By Benjamin O. Kostrzewa
Katten Muchin Rosenman LLP
USA June 26 2017
Don’t look now cannabis businesses, but your neighbors may be raising a racket. A June decision by the 10th Circuit Court of Appeals in Denver may have opened the doors to new legal challenges to marijuana operations: civil suits under the Racketeer Influenced and Corrupt Organizations Act (RICO).
RICO was originally intended to go after the mafia and other organized crime, but its broad language means it can be applied in other settings. RICO allows a private citizen to sue “racketeers” for damage to business or property due to the racketeer’s illegal activities or activities that were conducted under his guidance. Since marijuana remains illegal under federal law, the production or distribution of marijuana is considered racketeering.
In this case, a Colorado couple claimed a neighboring marijuana operation was creating “noxious odors” that drifted onto their land allegedly causing the value of their property to drop. The Reillys contended that the odors coming from the marijuana facility adjacent to their land were a nuisance because it “interfered with their present use and enjoyment of the land” and caused a “diminution in its market value.” The Reillys (aided by Safe Streets Alliance, an anti-marijuana organization that was also party to the case) argued that any business engaged in the commercial cultivation and sale of recreational marijuana is a criminal enterprise for purposes of RICO, so they were entitled to relief under federal law.
The District Court in Colorado dismissed the suit for failure to state a claim under RICO. The District Court stated that Reillys’ injury (the noxious odors and reduced market value) was “speculative” and that they failed to provide any concrete evidence that they had provided harm. The District Court ruled that a “clear and definite” showing of damages were necessary under RICO.
On appeal, the 10th Circuit’s three-judge panel reversed the District Court’s conclusion that the Reilly’s claim of damages was merely “speculative” and thus must be dismissed. Instead, the 10th Circuit held that by alleging that the Reillys’ property has been directly injured by their neighbors’ “odorous and publicly-operating criminal enterprise,” the Reillys properly stated a claim and the case can proceed.
The 10th Circuit ruling also went out of its way to explain that the defendants’ growing marijuana as alleged would meet the elements of a RICO claim. As alleged, defendants were (a) racketeering by growing marijuana, which remains illegal under federal law; (b) were an “association-in-fact enterprise”; (c) the defendants conducted the enterprise’s affairs; and (d) that this activity constituted a “pattern” of illegal acts that is the direct cause of the Reilly’s alleged damages. By providing such analysis, it may have provided a roadmap to future plaintiffs for RICO.
Anti-legalization advocates such as the Safe Streets Alliance are likely on the lookout for more RICO cases to bring against marijuana operators. They likely believe they have found a profitable way to improve litigation risks on marijuana companies even in the event of federal inaction on marijuana and state expansion. Not only are the RICO charges relatively easy to bring, but if successful, RICO plaintiffs can receive treble damages. Treble is lawyer-speak for triple, meaning that plaintiffs can receive up to three times the actual damages. Plaintiffs, if successful, are also eligible to have their attorney’s fees covered by the defendant and have the courts shut down the marijuana operation.
For marijuana operators around the country, now is the time to assess your liability and reduce litigation risk:
**Review leases and other documents that may contain limitations as to what you can do on your property
**Review local ordinances on noxious odors and other nuisance rules, as they could be the basis for a dispute
**Be in strict compliance with any and all state laws related to cannabis
**Avoid any public disputes that could raise attention to your company
Moreover, perhaps above all else, determine if you have any frustrated neighbors that anti-legalization advocates could target. If you have an ongoing dispute with a neighbor, attempt to resolve it amicably before it can rise to this level
RICO charges are challenging, but a prepared company can avoid the trouble before it starts.
What is it with this administration and science….now the Kiebler Elf denies cannabis science…WTF!!!
By Maureen Meehan June 28, 2017 High Times Magazine
Opioid overdoses killed in excess of 33,000 people in 2015 and continue to ruin millions of lives, while our ill-equipped government dawdles with absurd and punitive solutions.
Attorney General Jeff Sessions refuses to view the situation as a public-health crisis but rather insists on criminalizing, penalizing and filling jails—the exact wrong path to take.
Sessions’ stubborn insistence on disregarding scientific consensus regarding the role cannabis can play in stemming the opioid epidemic actually threatens to make it worse.
While the Justice Department clings to the irrational classification of cannabis as a Schedule I drug, therefore hindering scientific research (not to mention filling up prisons), the rest of the world moves forward.
Earlier this year, the National Academies of Sciences Engineering Medicine (NASEM) published a rigorous review of scientific research that included more than 10,000 peer-reviewed studies, which supported conclusive evidence that cannabis is clinically effective in treating a number of illnesses and conditions—from epilepsy and mental health disorders, to injuries and pain.
Dr. Yasmin Hurd, director of the Addiction Institute at Mount Sinai School of Medicine, laments the fact that the U.S. government continues to obstruct important cannabis research.
“I understand the cautious nature of the government… but it is disappointing that marijuana continues to be included on the DEA’s list of the most dangerous drugs,” said Hurd, who studies the effects of marijuana on the brain.
It is especially disappointing in view of the opioid crisis, because cannabidiol (CBD) reverses some of the brain changes that occur with heroin use, according to Hurd’s own studies published in the Journal of Neuroscience.
Hurd says that CBD is the more important compound when it comes to marijuana as a treatment for addiction. In terms of the wider scope of medical marijuana research, she points out that it is the “same cannabidiol being looked at for the kids with epilepsy.”
It has already been reported that the clinical use of cannabis could mean enormous savings for government health insurance programs, currently a national obsession as the Trump administration tries to strip half the country of healthcare so billionaires can have even bigger tax cuts than they already enjoy. But that’s another story.
The biggest savings would come from reduced prescriptions for pain medications, a large amount of which are opioids.
This explains why states that have approved MMJ are experiencing fewer opioid-related deaths.
While the National Institute on Drug Abuse (NIDA) tepidly acknowledged the evidence in the NASEM study, it still noted, “medical marijuana products may have a role in reducing the use of opioids needed to control pain.”
Therefore, Attorney General Jeff Sessions, isn’t it abundantly clear that a war on marijuana is a war on those who need it most: people already suffering from pain and people whose opioid addictions where brought on by that very pain?
Isn’t it abundantly clear that medical marijuana is just that—medical?
Jeff Sessions and other lawmakers really need to get off their high horses and stop moralizing about drugs.
Read the damn literature and let people have their medicine. The entire country will thank you.
Sorry- long one that will be moved to our blog by tomorrow. But I couldn’t help myself so…… lol 😂
So- did you know we have a “RETAIL MARIJUANA ADVISORY COMMITTEE”?
Hmmm- what does such entity ADVISE upon?
It says here that the role of the committee is to provide scientific input to inform public health recommendations related to retail marijuana in Oregon.
“inform public health recommendations related to retail marijuana in Oregon.
Notice their current data….does it really address either issue? I mean after all, whether you’re for or against the dirty “m” word, it IS our tax dollars paying for this SCIENTIFIC INPUT, right? Right on!
So, don’t you want to know more?
The new Right To Grow USA website is up and running. It is the same domain righttogrowusa.com There is a members only section that has been created and will be expanded with benefits that will be available to our members. These benefits will be rolled out as they are developed.
The Right To Grow USA Facebook page, group and the website will be integrated as much as possible so that no information is missed and those who like to make posts will still be able to do this on the FB page. The website blog will also be posted to the FB page. For those communications directed to lifetime members will be found only on the website.
To become a lifetime member means that you have donated $4.20 total over time or more. We do not set any donation amount and we do not have any recurring membership charges to maintain lifetime membership. We just appreciate the support given to further the cause of Right To Grow USA. When you make a donation you will be set up with your own members login to be able to access these areas.
For those who have made donations in the past your lifetime membership continues. We do ask that you send an email to email@example.com so that you can be set up with your members login. Due to the hack in the past, membership information has been lost unfortunately so we will need to rebuild this over time.
Again, RTG thank you for all your support and we will keep you posted with updates.
Initiative Filed in Jackson County to Prevent Discrimination Against Cannabis Grows
By Keith Mansur
Oregon Cannabis Connection
An initiative petition has been filed in Jackson County, Oregon, that will allow cannabis grows to operate on Rural Residential properties. On June 14, 2017, the county approved the petition and title for signature gathering which was filed by Sandy Diesel of Right To Grow, U.S.A. The group needs to collect 4,956 valid signatures before the August 7 deadline for inclusion in the 2017 general election on November 7th.
“The initiative is in response to the county’s discrimination against farmers and to try to prevent future discrimination,” Diesel told Oregon Cannabis Connection (OCC). “The initiative makes it so they can’t say we can’t grow cannabis on RR if they aren’t saying, for example, that we can’t grow lavender.”
They hope to gather 10,000 signatures to account for duplicates and invalid signatures that are inevitably collected by petitioners with every initiative. They have organized a meeting at 2:00pm on Friday, June 16, at the Medford Library where they will give instructions and provid training on signature gathering.
“We are doing this to protect farmers and agriculture in Jackson County in response to the counties unfair discrimination against Cannabis,” explained Diesel, who formed the activist group last year to fight the changes that have affected thousands of medical marijuana growers across the state and especially in Southern Oregon.
Amid a drug crisis that kills 91 people in the U.S. each day, Attorney General Jeff Sessions has asked Congress to help roll back protections that have shielded medical marijuana dispensaries from federal prosecutors since 2014, according to a letter made public this week. Those legal controls—which bar Sessions’s Justice Department from funding crackdowns on the medical cannabis programs legalized by 29 states and Washington, D.C.—jeopardize the DoJ’s ability to combat the country’s “historic drug epidemic” and control dangerous drug traffickers, the attorney general wrote in the letter sent to lawmakers.
The catch, however, is that this epidemic is one of addiction and overdose deaths fueled by opioids—heroin, fentanyl and prescription painkillers—not marijuana. In fact, places where the U.S. has legalized medical marijuana have lower rates of opioid overdose deaths.
CALL TO ACTION-
ALL FARMERS & CITIZENS CALLED TO UNITE!
Right To Grow, USA filed initiative against Jackson County. EVERY county in the state should stand up & do the same!!! County by County~ & then we take on a statewide initiative!!!
This measure is about protecting ALL farmers in Jackson County!!! Whether you are FOR or AGAINST Cannabis- this is about PROPERTY RIGHTS, HUMAN RIGHTS & our RIGHT TO GROW whatever we want & need to grow on OUR PROPERTY!!! We own our property- NOT Jackson County!! The county commission is unfairly discriminating against ALL farmers because of the crops they are raising. This type of discrimination has no place in Jackson County!!!!
Today the county commission is targeting cannabis farmers, tomorrow it could be hay farmers, lavender, grapes or pear~who knows? This measure prevents the Jackson County commission from discriminating against other types of farmers in the future.
Please help us STOP the county’s discrimination!!!!!!