foremothers and forefathers with felony convictions dating back to the 1980’s or earlier.
In any event, the prosecutor can always elect not to contest an application for legal invalidity and, thus, discussing these issues with opposing counsel in advance might save our clients from putting them through another emotional, costly, and often difficult evidentiary hearing on an old conviction. 
In closing, our clients are undoubtedly in a better position under Prop 64, since cannabis crimes now default to misdemeanors instead of felonies, and even those misdemeanors are allowable only where one cannot obtain a permit under MCRSA or AUMA.  This fundamental shift in the law provides defense attorneys new arrows in their quiver, with which to continue to strike down cannabis prohibition and keep people out of cages for a plant.  
<3, hb

[1] As the priors are statute-specific, a prior 11358 conviction should not be “priorable” in a future § 11359 case.  

Additionally, cultivation (11358) remains a felony where committed with an environmental crime, and transportation (11360) remains a felony where the cannabis is being transported out of state.  Sections 1135811359, and 11360 may also be charged as felonies where the defendant has a prior conviction for murder, child molestation, or other serious or violent crime.  This last rule seems like an odd thing for AUMA to throw into the mix, but I am not going to address it here in detail since most of us will rarely see that become an issue in the standard cannabis cases.

[2]           Take cultivation (11358) as an example:

If a person has two cultivation priors, they could seek to have them “redesignated” as misdemeanors, so their criminal history would show two prior violation of the new subsection (c) in H.S. § 11358.  That is great, in that their criminal history is now comprised of two misdemeanors instead of two felonies, a definite improvement.  Where this gets wonky, however, is that those two misdemeanors are also now “priorable” under H.S. § 11358(d)(1), since this section allows a felony charge where there are two priors of § 11358’s new subsection (c).

The same is true for possession in § 11359(c)(2), and also for transportation/sales in § 11360(a)(3)(B)

[3]   If that person already went to trial and used a collective/cooperative defense, it’s doubtful AUMA’s procedure will be interpreted to allow a mini-bench trial on the exact same issue in order to get a declaration of legal invalidity, but I suppose that remains to be seen. 

[4]    Note that H.S. § 11361.8 does not extend to priors for H.S. §§ 11366 or 11366.5, which was a common plea bargain for many cannabis crimes because they were wobblers and did not require registration as a narcotics offender.  These folks may still access the regular route for expungement and reduction under P.C. §§ 1203.4/17(b), and discretionary relief may be made more available due to Prop 64’s passage. 

Why I’m Voting Yes on 64: A Tortured Analysis

Admittedly, Prop 64 does nothing to alter the corrupted capitalist economic system in our nation.  That means that if-and-when cannabis enters the commercial market, it enters a capitalist commercial market where traditional market forces will be in play, for better or worse.  And I’m still voting yes. Here’s why:

I am a criminal defense attorney. My task each day is to defend those who are charged with cannabis felonies throughout the California. Prop 64’s primary redeeming quality is it will have a sweeping effect on current California’s cannabis prohibition, where cultivating cannabis is currently presumed to be a felony unless one can prove their conduct was medical and not for profit.  Today’s cannabis law and today’s cannabis industry simply do not match, which works to the advantage of law enforcement who often seize upon this confusion out in the cannabis fields to arrest famers first, and ask questions later.  

Importantly, illegal cultivation is a straight felony under SB 420 or MCRSA, as misdemeanor cultivation does not even exist in California law today. This should be a heightened concern to growers in ban counties, such as most of the Sierra foothills.  However, if 64 passes, any illegal conduct becomes a misdemeanor unless its (1) a person’s 3rd offense, (2) if the cultivation is conducted in conjunction with an environmental crime, or (3) if transporting out of state.  Even with the influx of cash to law enforcement from Prop 64, law enforcement does not have the same resources or authority to investigate misdemeanants as it does felons. Perhaps equally important, Prop 64 explicitly negates the smell of cannabis as the necessary probable cause that cops use to get into homes and cars. That’s a sweeping disadvantage to law enforcement and will have massive effects on how they can investigate our people. I cannot stress how important these changes could be for growers. 

Next, I am wary of those (often wealthy out-of-staters who moved to California in the recent years for the specific purpose of cultivating cannabis) who are advising those of us who were born here that the corporations are going to take over.  Those corporations are already here, my friends.  There are people at our own local policy meetings that would happily vertically integrate if they could and push the diversity of our small farms out of the market in favor of market domination. If we think the big guys have the small farmers’ backs today, we’re kidding ourselves. It is already happening.  The competitive application processes thus far around the state have been a bloodbath, as is often the case in a corrupted capitalist system such as ours. Steve DeAngelo of Harborside spoke in Nevada County recently and said the future of the small farmer is to lease space from the large cultivators!  And he wasn’t talking about Prop 64, folks. 

To some degree, the preservation and promotion of self is human nature, regardless of the economic system in play.  In fact, the most common question at my office is “how can I establish priority for future licensing?,” raising the inference that if there is a cap on number of permits, most folks want to be one of those few, to the exclusion of others.  Lets also take a moment to recall Prop 64’s allowance of priority and vertical integration sent hundreds—perhaps thousands—of NorCal growers to ill-advisedly rush to file for cooperatives prior to September 1 this summer. The same insane bumrush happened last December regarding the MCRSA priority. Trust me, someone out there is already gunning to throw other small farmers under the bus, Prop 64 or not.  Prop 64 just takes that felony bus and makes it a misdemeanor. 

In California, we should instead look closer at competitive capitalism, the effect of money in politics, and a grossly unjust legal system, rather than reject a second semi-legalization initiative.  Instead of infighting, I wish our community would focus on addressing the corruption in these underlying power systems, making sure that more small businesses, people of color, women and those with cannabis-related criminal histories, are supported in this new era.

Finally, a particularly violent anti-64 grower I know (in another County) has thrived in the black and grey market because his cannabis is subpar by all accounts, and has been so for years.  Market forces should drive out the growers who lie about their pesticide use or inflate the cannabinoid content.  The market will make sure the money he made in the past would now go to someone who does play by the rules, who is willing to have their cannabis tested by a laboratory, who pays taxes, and who makes sure their product is labeled truthfully; someone who makes sure to follow the appropriate regulatory process.  Small growers will be able to get their permits and can even thrive, if they are willing to do the hard work of increasing the quality of their brand, marketing their product well, banding with others, coming to the policy meetings to shape the regulations in their favor, and who will do the work required of legitimate business.

I admit this is a tortured doom-and-gloom analysis, and it saddens me that I just don’t see another option. Prop 19 was far better than Prop 64, so I doubt the next one is going to be better.  Who would fund another and more expensive legalization initiative after two failed in California? My heart is heavy about this, as the harsh realities of Prop 64 has exposed some of the darker sides of California cannabis, on both sides of the issue.  I can only pray we respect each other’s opinion and each others Constitutional and ethical imperitive to VOTE, and look forward to that day when we reunite in a meaningful way to focus on the greater problems we continue to battle: money in politics and a broken legal system.

Those evils will persist, regardless of the outcome of this election. Please do not let this divide our community any further.  Either way, we have so much work to do. 

#rise #dividedwefall #fuckthatCOINTELPROshit #protectourfarmers #sameteam 

My musical meditation for this sad soulful post is Murs, “The Time is Now.” 

Look, not now, but right now, it’s time to change the game,
A new style, something different, you know, uplifting,
New sound from the West that we all can get with it,
The Pacific to be specific.”  

#cali4life <3, ~hb

What to Know About Aerial Surveillance During Harvest

It’s October in NorCal, which means it’s officially harvest time in the outdoor cannabis growing counties, such as Nevada County, Yuba, Humboldt, Mendo, Lake, etc.  The leaves are yellowing and the smell of cannabis is wafting through the air.  As the outdoor grow season winds down, the Sheriff’s helicopters and fixed wing planes are in full effect in their last ditch effort to take down as many gardens as possible before the end of the month.  Since that means it’s time to hunker down and protect your year, our office decided to dedicate this blog to the laws that officers should follow when flying above your garden, and what you can do when you see them.   

First, all growers should know the basic laws regarding aerial surveillance.  Law enforcement aircrafts are not allowed to violate FAA rules, which mandate that fixed wing aircraft must fly at least 1000 feet above congested areas and 500 feet above sparsely populated areas.[1]  Helicopters can fly lower, at approximately 500 feet or even lower, so long that they aren’t “physically intrusive.” 

However, on the hill, we all know cops constantly violate these rules, particularly with helicopters. Thus, the question becomes: “What can you do about it?”  Here are a few actions that cannabis farmers can take when aircrafts are too close to your garden for comfort:

  1. Document it!

All aircraft have their identification numbers on the side.  If you can read them, it’s too close.  So write it down! Quietly take a photo or video, but don’t make a big stink about it. [2]  In fact, write down everything they do, particularly if they circle you or pass back and forth repeatedly (also called “aerial acrobatics”).  If law enforcement ever shows up at your garden, your lawyer will probably kiss you if you’ve already documented any of the following:

  • Date and time.
  • Aircraft number, color and other markings
  • Flight pattern (i.e. did they fly in a circular, zig-zag, or back and forth pattern? If so, how many times?)
  • Estimate how many feet the aircraft was above you. Was it at tree-top level? Could you see into the eyes of the pilot or any passengers? Can you document what any of them were wearing or doing?
  • MOST IMPORTANT: Document how the helicopter’s close altitude affected your senses.  Could you feel the wind from its wings? Could you feel dust being kicked up into your face? Was the noise deafening?  Were you scared for your safety?

    2. File a Complaint With the FAA

If the law enforcement aircraft is coming too close, the FAA should know! The FAA takes this seriously and will contact the pilot quickly. They may even ground the pilot if their conduct was dangerous.  You can file a complaint by emailing them at or using their online form here:  

This is strong medicine and should be used cautiously, as the FAA is a federal agency and their complaint form requires you to disclose your name and address. 

     3. Get Your State Law Game on Point

If you get a close fly-over, particularly one where the aircraft circled you, consider yourself officially on the Sheriff’s radar.  Thus, I advise all my clients who have a contact with law enforcement to consider it a warning, and for Goddess sake, take this opportunity to make sure your conduct complies with state law!!  I know trim is getting close and friends are starting to trickle into town. But this is a time to keep on your toes, not to relax. Not quite yet.  

Also take this opportunity to remind your staff they are not allowed to make any statements to law enforcement.  Never. None. Nada. NO STATEMENTS.  If you cannot do this due diligence because you’re either too scared or too lazy to have a grown-up conversation with your workers, get another job.  #truth

     4. Get Naked

This one is my favorite, but it only applies to helicopter surveillance of gardens on the same property as one’s home. The reason is that the law gives greater respect to that “intimate activity associated the sanctity of a man’s [or woman’s] home,” which means officers are not allowed to look as closely at those areas near a home where folks historically kept an outhouse, hung their bloomers, or sunbathed in the nude.  The more naked you are, the greater your “expectation of privacy.”  #seriouslytho 

In prepping for this blog, I actually took my staff up in a small plane and toured Nevada County!  To be sure, full season outdoor plants grown in a patch are easy to spot, even from a plane at 1,000 ft up.  While it was impossible to see inside a greenhouse with my naked eye, my cell phone camera did a fairly good job of spotting green-colored foliage from within greenhouses that had the sides rolled up.  So expect another blog in late February – prior to the outdoor planting time – discussing how to alleviate this easily-solvable problem (and how it is unwise to have an outdoor garden on the same site as a light dep or greenhouse!!).  But that’s a story for another day…
I close this post with a reminder that unlawfully obtained evidence may be suppressed in any criminal action, although it is near impossible to get it suppressed in a civil ordinance action.  So, yes, cops may legally cut you down, even if they learned about you illegally.  Know this!  Our sacred herb grown under the sun is soon ready to bless up, so please be safe out there during these final few weeks, my dear friends and family.
Much love, ~hb  
#roots #legalizeit #cali4life
As always, I end my blog posts with a musical meditation: John Holt’s legendary “Police in Helicopter,” a roots classic that’s been banging in every roots dancehall I’ve ever been in since I was a kid. And that’s no small number.   
We don’t trouble your banana, we don’t trouble your corn.
We don’t trouble your pimento, we don’t trouble you at all.
But if you continue to burn up the herbs, we gonna burn down your cane fields. 

 ‘nuff said.
*Written by Heather Burke. Legal research by Heather Burke and Sarah Smale.

[1] This rule applies to aircrafts owned and operated by law enforcement, as well as to those private carriers who contract with law enforcement.

[2] If you do take photos or video, please immediately get them to your attorney and then delete them from your phone.  If law enforcement does execute a search warrant, they will seize your phone and the photos/videos will be lost or used against you.  

Nevada County: “Let Us See Who Is Strongest.”

I was not designed to be forced.  I will breathe after my own fashion.  Let us see who is the strongest.” 
-Henry David Thoreau, On the Duty of Civil Disobedience
To be sure, we are living though one of the most widespread acts of civil disobedience in modern history, as the cultivation of cannabis is sweeping through California and beyond in numbers we can barely begin to comprehend and in spite of any regulation that has attempted to ban it. 
In Nevada County, the full scale ban of all outdoor and commercial cultivation on the June 7th ballot, entitled Measure W, will do little-to-nothing to change this trend.  At best, Measure W is a temporary vindication of the moral majority in a conservative retirement County, a moralistic approach that cannot be effectively enforced considering the sheer numbers of humans involved in this honorable work.  To be clear, if W passes, the question is not if the ban will someday fail, but when it will fail.  

​Here’s why:   
At the most basic level, young people overwhelmingly agree with sensible cannabis regulations.  These youths will someday rise to take the seats of County Supervisors and, even better, the Sheriff.  Case in point: my 14-year-old son toured the Supervisors’ offices on a school field trip.  Upon meeting Supervisor Ed Scofield, he and his young colleagues wasted no time in grilling the elderly and hopefully out-going Supervisor about the wisdom (or lack thereof) of Measure W.  I talked to several of the children afterwards, and they said Scofield’s answers appeared rote, and didn’t jive with the reality each of them already knew to be true.  I cannot help but smile when I imagine these fresh-faced teens immediately spotting Scofield’s BS, holding their own against a failed policy that is literally aging before our eyes.  This scenario has replayed itself in my mind as a symbolic moment, and one that we should take to heart if Measure W passes.  
Even if it does pass, the pro-regulation camps have undoubtedly benefited in spectacular ways that will catapult us into the next fight, whatever that may be.  The greatest of these benefits is in the recent announcement that Nevada County has more registered Democrats that Republicans.  I’m sure the Sheriff had no idea that his pet project would motivate the most vibrant “Get Out the Vote” campaign ever seen in Nevada County, causing our historically red county to turn blue.  This is a truly fascinating development with far reaching implications that is likely causing some handwringing in the Republican establishment.  Not only will the new Democratic majority affect the two Supervisorial races also at issue this week, it more importantly and undoubtedly will have drastic impacts for generations to come.  So for that epic change to our County’s political landscape, I would like to extend my sincere thanks to our very own Sheriff Royal. 
Another unexpected side effect of Measure W is that it provided a pathway for numerous No on W folks to rise to local and even state-wide prominence.  Jonathan Collier, for example, was relatively low key before Measure W, but not since.  Jonathan has excelled in diplomacy, forging bonds with unlikely allies that I never thought possible.  Indeed, he was chosen to debate pro-W hothead, Supervisor Dan Miller, at the Democratic forum (and JC killed it!).  Diana Gamzon of the California Growers Association is another standout who whipped a disorganized bunch of No-on-W folks into a lean, mean, fundraising and public outreach machine. Mark Shaefer worked with the No on W Committee to raise a significant amount of funds for the PAC, a feat that few thought were possible considering the dearth of funds for 2014’s Measure S.  Last but certainly not least is Forrest Hurd, a father whose articulate and compelling story about how Measure W will harm his son Silas’ very life has reverberated throughout the State and nation.  The list of these rising stars goes on and on.
The Sheriff could have gone for the old fashioned “divide and conquer” method that some Bay Area cities are doing by giving out one or two permits, and then over-regulating those to death.  But instead he chose to unite us with a singular goal, and spawned a quick rise of articulate, well trained, and energetic cannabis superstars.  I could not have handpicked a better team of advocates to embark on the post-W journey with (whatever that may be) and, for that, I’m again grateful to the Sheriff for a new cadre of pro-regulation heavyweights that he created.  And it will not be long before others rise as well, as folks are becoming less and less scared of law enforcement retaliation with each passing day, particularly as they can now take safety in the great numbers of others who are also freely speaking out.  
Finally, it must be noted that the Nevada County pro-regulation community united against W in a way that we have never done before, precisely because we never had to.  Measure W thus provided the impetus for the rise of a tightly knit and supportive cannabis community, a community that did not exist in this way before January 12th.  Indeed, innumerable and life-lasting connections were made as our people rose to new levels together.  Win or lose, it truly has been a team effort.  With this newly united front, we’ve forever changed the face of cannabis in this community, and this beautiful face is here to stay
At the risk of sounding cliché, please remain encouraged, regardless of what happens on Tuesday.  Measure W’s impact will be fleeting, as it cannot stop the tides of reasonable cannabis regulation sweeping the nation. If it passes, we trod on, united.  So to the future, place your strong hopes there.

Then get back to work.
~Love, heather b.

#NevadaCounty #Rise #NoW

**​My musical meditation for this post is Nas and Damien Marley’s epic Strong Will Continue.  
“Stand up and fight if you know that you’re right and know you will never fail,
Tipping the scale and the wind shall prevail and the boat shall forever sail,
Hey, there ain’t no stopping or cruising,
Even when you’re battered and bruised,
Hold down all the sprinklers on Mt. Olympus,
My god’s tougher than Zeus.”

Basil’s June 7th Voting Guide

*** Heather’s Note:
If you’re from Nevada County, you are hopefully lucky enough to know and love Basil McMahon, an inspiring local artist and advocate.  Basil put out his voting guide for the June 7th election, and he’s on such point that I had to share.  See you at the polls!

Basil’s Voting Guide:

Here are my (Basil’s) endorsements for the California primary ballot. This is a voter-guide “cheat sheet” for down-ballot and local Nevada County races, so you don’t have to go out and do the extra research. Investigate. Speak up. Own your beliefs. Question Authority. Always vote, even if you spoil the ballot.
Fight like hell for your right to vote!

Thank you to everyone whose reached out to ask me- I’m honored that you would take my opinions into consideration. Take them with a critical awareness, and a grain of salt. I’m always open to learning, listening, and changing my mind. This time around, the ballot is pretty short, so I added some extra commentary. These are my own opinions and do not reflect those of any organization.

FOR MORE INFORMATION on progressive candidates to support in other races you can start here:


Bernie F*cking Sanders

Never in my life have i felt so proud to be able to support a presidential candidate. This is the kind of moment that defines a generation politically. Back on the day when he announced and I was posting left and right about feelin the bern, I would never have guessed he would get this far. RESPECT. If Bernie wins California by something like 75% to 25%, he could mathematically overtake Clinton in the pledged delegate count. That, unfortunately, is extremely unlikely to happen. Never give up if there’s still a mathematical possibility, but don’t fool yourself of the chances. If Clinton secures the nomination, low information voters and young millenials who have internalized their disenfranchisement and become disillusioned with the democratic process (heres looking at U!) will be quick to look for explanations as to why Bernie diddn’t win- and the most convenient explanations will be the ones that reinforce their worst suspicions about the election process being rigged. My only hope is that enthusiasm for Bernie Sanders, the dude who has been fighting from within the system for social and economic justice since before your parents were born, doesn’t turn into jaded apathy and suspicion of the “system” just because the results don’t reflect your preferred outcome. Are you going to give up fighting just because of the results of one rigged primary battle? Bernie wouldn’t do that 2 u now would he. He’s in it for the long haul.

Keep in mind, whoever the democrats nominate will be the last and only person standing in the way of a neo-fascist clown assuming the presidency. Yeah, it blows. Fun times!!
Fortunately for you, California Voter, you live in a safely democratic state, and you can vote for whoever you damn well please come november without worrying that voting for your conscience might run the risk of letting Trump win. Unless everyone else does, in which case, your American Individualism is running right up into your need to vote strategically. I know, i know, its hella awkward.

I will not however, in good conscience, recommend any vote that would increase the chances of a Trump presidency.


Kamala Harris

The current Attorney General of California is running to replace retiring senator Barbara Boxer (D) in a crowded field. The top two candidates will go to a runoff in November. Expect Harris (frontrunner) to go up against Loretta Sanchez, another democrat with less reliable ‘progressive’ credentials (every democrats’ favorite buzzword). Some people jokingly suggest Kamala Harris is the new female Obama. Elizabeth Warren has come out with a full force endorsement. A (relatively) progressive woman of mixed ethnicity in the United States Senate? we could use more of those.


Jeff Gerlach (NPP)

This is our “House of Represenatives” Congressperson seat. District 1 covers the entire north-eastern part of the state. Doug La Malfa, often photographed with his cowboy hat, is firmly entrenched in this safe republican seat. Unfortunately, due to partisan gerrymandering, District 1 is drawn up to be extremely difficult for a progressive candidate to win. Heidi Hall (now running for a Nevada County Supervisors seat) put up a formidable effort against La Malfa in last election cycle in 2014. Watching Hall debate La Malfa during this campaign, I learned that our current House Rep denies the existence of global warming, supports fracking, vilifies the obama EPA and generally personifies the worst characteristics of a tea-party obstructionist in congress. Yee Haw. I also gained alot of respect for Heidi Hall, who spoke persuasively and forcefully for not just progressive ideals, but simple rational thinking.

Unfortunately, La Malfa’s seat is a safe republican seat that no democrat, no matter how centrist, is likely to be able to steal away. Fortunately, that means you get to vote your conscience!

Jeff Gerlach has been a visible and consistent participant at local events concerning medical marijuana and has supported the efforts of the Nevada County California Growers Association. He has endorsed Bernie, stands for many progressive causes and has as good a chance as any unaffiliated candidate to stick it to the man.

— STATE SENATE Distrct 1

Rob Rowen (DEM)

Rowen is the only democrat running against Ted Gaines, the republican whose held the seat since 2011. Gaines diddn’t even bother to show up at a recent local candidates forum, hosted by the league of women voters- and shows his disdain for public deliberation. Jerkface.

Brian Dahle, the republican whose held the seat since 2012, is running unopposed. Write in a candidate. Perhaps “Banksy,” or “Hunter S. Thomson.”



Richard W. Harris

Richard Harris, a local insurance company professional, decided to step into the county supervisor race last minute against Ed Scofield, who is running for his third term in office representing the South County district. It takes a great deal of courage and character to stand up and offer yourself to public service, especially when competing against an established incumbent. I am especially grateful that Mr. Harris decided to stand for office, considering Ed Scofield ran un-opposed in the last election cycle (and did so only months after pushing hard to enact the highly restrictive marijuana growing ordinance of 2012). It was a unfortunate reflection of how poorly organized the progressive opposition was at the time that the community could let Scofield and his favored special interest groups stand unopposed in south county.
Scofield has been a stalwart opponent of medical marijuana ever since i moved to Nevada County. He was, notably, the only one out of the 5 supervisors who refused an invitation from the NC Cal Growers Association to have a one-on-one meeting after measure S failed in 2014. Unfortunately, the loudest and most influential voting bloc in South County is the ASPOA (Alta Sierra Property Owners Association), and Scofield is their main man.

Harris has reportedly been fighting back against a smear campaign, claiming he is a “big time” grower and one-issue candidate. Characters like Sheriff Keith Royal, Supervisor Ed Scofield and Don Besse of SAM have been implicated in accusations of slandering Harris, who recently penned a letter attesting to the fact that he has in years past grown 12 plants- and no more than 12 plants- to support the medical needs of his daughter, who has a debilitating disease.

This all speaks to the courage and character that it takes to put your hat in the ring and stand for local elected office. It is a sad testament to the tenor of county politics that a good citizen’s character would be impugned for simply being a cannabis provider for his own daughter’s medical needs. Dirty politics indeed.


Heidi Hall
Dwane Strawser

In District 2, two candidates are competing to replace retiring incumbent Nate Beason. Regardless of the outcome of the race between Hall and Strawser, the county will be much better off with Beason in the rear-view mirror. He has been an obstacle to progress in more ways than I can count. He played a principal role in pushing through the county’s outside events sound ordinance, which dictates that if you host more than 50 people on your private property after 10PM, you have to obtain a special permit from the sheriffs department. The consternation caused by this contentious edict alienated even some of the board’s more traditional allies, like the vinyards, the wedding industry, and the NC chamber of commerce. Nice work.

Now District 2 (which includes Nevada City and much of municipal Grass Valley) is presented with two very different options for who should take over the vacancy left by Beason. Heidi Hall- manager with the State Department of Water Resources (endorsed by the NC Democrats), and Dwane Strawser- Grass Valley City Councilman and bike shop owner (Endorsed by the NC Republican Party).

There is much ado concerning who is best suited to demonstrate leadership and effectiveness in Nevada County’s open supervisorial seat. In an era of conservative dominance on the county board AKA the Old Boys Club, some suggest that an outspoken advocate for progressive issues (especially if their voice is only one out of five) will be sidelined and marginalized- this is the spectre of political isolation that candidate Heidi Hall is combating. This veiled accusation- that she might be an ineffectual leader because she is outspoken and would be politically marginalized- is compounded by the fact that she is, of course, female, unlike the rest of the cowboys that runs the BOS.

This to me seems to be a classic example of patriarchy operating in the political sphere, which functions to dismiss and minimize the potential of a woman’s competency and efficacy in public roles of leadership traditionally reserved for men. Basically, its hella wack and I personally think that a woman’s voice, and wisdom, on the Board of Supervisors is sorely needed- particularly if that female voice speaks out in support of environmental justice, community diversity and democratic transparency. Mrs. Hall has shown courage and a willingness to be proactive and transparent in stating her positions, including a No vote on Measure W. If she is successful in her election, she will be an integral ally in the cause of smart and effective MMJ regulations in the county.

Dwane Strawser, her opponent, also running for District 1 Supervisor, does not fit into the neat “Republican” box that most people are trying to stick him into. He was recently a democrat, but changed his party affiliation to “Decline to State” shortly before this election. He has been endorsed by the local republican party, and has received a significant amount of funding from a tea-party affiliated PAC called Citizens for Good Governance. He has accepted these endorsements without protest, and it brings up concerns about the influence of money in politics that mirror the concerns clearly evident on the national political scene. Clearly, many on the right think he is a good safe investment.

Strawser has so far been unwilling to take a position on Measure W. This has been a red-line that many in the community view as disqualifying- they complain, rightfully so, that if you are going to stand as a public official, you should at least stand for something- one way or another. He has been accused of not having principles, and of wanting to play each side off the other for political gain.

My sense, after talking with Mr. Strawser about Measure W for some time, is that there is more nuance here than most people are willing to see. Strawser has shown a concerted effort to educate himself on the issue of Medical Marijuana in the county and what I feel like is a sincere intent to engage on the issue with the NC Cal Growers Association. In short, he has been alot more interested in dialogue and problem-solving than Nate Beason. He understands that Medical Cannabis is a big part of the local community and that we won’t be backing off this issue, even if measure W passes. He has shown a willingness to listen and seems sincere in his desire to find common ground to work through some of the problems the community is facing. If he ends up winning the election, he will be a key ally (despite whatever political stripes you want to paint on him) in crafting local policies which provide a regulated path forwards for good stewards of MMJ cultivation in Nevada County.


Yes. I think.

Vote No

Vote Hell No

Thanks for reading. 🙂 ~Basil. 

What the County Isn’t Telling Us About Their Cannabis Initiative

Only once in the conversation about Nevada County cannabis cultivation have we heard the Sheriff suggest “an overturn of the ban could lead to the formation of a committee that would search for alternatives to an outright prohibition on outdoor grows.” Not a word of this possibility was hinted at the Board of Supervisors meeting on January 12, nor in the official numerous statements in the fallout over the poorly drafted language of the two enactments, nor even in the purported “intent” language the Board will ratified on February 9th.

If indeed it is true that a “No” vote in June would indeed result in the formation of a commission to “search for alternatives to outright prohibition,” we must ask why the County is keeping this alternative secret, particularly where all parties agree cannabis cultivation is going to continue in spite of the ban: if growers flourished under threat of state and federal arrest, they will be undaunted by a civil land-use ban.  If it is not true that such a committee will be formed, your Sheriff just straight up lied to you.  Only one of those two things can be true. 

However, the Sheriff already conceded the ban will be ineffective as he immediately doubled his helicopter budget mere days after the ban was enacted. If the urgency ordinance was expected to be effective, why would the Sheriff need twice as many resources to locate gardens from the air? He wouldn’t.

And when all parties agree outright prohibition won’t work, but enact it anyway, the governmental purpose cannot be to stop the prohibited conduct. There must be another reason.  So what is the real purpose of the cultivation ban in Nevada County?

Its simple…

By expanding control over the subject matter, the Sheriff can shape discourse about cultivation to suit his partisan position (and the doubling of his budget) as we move towards the end of prohibition. We saw this play out at the BOS meeting where photos of gardens were purported to be “bad actors.” I was familiar with those photos, as many were of my clients’ gardens. The overwhelming majority were not diverting water and were “organic. None were cited because of smell.  Instead, the Sheriff located the gardens by air and called the “complaint” into the abatement unit themselves.

The Board sadly allowed the Sheriff to contort these “facts” to support a civil ban, which the Sheriff immediately bootstrapped into a need for increased crime surveillance. The need for more helicopters will soon become a need for more officers, and so on, ad infinitum

Rather than verify the Sheriff’s “facts,” the Supervisors rushed to enact a law they did not understand, as was made clear when they admitted the “emergency” ordinance will continue regardless of the June election. Then they incredulously downplayed the importance of their vote by demeaning compliance, suggesting growers violate the law.  Our Board Chair, Dan Miller, stated, “If you’re growing one, two plants outside… I don’t think there’s gonna be an issue.” He joked no one would notice cannabis plants placed inside a patch of artichokes, suggesting a manner to elude detection.  At the Town Hall meeting on the Ridge, Supervisor Hank Weston said growing outside was okay if neighbors didn’t complain, contradicting the clear message of the Sheriff’s request to double his helicopters.

How can the Board ask growers to respect a law the Supervisors don’t respect, particularly after they’ve flaunted the ease of violating it in the faces of those to whom the regulation really matters? When lawmakers irreverently advise the breaking of the very rules they enact, they breed disrespect for the entire rule of law.

After the vote, bitter disappointment spread throughout the community like wildfire, though the disappointment was not limited to the ban, as no one believes the ordinance will curb the tide (and the Sheriff already banked on it to the tune of $55,000). Rather, the bubbling excitement of all stakeholders – the hope that irrational prohibition was subsiding to make way for effective regulation – was thoughtlessly squelched, and with it the trust many of us have been building with patients and growers for decades. 

Instead, the Sheriff hints of a “commission” if-and-only-if we vote “No” on his woefully-drafted and expectedly ineffective ban on June 7th, which brings me back to my question of why the County has not told us a “No” vote could mean the formation of a committee purposed to bring growers into compliance, generate enough revenue to monitor compliance, and unite the community in an unprecedented effort. 

To be sure, if the County wanted effective cannabis policy, they would have sought it from the outset. However, as discussed above, effective regulation is not their point, lest the Sheriff’s role in the conversation (and thus his budget) be reduced.

When voting in June, please remember a “No” vote is a vote for regulations that work.

#NevadaCounty #NoW #Rise 

*Originally posted as Op/Ed on YubaNet here: What the County Isn’t Telling Us About Their Cannabis Initiative

The Future of Cannabis Cultivation in a Banned County.

The story is so often repeated in my ears that it’s become a mantra for the vast majority of the cannabis growers these days: “I want to be in compliance. I want to do things right.”  The laws that define what it means to be in “compliance,” however, recently underwent a dramatic shift with the new regulations passed in Sacramento last October, the Medical Marijuana Regulation and Safety Act (“MMRSA”).  MMRSA abolishes the old-school “collective/cooperative” model in about three years, which fundamentally changes the game.  This article is dedicated to what laws will be affecting NorCal growers during that interim period before MMRSA becomes mandated and the old collective/cooperative model is abolished.
To fully understand the transition into these new regulations, I must paint an overview of the laws relating to cannabis cultivation.  Currently, there are three distinct tiers of law that all growers should be aware of in this changing legal landscape; (1) civil/land-use ordinances,  (2) state law, and (3) federal law.  It looks like this:
Fed Law
State Law
County/City Civil Ordinance Law
Tier 1, Civil Land Use
The first tier is the land-use ordinances that are set by the locality (City and/or County) and are civil in nature.  The closer one is to the land, the more authority the government has to regulate the use of that land. So when it comes to the particular uses of particular land, City ordinances generally trump County, County ordinances trump State, and the State trumps the Feds.  That system makes sense, of course, because we don’t want Los Angeles telling us how to regulate the use of the North San Juan Ridge, nor do we want the Feds telling Nevada City what kind of businesses are acceptable downtown.  The most important thing to note about local ordinances is that they are civil, and thus violations are non-arrestable public nuisances, for now.  Cops can seize your plants, they can charge you extravagant fines, but they cannot cage you.  
Tier 2, State Law
The second tier is State Law, and is comprised of Prop 215, the Medical Marijuana Program, and now MMRSA.  A violation of the State Law is a felony criminal offense, which means they can cage you for violating these laws.  There is no “misdemeanor” cultivation crime in California: its either 100% a felony or 100% legal.   Currently under California law, there are three and only three ways any cannabis cultivation-related conduct is legal: if the cultivation is occurring (1) for your own personal use, (2) for the use of someone for whom you are their nurse or primary caretaker, and (3) on the behalf of a valid collective or cooperative.   The new MMRSA laws abolish this third category, the collective/cooperative, one year from the date the State licenses start being issued.  The State has said they expect to issue licenses in early 2018, which means collectives/cooperatives will protect you only until early 2019.  If you are operating in what I call a “ban county,” you better stay tuned for that date.  Know this!
​MMRSA fundamentally changes the game in that it, in essence, requires everyone have a state license for any and all commercial cannabis-related activity. Additionally, it also mandates they have permission from their local City or County as a prerequisite to obtaining the state license.  That means, before you can even ask the State of California for a license to cultivate cannabis, you must prove that your City or County has given you a permit or other authorization.  
Let me repeat this last sentence again:  Before you can even ask the State of California for a license to cultivate cannabis, you must prove that your City or County has given you a permit or other authorization.  
As we are all aware, the enactment of MMRSA catapulted many City Attorneys and County Counsels around the State to thoughtlessly enact full-scale bans.  Thus, once MMRSA abolishes the collectives and cooperatives, you wont be able to be arrested for violations of the local ban, but you won’t be able to get your state license either.  And without a state license, any and all cultivation activity will be a straight up felony.   Yes, MMRSA does give you about three years to get your state license but, if you live or work in a “ban county,” you will not be able to get that license.  So if you are in a “ban county” when collectives/cooperatives die out, your choices are simple: stop growing, move, or be a felon.  It’s that simple.  
Additionally, folks in “ban counties” must be aware that law enforcement will not be happy to find out that you are operating in spite of a civil ban.  Thus, presume they will seek you out with vigor (and we know the Nevada County Sheriff will do so because he already doubled his helicopter budget) and, when they find you, they will be trying hard to arrest you to build up their anti-cannabis campaign.  So please don’t give them that pleasure: (1) be kind, but say nothing, (2) do not consent to searches, (3) hand them your collective/cooperative papers that you had ready and waiting for them, (4) make sure that your attorney’s business cards are handy. 
Tier 3, Federal Law
The third tier is Federal Law, under which the cultivation of cannabis has no medical defense and carries decade-long mandatory minimums as penalties.   In August of 2013, the Feds said they would hold off prosecutions in States that have enacted a robust “regulatory scheme,” such as MMRSA.  However, it must also be noted here that the Feds will continue to prosecute cases where money from the sale of marijuana goes to “criminal enterprises,” even in California.  Thus, if you cannot get a local permit under MMRSA, any cannabis cultivation for financial gain is now a “criminal enterprise” that could bring one under the federal government’s criminal purview as well as the State.
So yes, it’s a huge risk to work in a City or County that bans cultivation after the collective/cooperative defense is abolished.  Maybe not today, but it will certainly be illegal to continue on in usual fashion once the dust from MMRSA settles over the next three years.  And since the legalization initiative expected to be on the November 2016 ballot does little to help the situation, this is the world we are living in for perhaps decades to come, particularly if your County votes to uphold a ban (making it bulletproof), as well as if the Feds keep cannabis a Schedule I drug (#feelthebern). 
Please note that a good attorney cannot advise you to violate even a civil ordinance.  We can only advise you what your risks are, so that your decision is appropriately informed, but the choice to engage in cannabis-related conduct in spite of local, state and federal prohibition, is on you.   One thing is for sure, if you live in a “ban county,” but you don’t vote or donate to the groups working towards cannabis regulations, your County will continue to stay a “ban county,” soon bringing your conduct under State and Federal criminal law. 
In closing, I must say that I sometimes feel a bit tricked by MMRSA.  Growers were asked to come out of the cannabis “closet,” and then the government shut the door behind them, forever locking them inside this new world.  But, as I’ve said before and I’ll say again, it’s time to accept what now is, and work to shape it for the better.  Righteous cultivators are the foremothers and forefathers of a new era for a medicine that can cure cancer and eradicate plastics.  Our heavy work has only just begun.  If indeed you have chosen cannabis cultivation as your life’s work, you must adapt or be left behind.  
As always, I end my post with a musical meditation, which today is Lauryn Hill’s “Lost Ones.”  ​

My thoughts on the Yuba County narc detective’s recent arrest for trafficking 247 pounds of cannabis out of state.

I respectfully reject the SacBee’s quote attributed to me in their recent article regarding Yuba County narcotics detective Chris Heath’s arrest for transporting 247 pounds of cannabis in Pennsylvania while armed with his duty gun and $11,000.  The reporter opened up the conversation by asking me if Heath’s situation “was like catnip” for attorneys like me.  I laughed, and joked that it was more like straight vodka.  The question was so silly that I thought the real interview started after that.  Lesson learned. 

Each and every one of my clients, and certainly anyone who has ever heard me speak publicly about the current state of cannabis law, knows that I take my task as a medical cannabis lawyer extremely seriously, perhaps to a fault.  Of course my early visceral reaction to discovery of Agent Heath’s abhorrent conduct was a brief spat of laughter due to the comic hypocrisy and fleeting moment of vindication, though under no circumstances do I think this is the time to celebrate with trite jokes.  Quite to the contrary, when a narcotics detective assigned to the investigation of cannabis cultivation in a County that has enforced a per se prohibition of all cannabis-related conduct blatantly dismisses both state and federal prohibition to engage in the sophisticated interstate trafficking of marijuana, a far more pernicious state of affairs become evident. What must this incident teach us?  Certainly Agent Heath’s actions do not teaching us that we act like cats after consuming catnip (I’m not a cat person, so I’m not even sure what this means. Do cats get drunk on catnip? Is it like caffeine?).  

First and foremost, I do not see how we can ignore that both Yuba and Butte Counties have prohibited the distribution of cannabis by banning dispensaries, as well as the cultivation of cannabis (Yuba to a slightly greater extent).  Both counties are known for aggressively prosecuting violations of the state law as well, creating a culture in their local government (law enforcement included) that vilifies and criminalizes any and all cannabis-related conduct.  However, most stakeholders seem to agree that cannabis-related activity is going to continue to proliferate in NorCal, in spite of the flood of local bans: if growers couldn’t be stopped under threat of state or federal arrest, they certainly can’t be stopped by a civil land-use ban.  Thus, when a grower has decided to continue with what is often times his or her life’s work in the face of a ban, he or she will just take greater precautions to not get caught, which often includes moving further into the woods and becoming more unregulated.  Without regulation, there will be a decline in good management practices in the rush to harvest quick, and the criminal mindset will undoubtedly fester. 

This phenomenon is supported by Agent Heath’s own statement to me early in November when I asked him, off the record in a case where he was testifying against my client, if he had seen a reduction in the number of grows in Yuba since the ban.  Over the course of November (the height of the NorCal outdoor season), I asked that same question to Agent Heath, another Yuba County Deputy assigned to marijuana abatement, and two Code Compliance officers, and each agreed that the number of grows had remained about the same, but that the sizes of the grows had increased, as had the trash around the gardens.  In Heath’s particular and very sad situation, this criminal mindset festered right on into Yuba County’s own Narcotics Task Force.

Secondly, how we want to treat Agent Heath now that he’s been caught speaks volumes about our various positions on cannabis prohibition in this new era.  While many rejoiced in the streets, a bay area attorney whom I admire, John Hamasaki, poignantly suggested that he didn’t agree with prosecuting Agent Heath for illegal trafficking because the cannabis laws are arcane and unjust in-an-of themselves.  Although I admittedly happen to be one of those people who sees great value in “reinventing the enemy’s language,” or using the power structures of the oppressor against them, John’s got a point.  If we want to abolish the criminal prohibition of marijuana, prosecution of anyone at all under such laws becomes inappropriate even here.  While Agent Heath would clearly constitute a per se bad actor under every interpretation of California’s cannabis laws, the argument is that, once we say even one prosecution for cannabis is appropriate, we’ve imposed a “moral center” for cannabis crime; a standard by which certain marijuana distribution is right (i.e. legal) and some is wrong (i.e. criminal).  Arguably, if we truly deem the substance itself to be non-deserving of criminal ramifications, then marijuana conduct should not constitute a public offense under any context.  I get it.  

But clearly the Chris Heath scenario is somehow different, or else why would so many in my area (Nevada/Yuba County) rejoice, particularly when those rejoicing are the ones who would usually lament the news of any random NorCal grower getting picked up out of state with 247 pounds?  The answer is obvious, of course: Heath violated the public trust.  And though I was raised in an era where I trusted the local marijuana growers a lot more than I trusted the racist cops who (on a good day) were “just doing their job” of enforcing nonsensical marijuana laws, meaning my trust in law enforcement was low from the outset, even I was incredulous to my very core when I learned of Agent Heath’s arrest.  The breadth of this violation of an officer’s solemn duty to protect and serve is nothing less than gut wrenching.   

Sadly, this is not the first time this has happened.  There was Jason Fredricksson in 2011, a San Leandro Police narcotics detective who was caught selling cannabis he stole from cases he was investigating. And who could forget the federal marshal who was federally indicted for robbing NorCal marijuana growers at gunpoint in 2014? (While that was the only crime for which the US Marshall was caught, he is also rumored to be responsible for the rash of marijuana robberies here in Nevada County after the first summertime round of light deprivations greenhouses are harvested in July.)  An El Dorado County Sheriff was arrested last year for stealing a bevy of drugs from evidence lockers, and I just heard about a Texas Sheriffs Deputy was indicated last for conspiring to distribute more than a ton (over 2,000 pounds!) of marijuana in that state.  The list does not stop there, not even close. 

I suppose it would be the more evolved course of action to demand our state and federal prosecutors refrain from charging these bad actors with violations of the criminal codes relating to cannabis, as there are likely more than enough criminal codes relating to the violation of their public oaths and various ancillary crimes (conspiring to cross state lines to commit a felony, for example) to put cops like these away for a long time. 

But at the same time, fuck those guys… 

In short, the answer remains unclear to me.  So what can I say I’ve I learned from this incident? Not much I suppose, except that reporters don’t have an “off the record” button and that cops like to transport marijuana just as much as the next guy.   

But the theoretical queries our community has been debating for decades about how to treat cannabis-related conduct in this new era stay the same, only with a new anecdotal feather in our cap.  As was made clear in my unreported comments to the reporter, this is an opportunity to discuss how civil bans and vehement criminal prosecutions make the Agent Heaths of the world a possibility.   

One thing does remain clear in all of this, however; this is no time for shallow celebration. And this sad situation is nothing like catnip (whatever the heck that is).  

Tips for a Happy Harvest

Hello and Happy Harvest to all from The Law Offices of Heather L. Burke! 

It seems we began harvest a little early this year and that “end of the season” work is in full effect already, even on this first day of October.  Harvest means its time to hunker down and protect what you’ve poured your heart and soul into over the past year.  In order to keep safe and happy during the upcoming month or two, here’s a few tips from the Law Office of Heather Burke for a Happy Harvest season.

1.     Strive for a Legal Trim.

In California, the only way that your trim scene is legal is if (1) you are the only trimmer and you are trimming your own personal cannabis for the year, (2) you are trimming as a caregiver for someone who you have consistently “assumed responsibility for the housing, health and safety” for, or (3) the most likely scenario, where you and your workers are part of a legitimate medical cannabis collective or cooperative.  

Please know that, in order to be part of the collective, everyone trimming the cannabis must be a member of the collective with a valid medical cannabis recommendation.  So that means when you hire a super hottie (guy or gal) from South America or some European nation that just showed up in Nevada County after Burning Man, hangs out on Commercial Street or on the Ridge with scissors around their neck, and does not have a medical cannabis recommendation, you are risking a felony case for yourself and everyone else in order to have that hottie work at your spot.  If that’s a risk you’re willing to take, so be it.  But be aware that your decision subjects you, the hottie, and all the other workers to a felony conviction.  Do so at your own risk and realize your decision may negate your entire year’s work.  If you have any desire to be wise, ask that hottie out on a date, but do not invite them to work for you this year or any other year until you are legally allowed to hire non-patient processors.  (Side note: AB 266 will allow you to hire non-patients, but is not the law just yet and processing [i.e. trimming] will still be a straight felony until then.)  

Simply put, do what you can to be legal.  And if you have the chance to choose a worker who is already a patient who can join your collective, or one who cannot because of their immigration status, be wise and choose the patient so you don’t lose your collective defense and turn a year’s worth of legal work into a felony.

2.     Trim Season is a Time for Happy Work, but it is Not a Time to Rage.

A common downfall of a few trim scenes is that some folks come to trim for the specific purpose of partying, using illegal drugs, and otherwise engaging in debauchery.  While that scene is quickly losing credibility in an industry that is arising to take a place of honor in the mainstream, please remember that this is NOT the time to do a bunch of drugs, get wasted, and try to hook up with randoms.  I repeat: THIS IS NOT THE TIME TO DO DRUGS, GET WASTED OR TRY TO HOOK UP WITH RANDOMS.  This is “Game On” time for your entire year’s work.  It is instead the time to be at your highest energetic level, and to put your best energy into this medicine that is about to be released to medical cannabis patients around the state.  So take this opportunity to abstain from alcohol or other unnecessary intoxicants if possible, increase your physical activity such as yoga or running, and take that extra moment to love on your partner who has to take care of the house and kids in your absence.   

Also, since many trim scenes are only arguably legal under current California law, particularly where even one of the trimmers is not a member of the collective, your entire season of otherwise lawful conduct can be transformed into an illegal FELONY when the trim scene is not conducted by members of the collective.  With that legal vulnerability, why would you risk your year to have a month-long party that is costly, reduces your work productivity, and may transform your legal work into a felony?  Trim is not the time to rage, but is instead the time that your responsibility should actually tighten up.  

And while this should go without saying, its sad that I still have to stress that you should not invite cokeheads, other druggies or straight idiots to your work.  God knows there are plenty of them in town, but they should be shunned at this time of year more than ever. And seriously, do not allow folks on probation or who have an active “4th Waiver” to work for you.  I mean, seriously?!

So have a good time with your collective and enjoy each other’s company, but remember that trim is a time for collective work, not for debauchery.  Be happy, but be wise!

3.     Your workers need to be members of your collective.

As noted above, trimmers should be members of your collective in order to legally trim for you.  So make sure that any trimmers sign a document indicating that they are members of your collective before they start any work!!! 

Do this with ALL of your workers, even if they are from out of state or international.  While the law does not technically recognize trimming by non-patients, the law also does not recognize a lab to test medical cannabis or a security guard who works at a dispensary.  That means that there are some types of conduct that are so socially acceptable and even so socially desirable to warrant an accepted exception from criminal law.  While trimming (i.e. processing) is not quite on par with laboratory testing in terms of social acceptability, failing to preserve the collective status of the workers who are not medical cannabis patients precludes your badass defense attorneys (such as myself) from a possible Equal Protection or other Constitutional motion to dismiss any criminal case for treating trimmers different from labs, despite that both trimmers and lab techs “process” cannabis to a similar degree.

So the moral of this story is to preserve any collective defense by having your trimmers join your collective.  Its easy to do, so there is literally no reason not to, except if you are trying hard to be a dumbass.

4.         Trim Should be a Healthy Environment for Processing an Herbal Medicine.

It is very important that your trim is run in a manner that is respectful to the powerful plant medicine that you are working with. 

Please recall that this herb has long been considered the healing of the nation, and that more and more studies are being released showing cannabis’ ability to perhaps cure cancer in some cases by causing apoptosis, or the healthy killing off of unhealthy cells that could devolve into cancer.  So consider your cannabis to be a medicine or, at very least, a food, and treat it as such.  Your workers should wear gloves, the medicine should be stored in a manner that is worthy of a medicine, and please don’t let your workers smoke cigarettes when they are working with the cannabis!  Come on, dude.  

5.         Be Nice to Cops, but Don’t Say Shit.

No one wants to hear the painful truth that cops could raid your trim scene, but we all must remain cognizant that law enforcement is doing everything they can do ferret out and prosecute trim scenes during the next two months.  Be safe rather than sorry.  You are fortunate to live in an area with numerous capable criminal defense attorneys, so call your local lawyer and get some of their business cards to keep by your front door or to hang at the garden, carport, garage, or wherever your workers are posted up.  

Remember that if cops do arrive at your gate, do NOT allow them inside without a warrant, but please be kind to them.  Our law enforcement is just doing their job, which for now still includes the ferreting out of criminals who have infiltrated the medical cannabis marketplace, such as those drug trafficking organizations who are happy to use Avid on their plants, those who illegally divert water from the Yuba, those who don’t mind spilling their excess fert or (gasp!) pesticides into the river, and the slim few who use violence in their dealings (although you should not forget that it was actually a federal agent who was arrested last year for being one of those who were violently robbing gardens in the area).

So please be respectful to law enforcement, but do not roll over for them.  You have rights! Use them! Make sure all of your workers have an attorney’s business card in their wallet or pocket at all times while they are working for you and that they are all advised that the policy of your collective is to request a lawyer and make NO STATEMENTS TO LAW ENFORCEMENT!!!  Don’t be shy about talking to your workers about this, as this advisement is a critical part of your basic due diligence in managing your collective’s trim scene.  If you are too scared or embarrassed to talk about these issues with your workers, then get a new job, since you clearly can’t handle the realities of this work. 

Here’s a short recap of this section, since it is by far the most important piece of this article:

  • Don’t consent to law enforcement entering your property, or any property you are working on. 
  • If cops come on the property for any reason, do not make any statements and in particular do NOT admit that you were trimming!  You are allowed and encouraged to point them to your collective paperwork.
  • Affirmatively ask for your attorney. You must expressly ask for your attorney in order for this right to be properly invoked. 
  • Make sure that any and all workers understand that the previous three rules are the policy of your collective and also that they have the contact information of an attorney.  *Remember that this is your duty as the project manager.  If you don’t like it, get another job.  

6.         Get Prepared for The Sweeping Changes in the Future.

Ya’ll betta recognize that there are sweeping changes coming to trim scenes around the state in the next couple years with AB266 and with the possibility of adult-use (inappropriately, but often, called “recreational”) legalization.  So next year, I will be asking growers and trim scene managers require their workers be registered to vote and that they do vote, but we’re not quite there yet.  It has never been more important, however, to get involved in some way, even if that involvement is merely registering to vote yourself.  If you have 99 full season outdoor plants but you don’t want to “like” the Nevada County Chapter of the California Growers Association on Facebook, your priorities are out of whack, as you are working in full knowledge of law enforcement while at the same time harming your own scene by refusing to take part in our shared future.  Can you really think the DEA is watching your Facebook “likes” but has turned a blind eye to your ½ acre of 10 foot cannabis plants?  Not likely.  So get real and get involved, since it will soon be “do or die” time for your scene. 

Its time to protect what you’ve got or you’re gonna lose it.  #straighttalk 

So that’s about it for now.  Please have a happy and healthy harvest season! 

          Love and Mad Respect, xoxoxox  <3 
          The Law Offices of Heather L. Burke

#protectourfarmers #thefarmerslawyer #legalizeit #cali4life #happyharvest #bewise #hugyourfamily #begoodfamily #realfamilyvalues #itsthattimeagain #hunkerdown #donttalktocops 

*As always, I offer a musical meditation for this post. Today’s is: John Holt, “Police in Helicopter” 

Is Your Grow Legit?

Is Your Grow Legit?

It is no secret that California’s medical cannabis laws are infamously vague.  However, there are numerous common sense moves a smart cannabis grower can do to be as legit as possible in today’s hazy legal environment.  The gist of these moves is grounded in responsible stewardship, both of this plant that has been used medicinally by over a million people in California alone, and also of the natural environment that we fiercely protect here in the Sierra Nevada foothills.

A short summary of State law regarding cannabis gardens is a helpful starting point.  In this state, cannabis cultivation is by default a felony.  However, that illegality is excused (and thus legal) in three situations: (1) where growers can prove they are growing for their own personal medical use, (2) where growers can prove they are growing for the medical use of someone they care for, or (3) where growers can prove they cultivate cannabis for a medical cannabis collective or cooperative.  As the caregiving exception is largely limited to nurses and spouses of dying people, the most commonly available avenue for legitimacy for non-caregiving cultivators today is to operate the garden collectively or a cooperatively when the garden would produce far more cannabis than is needed for their own personal use.

The law that allows a collective or cooperative garden says that patients “who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes” will not be subject to the default felonies that would otherwise apply.  Since this statute does not define what it means to “associate” to “collectively or cooperatively,” law enforcement usually wants cooperatives to be formally registered with the state as a regular business, as dispensaries will often do.  However, the statute is notoriously vague in its inability to define what a “collective” is with any specificity. 

So, while there is no magic paperwork that can be filed to become a collective, there are several clear rules of (a green) thumb to abide by when planning to grow this herb.  The most important of which is that the expected yield of the plants must be reasonably related to the number of patients in the collective cultivation project.  That means that, even if your doctor gives you a “script” for 99 plants or 5 million pounds, a cop will likely have a good chuckle as they slap the cuffs on if you claim those 99 ‘12-footers’ are all for your own personal use.  While a good criminal defense attorney may get a Not Guilty verdict later on down the road because of that recommendation, I don’t know anyone who wants to be arrested and go to a jury trial in order to prove they were legit.  So, be wise; make a yield estimate based on common sense and extrapolate back from there to find a reasonable number of patients that must be in your collective.  There is no exact science for the yield, nor for how much cannabis the various patients can reasonably use, but using wisdom and common sense in planning out your garden will get you far.

Additionally, either make sure the other patients in your collective know that you are cultivating cannabis on their behalf, or to associate with a dispensary for which you become a “member grower.”  BEWARE of any shadeballs, including shady attorneys, who will sell you patient recommendations.  Buying recommendations, even (or especially) from attorneys, may constitute fraud, conspiracy, aiding and abetting, and a litany of other state and federal crimes, for both the attorney, who in reality is nothing more than an illegal script-peddler, and also for the grower in some instances. While a cannabis conviction carries arguably minimal repercussions, convictions for fraud and other crimes related to the buying and selling of scripts would be devastating.  

Another rule of green thumb is that collective grows are supposed to be non-profit.  What “non-profit” means unsurprisingly has been the subject of much debate.  The appellate courts over the past few years have essentially forced cops, prosecutors and trial judges to accept that cultivators can be compensated for their expenses and labor but, until banks are allowed to accept cannabis-related monies, the financial workings of a cannabis garden will always be suspect to law enforcement.  So go meet with a tax attorney or CPA who specializes in medical marijuana issues and take all reasonable precautions with your money.

The final piece of growing legal is to grow green.  Please, never divert water from the Yuba watershed unless you have the proper permits, and always make sure you store and dispose of nutrients or pesticides wisely.  Good gardening demands a symbiotic relationship with the earth, so learn and utilize best management practices, or “BMPs,” for cannabis cultivation.  The foothills are full of organizations working hard to give you the information you need to use these BMPs, so its high time local growers take BMPs seriously. If you are understandably uncomfortable with going to those meetings, quietly seek out those longtime growers in the area who are more than willing to share their green techniques privately. So get with the times and get green.                        

The takeaway from this article is nothing more than to seek wisdom and common sense in all your cannabis-related endeavors.  If you moved to the foothills for the sole purpose of growing cannabis, please respect our land and our community by being a good steward of this venerated plant and of the natural resources intimately involved in growing it. For those who strive to grow legally and use care in their practices, cannabis cultivation is an honorable profession that demands respect.  Let’s keep it that way.

The LawDog’s Marijuana-Land February 2015 update

Hello team,

It has been far too long since I have last posted an update, mostly because we have been singularly focused on remedying federal, state and local laws prohibiting freedom of cannabis-related conduct in ways that have never-ever-ever been seen before in this Nation’s history, so please forgive the long hiatus. As most of you know, I like to tier my discussions of cannabis law by jurisdiction; federal, state, and local.  So I’ll stay true to form here and start with the most exciting update: the Feds.

Federal Happenings:

As you all likely are aware, the case that my colleague Zenia Gilg and I have pending before the Eastern District of California in Sacramento went to an exciting and historic evidentiary hearing last October. I’m not going to lie: it was a major event in canna-history and was nothing short of a post-apocalyptic Good v. Evil battle.  After the hearing, the parties filed perhaps thousands of pages of evidence, and hundreds of pages of briefing.  (Yes, my wrists are still hurting from so much typing!) On February 11, 2015, we had a final oral argument where our esteemed judge took the matter under submission and indicated she will return a verdict within 30 days.

More about that hearing can be found in Time Magazine online here: and also by one of the best canna-law scholars around today, Jeremy Daw of The Leaf Online here:

Whether the judge rules for us or against us, the decision is of epic proportions, so I’ll leave it to the real legal scholars such as The Leaf Online to dissect more succinctly.  However, our case appears to be just one of many facets evidencing the failure of the war on marijuana, as every single day I wake up to more news that supports that marijuana’s federal scheduling is utterly nonsensical.  This of course includes U.S. Representative Blumenauer’s (yes, the adorable bow-tie wearing Congressman from Oregon) and Representative Polis’ (of the “interrogated DEA Administrator Michelle Leonhart and made her look like an idiot in 2012″ fame) recent introduction of two bills that would remove marijuana from Schedule I and tax it like alcohol.  (You can follow the Regulate Marijuana Like Alcohol Act here:  H.R. 1013.)  Although I understand similar bills have been introduced, there is more support today than ever, so these bills are in a truly unique position to actually move forward.

Also, since the last time I blogged, other critical events have occurred that I’ll simply list here to aid your mental digestion:

(1) Congress revoked any and all Department of Justice (DOJ) funds to investigate and prosecute what Congress itself dubbed “medical marijuana” in any State that has approved it.  (Click here.)

(2) Our current U.S. Surgeon General joins Surgeon Generals of the past, such as Jocelyn Elders, in the assessment that cannabis does have some therapeutic application.  (Click here.)

(3) The Federal DOJ has indicated they will lay off of cannabis prosecutions in what they title “Indian Country.”  (Click here.)

(4) Physicians of the Veterans Administration may soon be allowed to recommend medical cannabis to our Nation’s most honored citizens, our war torn veterans.  (Click here.)

So check your local news and/or social media on or about March 11, 2015, as we may have a decision back by then.  I am being asked quite frequently what the ramifications of this case will be on other federal distribution cases that are occurring now around the nation and, while the law says a decision of one trial judge is not binding on another trial judge, one of the federal prosecutors’ numerous below-the-belt strategies here was the repeated reminder to our judge that she would be the one and only judge ever to find an equal protection violation relating to cannabis’ current scheduling.  To be sure, most federal judges fear setting precedent, so a decision in our favor here could mean that other federal judges would gain a strength in consensus, and could cause the wall to quickly tumble around the nation.  Such a fallout would cause Congress to act quickly to reschedule, deschedule, or perhaps (as suggested by the American Medical Association) create a new schedule solely for marijuana.   At this point, we simply do not know which way the judge will rule, nor is it immediately clear what the ramifications will be.  What is clear, however, is that the Schedule I status is nothing short of nonsensical and must be changed so that no more people go to prison for a plant, so today I only ask humbly for your prayers at this very critical time in marijuana history, as there’s nothing left to do but smile, smile, smile.

State Happenings:

Okay, now on to my great State of California!!!!  What’s happening here, you say? Well, among other things, my colleague Omar Figueroa and I recently finished drafting a cannabis legalization initiative called The California Artisan Cannabis Initiative.  Although it is nothing short of kick-ass, Omar and I lack the funds necessary to vet the initiative as a viable option for the 2016 ballot, and more importantly, we both strongly feel that a united effort for cannabis legalization in 2016 is absolutely critical for a successful initiative, so we have offered the draft up to the collective consciousness as somewhat of a drawing board for the groups that do have the money and manpower to get the job done.  Excitingly, we are soon meeting with one of these main groups, and I am really hoping they will take on some of the truly visionary pieces we came up with and move those provisions forward into the frighteningly scientific process of readying a piece of proffered legislation to the mainstream voting process, which entails polling, focus groups, statistics, political advisers, etc., etc., ad infinitum.   Another colleague who does amazing work with the state Legislature in Sacramento also asked if he could present a piece of our initiative language to the legislator(s) in the state Capitol who will likely be introducing a bill this year that would regulate the medical cannabis industry in California.

So there are a ton of possibilities for our work to inform the collaborative efforts that are going to regulate and hopefully legalize cannabis in #Cali in the foreseeable future.  It’s huge and we’re excited!

Although the future is bright, we are still seeing many criminal prosecutions of cannabis-related activity in Counties across the state, so please don’t forget that marijuana still occupies a quasi-legal status in California that leaves many open to criminal liability until our state regulatesandlegalizes this plant.  I am faced every single day with individuals who think their conduct is safe because ganja has swiftly gained social acceptability, but it is high time to be cognizant of the difference between that that which is morally wrong (malum in se) and that which is simply illegal (malum prohibitum).  In days of old, cannabis was a drug, and drug use was considered immoral, i.e. inherently wrong.  While times have clearly changed, as drug addiction is now largely viewed as a disease, and use of cannabis in particular is no longer on par with outdated notions of addiction, particularly where used for medical purposes, (see, DSM V, discussed here), marijuana cultivation, possession, transportation, and distribution remains illegal by default in California.  Thus, it is no longer considered morally wrong, while the default position is illegal.  Although certain marijuana-related conduct may be excused in certain situations (like under our medical marijuana protections), those protections are very limited, and its no secret the overarching medical marijuana laws in this state are vague, at best.  (See here and here.)  And considering the increase in butane and supercritical CO2 machine prosecutions, the state government will pervert the intent of the Compassionate Use Act to continue to put humans in cages at all costs until we, the People, rise to say otherwise.

So my advice is to remember to act with righteousness in all your endeavors, and always use “best practices” in any cannabis-related activity.  As we are perhaps the first industry in history to beg for government regulation, it is up to each and every one of us to become leaders in the areas of environmental and social responsibility as our industry moves towards regulation.  If you are not cultivating or distributing with respect for your brethren and for mankind, then you are not working towards the movement, but against it.  #respect #legalizeit #CaliForever #nuffsaid.

Local Happenings:

Now, on to my home territory of Nevada County, the home of the hippie enclave of Grass Valley and, my current hood, Nevada City.  Yes, we are the new cannabis mecca, as our only traffic jams in these rolling hills are caused by trash bags full of marijuana falling out of cars into the freeway, there is a new TV pilot on AMC (of Breaking Bad fame) about the cannabis-infused life one cannot escape in the foothills, and we deal with the conspicuous influx of “trimmigrants” at every summer’s end.

But this is the land that I love and, in that regard, we “local yocals” have been working on huge moves to alter the local landscape, including the formation of a local chapter of the highly-esteemed Emerald Growers’ Association.  The group will be hosting or co-hosting the following events, so please “like” our Facebook page for updates about these events.

March 10, 2015:  CCPR Grass Valley Legalization Roundtable 

March 21, 2015: SYRCL (The South Yuba River Citizens League) cannabis cultivation discussion

April 3, 2015: Nevada County Emerald Growers Association Meet and Greet Party on the Ridge

April 4, 2015: Nevada County Emerald Growers Association Meet and Greet Party in Nevada City at HeartBass.

So there you have it, my update for all ya’ jurisdictions.  Please be safe, be kind and, most importantly, be ready to leave your comfort zone to be present for the 2016 legalization movement in the greatest State in the Union.  The word on the street is that, if California goes legal, the rest of the Nation will soon as well, so don’t forget this is a moment of historic import with national and even global implications.  We will lose in 2016 without the support of our base, i.e. those who historically do not come out of their early November trim camps to vote, but I hereby put you on blast that your support will be REQUIRED for all of mankind and to make history in 1 year, 8 months, 12 days, or 20 1/2 months, or 620 days from today.  I don’t care how you get there, but ya betta’ be there on November 4, 2016.

In my usual fashion, I end this unusually long post with a musical meditation.  I have recently been called again to the lyrical melodies of the great Lucky Dube, whose spirit left this earth too soon.  I’ve blogged about this particular song before a few years back, but that only makes it all the more poignant, as his words have never rung more true. No more prison for plants!  Lucky Dube, “Prisons,” here:

Know this! #legalizeit #JahBless #California2016 #Rise

Nevada County – Measure S Brings Common Sense Back to Cannabis Cultivation

Fifteen years ago, the thought of any local government authorizing and regulating cannabis cultivation was a pipe dream (pun intended) and I am very grateful to Nevada County for the fact that their current ordinance legitimizes the cultivation of medical cannabis in the first place. Indeed, both Sheriff Royal and County Counsel Barrett-Green emphatically denied any plans to ban all cannabis cultivation if Measure S did not pass, as even the County government appears to understand cannabis cultivation isn’t going anywhere. Quite honestly, there are worse things than the current ordinance, such as a Fresno County-style outright ban. So, for that, I want to give the County “props” where props are due.

With that said, however, its no secret the current cultivation ordinance cannot be reconciled with the realities of how legal, medical, cannabis is grown in this County. And it is not a surprise Ordinance 2349 doesn’t make sense with agricultural realities, since it was enacted as an knee-jerk measure without the reflection afforded the usual process for enacting local laws, and was in large part copied from other counties. Suffice it to say, the current ordinance was created by bureaucrats, however well-intended, who did not understand cannabis gardening and without meaningful input from actual cannabis cultivators.

For instance, the current ordinance does not allow cannabis to be grown on a terraced hill, as the plants have to be located on a contiguous single plane. However, the use of the natural terracing of the County’s sloped landscape is a much better use of our most precious resource: water. Opponents of Measure S argue that cannabis cultivation uses too much water, but this is in part due to requirement that plants be grown in the manner least conducive to water conservation, i.e. a flat, single-plane, garden area. The County’s stated purpose for this nonsensical rule is to make it easier for law enforcement to measure the garden size. Measure S will, however, change the quantity limitations from square footage to a specific plant number, which is undoubtedly easier to quantify.

Another way Measure S brings common sense back to local cannabis cultivation is that it continues to restrict cultivation on residential parcels under two acres. Rather than allowing a “free for all,” as is often posited by opponents to the measure, the ban on growing in small residential parcels and the concurrent allowance under Measure S for 60 mature plants on rural properties greater than 30 acres encourages cannabis patients to move their plants to the outlying areas, and to reduce cannabis plants grown in towns. This push to the more rural areas, again, (surprise!) makes sense.

I should briefly note here the current ordinance puts landowners in the precarious legal position of admitting knowledge of, and consenting to, cannabis cultivation on their rental properties. Since landowners already have full rights to restrict cultivation on their properties, it makes no sense to add more pointless laws to the books when landowners are already protected by State law and by common sense (just put it in the lease!).

For those illegal marijuana grows that steal water and decimate the environment, the conversation on Measure S needs to make clear that neither ordinance applies to gardens grown in violation of State law, as both Measure S and Ordinance 2349 apply only to legal medical cannabis cultivation. Don’t we want to encourage growers to get into compliance so we can regulate their impact on our natural resources, such as water? The current ordinance is so antithetical to the realities of growing cannabis that very few, if any, growers are seeking to be in compliance at the outset of the growing season because 2349 essentially punishes small medical growers for the bad conduct of illegal growers. And the more our County restricts legal cultivation in a manner that is so disconnected with basic principles of gardening (any plant), the more we pave the way for the bad guys in the ever-expanding marijuana marketplace.

We should seek to regain a common sense approach to marijuana cultivation by enacting local legislation that encourages medical cannabis to be grown in outlying areas in environmentally friendly ways that encourage compliance, and thereby force out the illegal drug dealers, thieves, and environmental degradation.  These are just some of the reasons I think a “Yes on S” vote is the right choice to bring common sense back to cannabis cultivation in Nevada County.

As usual, here’s my musical meditation for this post:

Santigold’s “Disparate Youth.”

“Don’t look ahead, there’s stormy weather
Another roadblock in our way
But if we go, we go together
Our hands are tied here if we stay….

…And they all said I was mislead
But now the odds all stand beneath me….”

Why Are Some Nor-Cal Growers Against Legalization?

I’m sure we’ve all begun to notice that many of the folks who used to chant “legalize it, legalize it” now chant the opposite, despite making the entirety of their living in the cannabis industry.  As marijuana legalization or regulation looms over California, I often hear a disconnect between those who want the cannabis laws to move forward, and those who, despite being in the cannabis industry for most of their adult lives, do not want change.  In fact, one prominent cannabis guru I spoke to actually defined the divide as the “activists vs. the growers.”  Although many identify as both, I notice that a lot of Nor Cal growers (and distributors everywhere) do not consider themselves to also be activists per se.  This isn’t a new distinction, but there is a growing partition between the groups that warrants attention because of the critical time our state is entering.  Its do or die time, kids.

Let me tell you a story.  Today I was out with a friend who asked me how long I thought it would be until marijuana was legalized federally.  I first gave them an estimate based on how long it could take if Congress had to do it, which as we all know could take forever (if ever), so I guesstimated 10 years.  But then they asked how long if we get legalization or regulation through a channel other than Congress, i.e. by the judiciary or by executive order.  And, being the optimist I am, I sincerely think we’ve got a couple years left before some branch of the federal government finally says, “okay, enough is enough!”  When I brought the time estimate down from 10 years to 2, they smiled and flipped me off.  They were kidding, of course, but the point is the same as if they were serious: they don’t want marijuana to be legalized because it will take away from their income.  While that’s a humorous example, I have heard numerous growers lately say they hope marijuana does not become legal.  Ever.  Like, never.  Sadly, most admitted without hesitation that they didn’t want to become legal because they would lose money.

Sometimes I think, “are these really the same people who used to run around with chillems saying that ‘herb is the healing of the nation?’”  However, when I hear this, I usually smile and say nothing, but we should all be cognizant that much of it is based on personal financial interests and, in some cases, greed.  Not always, but come on, lets get real.

I’m not sure I have anything very lofty to say about the distinction (I’ll leave that to the commenters), except to recognize it.  And to recognize that sometimes it hurts, man. I developed my  entire career towards cannabis criminal defense and cannabis policy because many of these same friends needed legal help due to to the grossly unjust state and federal marijuana laws.  So sometimes this position feels personal (particularly when the person saying that is someone who I’ve gotten out of legal trouble on more than one occasion).

I mean, money isnt always a bad concern in a capitalist nation, so I can’t fully condemn their position. But there has to be a better way.  The conspiracy theories about Phillip Morris and other shady corporations buying up the marijuana industry and turning it GMO and “chemie” could eventually come true: but only if we, the People, let them.

If we are pissed because our income may be compromised when marijuana is legalized or regulated, it might be a good idea to start the conversation by calling some of the thousands of humans who are still serving lengthy prison sentences for marijuana violations, and ask them if they’d go back and legalize marijuana so they could have skipped their prison sentences. I’m betting they would say yes.

Another point that comes to mind for me is that, if someone produces crappy or chemical-laden cannabis that is not fit for human consumption, then they should get another job.  Though if someone cultivates or distributes quality cannabis, whether for medicinal or adult use, then the market will support them.  People will always pay for quality.  However, if we bury our collective heads in the sand because of fear of how you’ll perform in the marketplace, then not only you will fail in your endeavors, but we will all fail.

We’ve been talking the talk about marijuana’s healing properties for so long and its time to walk the walk.  Herb is the healing of the nation, know this!



Btdubbs, my colleague, Omar Figueroa, and I are currently working with the Legislative Counsel in Sacramento to draft a law that all parties to this industry can get on board with.  Keep a lookout for that and, in the meantime, go register to vote.  Bad laws exist because of good people who don’t vote, so don’t let that happen to the industry we have all dedicated our lives to.

PS, more on the newest Ammiano/ Police Chiefs bill, and also on Zenia Gilg’s and my upcoming evidentiary hearing in the Eastern District of California on the constitutionality of the federal scheduling of cannabis in the coming posts!

Musical meditation: Horace Andy, “Money, money, money, is the root of all evil.”

Big happenings in Heather’s little marijuana land

Well, its been about a month since I’ve posted and, as we’ve all seen, the tidal wave of good news in the federal marijuana scene keeps on a’coming.  As there is so much happening all over the place, this is not intended to be a meta-analysis,  but rather just a short summary of whats happening in my little world, with a focus on the feds.  With that said, here’s the biggest fed news that’s coming across my desk as of late:

First, the U.S. House of Representatives has twice (yeah, you heard that right, TWICE) voted to de-fund the executive branch (law enforcement & prosecution) from investigating and prosecuting marijuana related conduct that is protected in medical and recreational states.  As we all know from watching School House Rocks (still my “go-to” when I need a civics refresher), once the House of Representatives passes a bill, a.k.a. a resolution, it goes to the Senate, where it then goes on to the President and, then, becomes law.  I think the Senate has until September to move the bill along, so be on the lookout for that.  Beware, this is no amendment to the Controlled Substance Act, the federal statutory scheme that relegates marijuana to be the most dangerous drug in the Nation.  I say “the most,” rather than “one of the most,” because National Institute of Drug Abuse [NIDA] Director Dr. Nora Volkow recently admitted before Congress that scientists wanting to study marijuana have to go through several more hoops to get marijuana to study than does any other drug!  She admitted its easier to test heroin and cocaine on human subjects than it is to test marijuana.  When pressed about the rationale for these extra hoops, Dr. Volkow shrugged.  So yeah, a shrug pretty much sums up our federal drug policy today.

Secondly, this morning, the Congressional Committee on Oversight & Government reform held the 5th of a 5 part series on the “mixed signals” the feds are sending with their haphazard marijuana policy.  Today focused on transportation and marijuana, and was surprisingly bland, with the government witnesses (all transportation bureaucrats) admitting that a causal link between THC and marijuana fatalities has not been established at this time.  While they have shown some correlation, even they have to admit that correlation is not causation.  My hero, Rep. Connolly (D. VA) summed up the hearing pretty well:

I just think it is amazing with some of the hyperventilated rhetoric about marijuana use and THC that 50 years after we’ve declared it a class 1 substance, we still don’t enough data to know just how dangerous it is in (regards to) operating a vehicle. That really raises questions about either the classification (of marijuana) itself, whether that makes any sense, or raises serious questions about how our government is operating in terms of the data it does not have and the science it does not know and yet the assertions that we (the federal government) make. That is not a good recipe for rational public policy.

Next, and possibly of the least importance to the legality of the situation, but of great importance to the public discourse on the subject, the New York Times came out very publicly against the fed’s grossly unjust marijuana prohibition (I would call the fed’s stance “draconian,” but that word is just getting old in this context.  Its true…, but too often overused nonetheless.)  I’m not sure that this will have any more impact than the Pope saying marijuana should remain illegal, but I suppose it should be noted.  I also should admit that I didn’t initially think that Gupta’s about-face was a big deal, but he is cited by law-makers left and right, so hopefully the NYT position will do some good, above and beyond simple public perception.  (Side note: I don’t mean to downplay public perception in the movement, but look how far that got us with the 100:1 crack-cocaine to powder-cocaine sentencing disparity: nowhere…. not with the executive or the judiciary, despite the vast public understanding that the law was utterly racist.  I digress…)

Finally, and what I believe to be most importantly, the direct examinations in the federal case ofUnited States v. Pickard in E.D. Cal. (Sac) have been completed, as of this week!  For those of you who have not yet heard my constant blabbering about the historical impact of this case, ya better listen up!

Earlier this year, a federal judge granted our motion for an evidentiary hearing to determine whether cannabis’ current designation as a Schedule I substance violates Equal Protection and, more excitingly, the Equal Sovereignty of the States.  Its a new legal theory had, as far as I know, has never been filed in a federal cannabis case.  Its a pretty big deal to get an evidentiary hearing, very rare indeed.  My colleague, lead counsel Zenia Gilg, and myself, recently filed the written direct exams of our seven witnesses: Dr. Carl Hart, Dr. Gregory Carter, Dr. Phillip Denney, Dr. James Nolan, Chris Conrad, Sgt. Ryan Begin, and Jennie Storms.  I attached the direct exams that have to do with the cannabis science below, including the government witness, Dr. Bertha Madras.  Like I said, federal prosecutors filed the direct examination of their only witness, Dr. Madras, this week too.  It is also attached.  So we go to a hearing on August 18, in just under 3 weeks, where the Court and the parties will decide when to set the live hearing, where each of these witnesses will be testifying in person and will be subject to cross-examination.  The declarations are filled with science, and I’ve had to read them about 100 times to even get the gist, so enjoy if you have the time!

Well, there’s about a billion other things , and the federal wall appears to be crumbling, whether by executive, judicial, or legislative action.  Since I can’t get through everything in this short blog, these are just the biggies on my federal marijuana radar this month.

In sum, my thought is to look out and look alive. Shits gonna be coming down the fed pipeline so quick that the righteous need to be alert.  No time to slack.  As noted by the great Busy Signal in the video (linked below), “We nah go a jail again.”  #Knowthis! #legalizeit

Ps, quick note regarding what’s up in California; my colleague Omar Figueroa and I are meeting with the attorney from the California Office of the Legislative Counsel in a week or two to cement language for the CA regulation/legalization bill (if Tom Ammiano and the Police Chiefs Union doesn’t get to it first, yuck!).  So, another blog about that to follow in the coming weeks.

Dr. Hart Direct Exam (filed) 

Denney Direct (Filed)

Carter Direct (Filed)

Bertha Madras PHD Declaration Direct Exam July 29 2014

As always, my musical meditation of the moment.  Busy Signal, “Nah Go Jail Again:”

The Legislative Counsel Initiative Process: The Kick Off

In an effort to make the process of the California cannabis legalization/regulation voter initiative that Omar Figueroa and myself are in the process of crafting for the 2016 election more accessible to the public, and to craft a cannabis legalization or regulation initiative for 2016 that is collaborative, I decided to start this blog for to allow the cannabis friendly community in our great State of California a chance to see inside the process and hopefully be a part of the making of history.  To be clear, when I say collaborative, I mean an initiative that seeks to protect the seriously ill, the mom and pops growers, the large scale cultivators, distributors, and even social cannabis users.  We’re kidding ourselves if we think our state legislature is going to protect those rights, although I appreciate Tom Ammiano’s efforts.  Heck, I appreciate everyone’s efforts.  But plainly Ammiano’s bill isn’t right for our state.  So what next?  Do we, as so many have sadly done, bury our head in the sand and do nothing?  Or do we rise to the occasion to claim those rights we have been fighting for lo’ these many years?  The answer is clear to me and I hope to you as well.

So, to start the process, my colleague Omar Figueroa and I drafted a letter to our state Legislative Counsel asking them to help us draft an initiative according to certain overarching principles that Omar and I and a few of our colleagues identified (and that I’ll discuss in greater detail in a subsequent post). To read the letter and our request, please check out the attached PDF copy of the letter.  Why did we ask the Legislative Counsel to help us write it? Well, in what I presume to be an effort to make government more accessible to the common person, our state law says our Legislative Counsel must draft an initiative for anyone who asks them to, provided the request is (1) supported by 25 elector signatures and (2) there is a reasonable probability that the initiative will be submitted to the voters. See Cal. Government Code § 10243.  The process is called the Legislative Counsel Voter Initiative Process.  A mouthful, huh?  The really cool thing about this process is that this is the same way the Compassionate Use Act was drafted back in the day (it was enacted in 1996, so I’m guessing it was submitted to the Legislative Counsel likely the year or 2 before that).  That means we’re treading on historical ground here, using the same process Peron and the other CUA originators used, which to me makes the process more special.

We easily got the necessary 25 signatures, most from our fellow activists at the Emerald Cup in Santa Rosa, CA on December 14, 2013 (a GREAT event, btw), others mailed in their signatures, and then I got many more at an ASA meeting here in Nevada County (where the ASA group is vibrant!). And viola!  Omar and I submitted the letter and signatures to the Legislative Counsel in the Capitol Building in Sacramento last week and the process began.  The best part of filing it was taking my son into the rooms for the state Assembly and Senate, to see where our state’s legislative action happens.  It was exciting.  I’m surprised how many people don’t know how the federal legislature works, much less so the state, and I often send out the Schoolhouse Rocks videos to anyone who will watch. Those videos are gems of knowledge. No joke.  I digress…

Quickly after we filed the letter, Omar got a call from the Legislative Counsel attorney who was assigned to our initiative request.  The attorney expressed excitement about writing the initiative, which is so cool!  He indicated that he was slammed with work because of the state Legislature’s deadlines for this 2014 session & so he was grateful that we are looking towards the 2016 election, so he can start work on it in a few weeks. We know more about his response to our requests sometime in March, I imagine, but for now we can be sure that we met their basic requirements under the Government Code and that this is happening!  For now, read the attached letter and keep a lookout for more on this soon.

Legislative Counsel letter here:

Legislative Counsel Letter.1.27.14.NO signatures

In closing, my musical meditation for this post is from the great Mos Def, who says: 

“We are alive in amazing times
delicate hearts, diabolical minds

revelations, hatred, love and war.
and more and more and more and more
and more of less than ever before
it’s just too much more for your mind to absorb

It’s scary like hell, but there’s no doubt
we can’t be alive in no time but… NOW!!!” 

This one’s for you, Busy.

Just a few weeks ago, I posted some top rankin’ songs in honor of Buju Banton, penned up in federal prison for the next 7 years. The first song I posted in Buju’s honor was by the Jamaican dancehall artist, Busy Signal, whose song “Jail” has sent dancehalls around the world into a serious jam session, with the entire hall shouting the lyrics in unison.  Its amazing to see hundreds of your brethren shouting, “No, we NOT go to jail again!!!”  The vibe is deep, particularly when those dudes in the dancehall are historically the ones who the police profile and arrest more often than any other group of men in this nation. So they know what they are talking about and there’s no denying its very meaningful.   Sadly, tho, my man Busy just got picked up in Kingston for old drug charges stemming here in the U.S. and was of course denied bail.  Just this morning, he waived any rights to not be extradited and thus he’ll be shipped to the U.S. in a month or so to face his old charges.  I hear the charges are in a state court, rather than a federal court, which to me means there is some hope he’ll be doing a short bid.  Fingers crossed and spirits lifted.  So tonight, I’m reposting “Jail” in his honor, and hoping all the dancehall DJs put this song back in their lineup, so we can all jam down for Busy.   “Like a ship, we gonna sail again…”
I’m dedicating this Gregory Isaacs song to Busy Signal too, “Idren Gone a Jail,” meaning ‘the children have gone to jail.’   Like Gregory said, “when me go to jail, me a go weep and wail.”  And like I have said and will continue to say, no one should be going to jail for drug crimes, especially not these artists who enrich our communities, our lives and our souls.  Gone for now but not forgotten, Busy and Buju.

This one’s for you, Buju.

These top rankin’ songs are dedicated to Buju Banton, who music critics once called the “next Bob Marley,” currently sitting in federal prison in Florida for the next decade for a crime many believe he did not commit. 

Talkin ’bout detention, detention.

The list of reggae songs about the plight of the incarcerated is pretty long, so here are just a few of the best roots songs.  I’ll do another post with some top ranking reggae songs soon, but for now, feel these roots. 
Probably one of the sickest songs about the plight of the incarcerated ever known to mankind, Izzy Vibes’ Jailhouse Rockin.  They said they wrote the song after a trip to Spanish Town prison in Jamaica.  Although the jailers made it seem like everything was cool, they could hear the prisoners locked far away shouting out to them, “everything is not as it seems.”   Know that.

Sometimes you just got those prison blues


Its interesting how many blues songs are about ONE prison in particular, to wit: Folsom Prison (duh).  I included a picture of Folsom so you can see where we house almost 10,000 (or possibly more) incarcerated human beings in max security. And thats just one max security prison in California, think about how many people are in max security in the rest of California and elsewhere in our vast nation? The statistics on just how many people are incarcerated today or have been at some point in the past are staggering.  I refuse to believe that such a huge fraction of our population should be caged in numbers that are setting records all over the globe.  Are we really safer? Studies say no.  Well then why do we keep doing it?  As I head into court this morning to personally see more people sitting in the “in-custody” boxes in the court rooms, waiting patiently to hear how long our government wants to send them down the river, I am befuddled why our government continues to do this. I mean let face it, our separated system of government with all these checks and balances is a brilliant system of government. But when such brilliance is contorted and demeaned by those with a little power, its a slippery slope until even the everyday-Joe’s such as yourself are carted off for our own bid.  Folks always talk about the slippery slope like its impending, but we’re already falling down the slippery slope of mass incarceration and there but for the grace of God go you and I. 

How many more prisons do we need, how many more songs must be sung, till our incarceration happy society realizes the heavy truth about imprisoning humans?  It aint right, kids.  It aint right.

The Classics.

A few tried and true songs that I bet influenced you as well. There are few things in this life as fun as boot stompin’ to Willie Nelson singing “Mama Tried” live… “No one could steer me right.”  -hb

Are the Mass Arrests of the Occupiers the End of the Occupy Movement?

Overview of Legal Grounds for Arresting Occupiers in the First Place: 

    The First Amendment limits the government from making any law “abridging the freeing of speech…or the right of the people peaceably to assemble.” But law enforcement have cited all sorts of laws when arresting the folks on the ground at Occupy.  We’ve all heard of folks getting arrested for trespassing [Penal Code § 602], unlawful camping, the catchall “crime” of disturbing the peace [Penal Code § 415].   But how is the government allowed to arrest us for doing these things when we’re Constitutionally allowed to assemble and talk politics, so long as we’re being peaceful? 

    Despite the mandatory language of the First Amendment, the government actually is allowed to abridge (i.e. limit) speech to some extent and just how much they can limit it actually depends on where you speak to some extent.  That means you can say one thing in one place that you may not be able to say in another place.  And that makes sense to some degree, right?  We can say a lot of things in our homes that we’d never say in public.  Similarly, the government is authorized to limit our ability to speak freely about politics depending on where we are. 

    So in these public parks and sidewalks where the Occupy movement is largely being played out, the law says a restriction on our right to talk about politics must be 1) a reasonable restriction on the “time, place, and manner” of our speech and 2) the law cannot restrict only the political speech (meaning the law cant be based on the content of our speech, i.e. restricting political, but not other types of, speech).   The law also 3) cant be vague or too broad and 4) the government cant have unfettered discretion in such restrictions (meaning the local police chief cant choose who gets to stay and who has to go willie nille since that gives them too much power). 

    Imagine, then, that you’re camping out with your friends in Justin Herman Plaza (hoped to soon be called Bradley Manning Plaza) in San Fran with the other Occupiers and the cops pull you out of your tent at 4 a.m., telling you to 1) leave or 2) get arrested.  Simply put, your options then are to either 1) leave or 2) get arrested.   Its difficult in the heat of the moment to get a copy of the law that they’re threatening to arrest you on, determine if its unconstitutional, and then convince the cop that it is so.   So what they say is going to happen at that point probably will.  

Do These Arrests Really End the Action?

    The ideological quandary there then becomes simply how far you’re willing to take it; are you willing to go to jail and fight your arrest in court, often a long drawn out process reminiscent in some ways of gambling, though here the gamble is with your criminal history with perhaps devastating financial, professional, familial or societal repercussions?  Well that’s up to you, as that’s a highly individual decision left to each protestor. 

    However, the constitutionality of many of the laws Occupiers could be arrested or prosecuted for has yet to be determined and how do we test these laws without being arrested for it, fighting it in court, and possibly appealing it?   Indeed, the arrest and prosecution may be an inherent part of the struggle to get the underlying message out.  Can and will cops continue to arrest the 99 based on unconstitutional laws drafted and enforced by the 1?  Frighteningly, the answer is yes… unless WE SAY NO.   Simple right?  We all know the 1% aren’t going to stop until someone stops them (you’ve heard of the quote “absolute power corrupts absolutely”).

    But if your decision is to change the law by getting arrested, make sure to get a lawyer who wants to fight it with you and not one who will advise you to take a plea without pressing for your (and our) rights.   The entire process is rendered moot by getting arrested and then pleading out to a violation in court when folks get scared with the formality of the courtroom, just like the process is rendered moot when we ask for change and then run scared at the first sight of the fuzz.

    So, while it would be nice if the government didn’t suppress our rights in the first place, they do and that’s a big reason why we’re protesting at all right?   The arrest, prosecution, and appeal process can actually help define the law for our society and for future protests.  We all know of many examples of how our society has changed for the better by the oppressed saying NO to the oppressive regime.   Thus, those arrestees who press on to fight their cases on ideological grounds are to be commended and honored as revolutionaries, and are critically necessary to a free and evolving society. 

    These mass arrests of the Occupiers aren’t the end of their protest then.  On the contrary, if you want it to be, its just the beginning.

Classic Rockers

I grew up listening to these songs and knew all the lyrics to Social D’s songs before I knew any of Johnny Cash’s.  Its a travesty I know, but I’m from So Cal, so it figures (I even used to think Scarlet Begonias was a Sublime song!).  These rock songs moved me even from a young age and I never listened to them without thinking about the songs’ meaning, that good kids were going to prison. 

Jailer, Jailer

We all know Peter Rowan from Old and In the Way, from his work with Grisman, or his varied and amazing solo stuff.  But this song brought it home to me today. Its a must listen.  

“Jailer, jailer, throw away the key…. For my cage is better than your cage.”  - Wow. True that. -hb

Can cops really search your car if they smell weed???


Is the smell of marijuana in your car enough to allow a cop to get you out of the car and search the entire thing?  In short, yes.  The longer answer is that law actually says they should NOT be doing it. But do they? Of course.  And many attorneys assume they can and that a cop’s word about smelling marijuana is impervious and don’t try to fight it.  But they should. 

Here’s the run down: 

You and I have a Fourth Amendment right to be free from unreasonable searches and seizures by law enforcement.  Our forefathers thought this was important because the British government could enter anyone’s house to search & arrest them, without any cause whatsoever.  Just because some snooty constable didn’t like they way a guy dressed, the government could issue “general warrants.”  Well our early government thought that was wrong and thankfully drafted the Fourth Amendment.

This Amendment limits the power of the federal (and now state) governments from searching your house  or arresting (a.k.a. seizing) you or your stuff unless they have a warrant supported by probable cause.  Probable cause to search is generally found where a reasonable person would believe, based on all circumstances known to the officer at the time, that a certain place contains evidence of a crime.  But don’t be fooled by how easily probable cause can be defined here, because its a difficult concept for lawyers and judges alike. 

In a case where there was probable cause to believe a car contained evidence of a crime, such as where an officer personally observed a driver chugging a bottle of tequila while on the freeway, the officer could certainly get a search warrant for that car.  That seems fair, right? But cars move, which means that, by the time an officer got a warrant, the tequila chugging driver would be long gone, probably passed out on his couch at home watching the Chargers lose.   So some judges realized that cars are too “readily mobile” to require search warrants and the judges allowed law enforcement to search a car without a warrant whenever they have probable cause to believe the car will contain evidence of a crime (like empty tequila bottles, etc.).  

So, again, where cars are involved, cops don’t need a warrant to search anywhere in a car they claim evidence of a crime might be (including your trunk or a locked briefcase).  We all have a reduced privacy interest in our vehicle precisely because we can use them to escape.  (Though you’d all know that I can’t get away too fast if you’ve seen my old Rav4, but that’s beside the point.)

Of course, the automobile exception isn’t the only way to get into your car.  They can search your car if they’ve already arrested you or if they are going to impound it, since its now inventory.  However, here we’re assuming a scenario of one sober man with fresh, unburned cannabis in his car, so I’ll leave a discussion of these other exceptions for another scenario.

So, you’re driving down the road and you get pulled over because you have a taillight out and you have some cannabis in the car with you.  The officer walks up to you and asks for your ID and registration, which you politely hand him through the slightly rolled down window.  He or she leans in to grab your documents and says, “do you have any marijuana in there.”  Knowing that you do and that it’s the sticky icky icky icky, so you know it reeks, you reply “Yes. But I have a recommendation!” 

The cop may check your recommendation or they may not.  At this point, its almost irrelevant in their mind.  All they’re thinking is “yes! I smelled it, so I can get in here!” And then they may pull you out and start searching, though they may let you go if you have (1) your medical recommendation documents, (2) they only find a small amount of cannabis (generally under 3 pounds in Sonoma County), and (3) there is no other evidence of sales (like your own incriminating statements/a scale/pay-owe notes/large amounts of cash) or (4) of driving under the influence (again, your incriminating statements/joints in the ashtray/smell of burning marijuana).  If they find other bad evidence, or if they just feel like it, they can and probably will arrest you.  

Whether they arrest you or not, your constitutional right to be free from unreasonable searches and seizures was just violated.  How, you ask?  Well, the prosecution often relies on a case called Strasburg (incidentally arising in our neighboring county of Napa) to say that odor of marijuana is probable cause to search a car.  But that case didn’t really say that at all.  What it actually said was that probable cause was present to search that car in that situation, which presumes that there will be situations when the smell of cannabis alone does not give probable cause.  In Strasburg, the cop saw a suspect smoking a joint in the driver’s seat of a car.  Also, when he asked the kid about the marijuana smell, the kid handed the cop a bag of marijuana but the cop could clearly see a second bag of marijuana in the car.  

So the court in Strasburg relied on two factors to support a finding of probable cause there; first, the kid was obviously smoking in the driver’s seat.  And what do driver’s do? They drive.  That raised the reasonable inference that the kid was going to drive while impaired from smoking.  The second ground was that the cop saw 2 bags of cannabis, though the suspect only handed him one.   Well back in the good ol’ days of 2007, our Legislature had enacted these weight limits on how much weight of cannabis a qualified patient (i.e. someone with a valid recommendation for the therapeutic use of cannabis) could legally possess.  Just last year in 2010, though, our state Supreme Court said that the state and various counties couldn’t really impose those strict weight limits where someone was over the limit, though they still provided a safe harbor from prosecution where patients were under their county limits.

Anyhoo, what this means is that there is no law that says the smell of marijuana alone is sufficient to search your car after you’ve given the officer your valid recommendation, though they’re going to go ahead and do it.  However, in the Strasburg case, the officer reasonably thought the guy may drive after smoking.  Thus if the officer in your case has no cause to believe that you are smoking and driving, then he has less factors to rely on to get into your car.  Also, since the defendant in Strasburg gave the cop one bag, but had another bag of cannabis showing in plain sight in his car, then the cop had reason to believe that the guy was over the 8 ounce limit in effect at that time in Napa.  Thus, if the officer in your case has no cause to believe you have more cannabis that is reasonable, then he again has less factors to rely on to get into your car. 

In Massachusetts, their high court recently held that smell was insuffient to grant probable cause to search a medical cannabis patient’s car and, even in California, a case came out just last month saying smell of cannabis was not sufficient to give probable cause to do a warrantless search of a package.  That means there’s hope in the near future to change this ridiculously abused standard. 

Also, if marijuana becomes legalized to some extent, rather than what we have now (which is mere decriminalization of a still illegal substance for certain people), then probable cause based on odor will further be eroded.  Just think of how many cops lie about smelling cannabis and get into someone’s car, home, etc! It’s a racket, particularly in places like Northern California where cannabis use and transportation has proliferated since its decriminalization.  So a cop could claim to smell herb and, even if he was lying, he’d have a pretty good chance at finding some.   

What this all means for us is that, although cops shouldn’t be searching through our cars without the smell of burnt marijuana, or some factor to believe you’re driving is impaired, or some reason to believe that your cannabis possession is somehow unlawful, they’re still going to do it.  So be kind to the officer, but be smart and shut the heck up.  

You also have a Fifth Amendment right to keep quiet and you shouldn’t be afraid to use it.  Then, get a good attorney and work together with that attorney to build your defense where they can present all the arguments to a judge, whose job it is to decide ultimately what was reasonable.  But, if your attorney says, “smell is enough, so forget that defense,” they’re technically wrong.  And when that technical mistake costs you (what I believe to be) your greatest and most precious right, your Fourth Amendment right, its time to get a new lawyer.   

The humble lawyer?


Some folks might not understand how significant humility is to my practice, since we generally think of criminal defense attorneys as the opposite of humble.  Indeed, the thought of a criminal defense attorney generally conjures a picture of a sleezy old white guy negotiating DUI “deals” all day long with a cell phone attached to one ear and a jerky attitude.  So where does humility fit into all of this, particularly when you want an aggressive criminal defense attorney rather than some weak hearted plea miester?

The venerated tenet rings particularly true here, “don’t mistake my kindness for weakness.”   A soft tone and warm handshake doesn’t necessarily indicate a weak heart and this truth will be revealed where it matters most, cross examination of the fuzz.  Even with law enforcement though, why be mean except in the rare case where there is a strategic gain that translates directly into a tangible benefit for my client?  I prefer to think of humility as a grounding in the earth, a power not even cognizable by the fuzz, and thus a power they are unable to tap into.   This grounding assists me in never losing focus on the ultimate issue, the persecution of cannabis users, free thinkers, the untamed, etc. by an overzealous police state deathly afraid of losing the workforce to enlightenment, aka free critical thought.

Actually, a concrete example of humility in practice is based on the judge who I wrote about in my last post.  I was so disenchanted with the judiciary because of what I perceived as her refusal to THINK.   However my colleague decided, instead of feeling anger towards her, that we try to educate her with kindness and in humility.  It was difficult to retrain my neural pathways towards humility there because I was so frustrated with the injustice, but doing so was the ethical and most beneficial course of action.  And now we forge on with a new goal that will hopefully benefit our next client, despite the heartbreak knowing our last client fell victim to the machine. 

Humility is the strongest dedication to truth, so much so that my own wants and desires are entirely negated. I become the public consciousness, a single vapor in the ultimate song of freedom.  My desire to fight executive interference in our community is no longer about me. It is about us, the community, the collective.  The WE.  Thus my fight is OUR fight and that’s where the real powers lies. 

Humility IS power. 

First Post


Today I had a huge disappointment in court.  I was observing a respected colleague defend a medical marijuana patient who is facing felony charges despite being under the Sonoma County guidelines.

I watched as the judge practically spat on the client’s rights, as the bulk of her legal rulings were so legally incorrect that everyone in the courtroom was painfully aware of her ignorance.  Her reputation for such ignorance is so widespread that often the mere sound of her name draws terse smiles from the defense bar here in Sonoma.  

It was disheartening to know that there are human beings like this in our world.  Indeed, at least the prosecutors are generally knowledgeable, albeit blind to the gospel truth.  This judge was almost giddy at her own ignorance.  I felt sick. 

I read a quote today that resonates with my what I heard in court this morning:

“When I was 5 years old, my mom always told me that happiness was the key to life. When I went to school, they asked me what I wanted to be when I grew up. I wrote down “happy.” They told me I didn’t understand the assignment and I told them they didn’t understand life.”

Thus the lesson I learned today was to remember that LIFE is the ultimate assignment.  The weaker succumb to the petty power plays spinning around us.  Our job, as the strong, is to gently remind them of the real assignment.  Sometimes, as today, I fear some are too far gone….