“You unlock this door with the key of imagination. Beyond it is another dimension—a dimension of sound, a dimension of sight, a dimension of mind. You’re moving into a land of both shadow and substance, of things and ideas. You’ve just crossed over into the Twilight Zone.”
This is the story of Ted Hicks and Ryan Mears, two California cannabis entrepreneurs who crossed into the twilight zone.
Ted and Ryan were introduced to each other in 2015 by a common friend. They had a mutual interest to become legal medical cannabis farmers, provide medicine to patients in need, and wake up each day to do something they love, farming the land.
After hitting it off and deciding that they could work together, Ted and Ryan quickly set out to get a handle on the emerging medical marijuana landscape to see if they could turn their idea into reality.
They hired a law firm, Reichel & Plesser, that specializes in California cannabis law to help them navigate current California medical cannabis cultivation laws and regulations. They hired an environmental consultant, East Side Environmental, to prepare their Water Board permit and to make sure wherever they eventually began cultivating would be legally licensed. They even consulted with a local licensing expert, Jackie McCowan, who monitors city and county medical marijuana ordinances and bans throughout the state of California.
It was Jackie who recommended that Ted and Ryan cultivate in Yolo County because of its progressive embrace of state medical marijuana cultivation laws and mission to provide a path for cannabis growers to become compliant, regulated, taxed members of the local agricultural community.
Within the Central Valley Region of California where Yolo County is located, some counties are encouraging legal outdoor cannabis cultivation, whereas others are not. In 2016, for example, The Central Valley Regional Water Quality Control Board received around 90 applications for cannabis cultivation from Yolo County, over 400 from Calaveras County, and none from Placer County, Sacramento County and El Dorado County.
“Yolo county set out to establish a reasonable regulatory framework and permitting process so that growers who choose to operate their cultivation sites legally could do so,” says Yolo County Supervisor Don Saylor.
Ted met with with John Young, the Yolo County Agriculture Commissioner. John confirmed their understanding of Yolo County’s outdoor cultivation requirements; and reaffirmed that Yolo County would approve outdoor cannabis cultivation if prospective cultivators applied for and received the required state and local permits. Like many counties around the state, Yolo County was ready to get into the cannabis business, as is their right.
With that, Ted and Ryan formed a collective in 2015 called Big Red’s Collective Farm and registered it with the state of California. They began obtaining every license and permit required by Yolo County and the state to legally cultivate on behalf of their collective and the additional collectives they joined which had, in aggregate, over 10,000 members.
For example, Big Red’s had all necessary permits and licenses to satisfy the county’s Agriculture Department, including an application submitted to the Central Valley Regional Water Quality Control Board for what’s called a notice of applicability. Importantly, the Yolo County Sheriff’s Department approved Big Red’s business license application.
Signed by Lieutenant Lance Faille, the business license states that Big Red’s Collective Farm is a Non-Profit Organization and indicates that the “business must comply with Yolo County’s Ordinance on Outdoor Medical Marijuana Cultivation (Title 5, Chapter 20 of the Yolo County Code)”.
Big Red’s Collective Farm’s business license application was approved by the Yolo County Sheriff’s Department.
All of which is to say that every relevant and required state and local Yolo County agency gave their approval to Big Red’s to cultivate cannabis. Big Red’s had state environmental compliance, local permission, tax registration through the Board of Equalization, and a business license.
During this process, Ted regularly spoke with Agriculture Commissioner John Young to keep him informed and ask questions to make sure they were doing things the right way. For example, Ted shared details on prospective properties, and received feedback on each property, including the property they eventually decided to cultivate on which is owned by Ravi Tumber, a longstanding Yolo County resident.
Tumber also consulted with a lawyer and an ordinance expert prior to drafting and signing a lease agreement with Big Red’s. The Agriculture Commissioner and the County Supervisor both toured Ravi Tumber’s property prior to the lease signing and stated that the property was an ideal location for cannabis cultivation.
While going through the process of obtaining permits to cultivate outdoors, Big Red’s started a small indoor cultivation, and began to distribute the harvest to collectives they were members of.
They planted their outdoor crop in June of 2016.
A Legal Farm Gets Raided
At 7am on September 14, 2016, Big Red’s legal cannabis cultivation in Yolo County was raided. Not by Yolo County law enforcement, but by an out-of-county law enforcement agency called the Tri-County Drug Enforcement Team (TRIDENT). TRIDENT is comprised of law enforcement agents from Sacramento County, Placer County, and El Dorado County, namely, counties within the Central Valley that are not encouraging cannabis cultivation.
Four separate locations were simultaneously raided – the cannabis farm, the homes of the two cultivators, Ted Hicks and Ryan Mears, and that of the landowner, Ravi Tumber.
And by raided, I mean over twenty agents showing up at each location with multiple vehicles while wearing flak jackets, ski masks, helmets, and brandishing assault rifles.
According to Ryan Mears, one of the farmers, in a conversation with Robin Abcarian of the LA Times:
“I was having my morning coffee and I walked upstairs to get my son out of bed. We started walking downstairs and all of a sudden I hear this pounding saying ‘Police Department. Open up. We have a search warrant.’ I told my son to stay upstairs and had my wife run up to stay with him. As soon as I opened the security door there were about 15 cops with assault rifles drawn and pointed, fingers on the trigger, telling me to open up the security door. They were wearing bullet proof vests and ski masks. They pulled me outside, put me in handcuffs behind my back. I could count 15 separate cop cars between Placer County PD to California Highway Patrol, Citrus Heights PD and Rancho Cordova PD. There were between 20 and 30 officers.
The cops were cracking jokes the whole time. ‘None of this is going to matter in a few months anyway because of Prop 64.’ When I asked, ‘then why are you doing this,’ they said, ‘we’re just doing our job.’ The Nazis were just doing their job also. People don’t think about other people’s human rights.”
Ted Hicks, whose home was also raided, said this was easily the “worst day” of his life:
“I hear ‘boom boom boom’, ‘Search Warrant!’. I scream back at them, ‘What do you want me to do?’ They said, ‘Open up the door.’
My thought was let me make sure I don’t get shot.
I had woken up Joy, my wife, when I saw the cop cars on the surveillance video, telling her we were being raided. My son was asleep, thank God. They pull me out and put me in handcuffs, barefoot and in shorts, and walked me to the cop car. Every gun you can imagine was pointed at me when they pulled me out of the house, helmets on the head, vests. I couldn’t believe the amount of cars and trucks.
The first thing that came out of my mouth was, ‘I have paperwork, call my lawyers.’
Because I was instructed after the last visit from Citrus Heights PD to call my lawyers if the cops come back. Citrus Heights PD was there, and I asked them, ‘why are you guys doing this, you saw my paperwork?’ …
….I was not allowed to call my lawyer. They never read me my rights, or told me I was under arrest. When I asked to call my lawyer, Eric Palmberg, the detective who was questioning me, said, ‘We’ll get to that. If you don’t want to say anything you don’t have to, but if you don’t have anything to hide, why not share it?’
Finally, the detective, gave me his phone to call my lawyer at about 10am, 3 hours after they first cuffed me. By this time they had made the determination that they were going to cut down everything at the farm.”
And cut down they did. Over 1,000 plants were destroyed that morning.
The entire cannabis crop was destroyed by TRIDENT
The Wild West of Law Enforcement
Who is TRIDENT? Who are they accountable to? Why were they raiding a legal cannabis cultivation in Yolo County that was held up as the poster child for doing things the right way by the county officials who drafted and were in charge of regulating the county cultivation ordinance? Where was the Yolo County Sheriff during all of this? What crime did TRIDENT believe Ted and Ryan were committing that warranted a search and same day destruction of an entire legal crop that wasn’t even close to harvest?
This is where things get weird.
Here’s how TRIDENT describes itself in the search warrant:
“TRIDENT is a High Intensity Drug Trafficking Area (HIDTA) Drug Task Force. TRIDENT is responsible for the investigation of large scale drug trafficking organizations (DTOs), who cultivate and traffic marijuana and other illicit controlled substances within the state of California and internationally. TRIDENT primarily conducts investigations of major drug trafficking organizations operating within the Central Valley of California.”
So what exactly did TRIDENT believe Ted Hicks and Ryan Mears were doing that warranted a visit by their swat team?
According to the search warrant and affidavit, the affiant, Jason Westgate, believes that Ted and Ryan, doing business as Big Red’s Collective Farm, were growing more marijuana than they could personally use.
The affidavit speculates that people who grow more than they can personally use often grow with the intent to sell out of state illegally, or intend to sell it to people without medical marijuana recommendations. A third, equally viable, possibility is that Ted and Ryan were growing marijuana as part of a collective they happen to be members of, which is legal in California.
TRIDENT, apparently, never thought to talk to or otherwise interview Ted or Ryan on this final possibility. Instead, they escalated to an immediate raid and crop destruction.
Anyone responsible for enforcing current California medical marijuana law knows that individuals who meet certain criteria and obtain necessary licenses and permits are allowed to grow for more than personal consumption.
Yolo County issues permits allowing outdoor cannabis cultivation. Paperwork is what distinguishes a legal and illegal operation when you observe it. Law enforcement observed Big Red’s performing all the required steps a legal cannabis cultivator must go through to be compliant with the Yolo County cultivation Ordinance, backed up by paperwork.
If the police had said we have proof this marijuana is not going to any patients, is going out of state, or is being sold to kids down the street, that is obviously a crime. So get a warrant and charge the growers with a crime. But that’s not what they observed.
According to Brandon Olivera, the TRIDENT task force commander who led the raid, the agency was aware that the plants being grown were intended for medical use, which is legal in Yolo County, and that landowner Ravi Tumber and his lessee, Big Red’s Collective Farm, had already completed the necessary county paperwork to grow in Yolo County. However, Olivera said, they were lacking a particular state license.
“They need a license from the State Department of Food and Agriculture which are not being issued until 2018,” he told me in an email. “If you have any further questions please refer to section 11362.777 subsection (A) and (B) of the Health and Safety Code.”
Fair enough. Let’s take a look at Section 11362.777 subsection (A) and (B) of the Health and Safety Code.
A person or entity shall not cultivate medical cannabis without first obtaining both of the following:
A.) A license, permit, or other entitlement, specifically permitting cultivation pursuant to these provisions, from the city, county, or city and county in which the cultivation will occur.
B.) A state license issued by the department pursuant to this section.
The state cultivation licenses referenced by Olivera won’t be available until 2018. So what does one do before 2018?
From lawyers I’ve spoken to, until state licenses are available, legality is dictated by compliance with the Compassionate Use Act (CUA), Medical Marijuana Program Act (MMPA) and local ordinances.
I called up the California Department of Consumer Affairs. Below is the voice recording at the Department of Medical Marijuana Regulation extension:
“The Department of Consumer Affairs is in the early stages of of establishing the Bureau of Medical Marijuana Regulation and is not issuing licenses at this time. The Department anticipates that regulations establishing the structure of the bureau will be in place by January 2018. In the meantime….
…For businesses, the Department recommends interested parties continue to work with their city or county government to procure the local licenses and permits required to establish a medical marijuana business.
At this time, the Department is placing no additional requirements on existing marijuana businesses.”
Later, the California Department of Food and Agriculture Medical Cannabis Cultivation Program staff emailed me:
“The Department won’t be issuing licenses until 2018, so it will be impossible to obtain one. Current cultivators should try to become compliant with any local ordinances or other state laws that may apply, such as those enforced by the Water Board. Please see the link below.”
The guidance provided by the group that will eventually be responsible for issuing the state cultivation licenses Olivera references is unambiguous.
This guidance is in line with the Medical Cannabis Regulation and Safety Act Article 4, Section 111(c). The language of the section states:
A facility or entity that is operating in compliance with local zoning ordinances and other state and local requirements on or before January 1, 2018, may continue its operations until its application for licensure is approved or denied pursuant to this part. The bureau shall prioritize when issuing licensees, any facility or entity that can demonstrate to the bureau’s satisfaction that it was in operation and in good standing with the local jurisdiction by January 1, 2016.
I’m not a lawyer versed in California cannabis law. I’m not a law enforcement professional who monitors cannabis cultivations for compliance. I’m not an aspiring cannabis cultivator who wants to comply with the law.
But I am a google master, and I do know how to ask questions.
From the moment I decided to educate myself on state licenses that will be issued starting in 2018, it took me all of 15 minutes to find the group in charge of section 11362.777 subsection (A) and (B) of the California Health and Safety Code and get a fairly clear answer that no, you do not currently need a state license to cultivate cannabis for more than you can personally use.
I don’t believe that TRIDENT is an incompetent organization. I don’t believe Mike Vroman, the Yolo County DA who signed off on the warrant, is oblivious to the cultivation ordinance of his own county. I don’t believe this is a case of cops and cultivators each doing the best they can to interpret confusing current medical cannabis cultivation laws.
But I do believe there is a whole lot of willful ignorance going on.
To recap, TRIDENT suspects that Ryan and Ted, doing business publicly as Big Red’s Collective Farm, are cultivating more marijuana than they can personally use, which is legal. TRIDENT requests a search warrant to investigate a legal activity. The warrant is signed off on by Yolo County Deputy District Attorney Mike Vroman, who I can only assume also knows that cannabis cultivation in Yolo County is legal per the county ordinance.
Brandon Olivera, who led the raid, acknowledges that it is legal to grow more cannabis than for personal use, but that Ryan and Ted don’t have a state license that won’t be available until 2018. This is a different accusation than what is found in the search warrant. It is also equally invalid. As we see above, it wasn’t difficult for me to get confirmation that state licenses are not currently required.
In the search warrant, the affiant, Jason Westgate, enumerates his drug enforcement experience and qualifications, none of which, evidently, seem to include the ability to pick up the phone like I did and call the Department of Medical Marijuana Regulation. Had he done so, he would have heard the same audio recording I heard.
Westgate further states in the warrant, “I have become familiar with, among other things, the methods used by drug traffickers to smuggle, safeguard, and distribute narcotics, and the methods they use to collect and launder drug proceeds.”
Do these methods include incorporating the drug trafficking operation within the state of California, setting up a business Web site and social media accounts which clearly state the nature of the business, securing all local permits and licenses to comply with local ordinances, meeting with county officials, and offering to provide tours of your drug trafficking operation to local officials and law enforcement?
Westgate continues:
“I have learned that marijuana suppliers in California that ship marijuana to buyers on the East coast typically have proposition 215 cards and are profiting from illegally cultivating and distributing marijuana by way of the US mail, FedEx and UPS.”
Scary stuff.
But what the search warrant and affidavit, written by TRIDENT, neglect to mention is that the farm in question, doing business as Big Red’s Collective Farm, had Yolo County approval to cultivate more marijuana than the two principals could personally use.
“The cultivation site raided by TRIDENT was permitted by Yolo County.” says Yolo County Supervisor Don Saylor. “Big Red’s had taken every step we asked of them. This extreme action creates a chilling effect on growers who want to work within the rules.”
Yolo County’s goal was to create a path for cannabis cultivators to come out of the dark and into a safe, regulated, taxable, legal environment. A raid on a legal cultivation by an out-of-county task force completely undermines that effort, along with the sovereignty of Yolo County to determine its own cannabis cultivation policy through the crafting of county ordinances.
The legislature and the people of the state of California decided that medical cannabis is legal. Each county and city has the right to make its own rules. Nobody from outside the county jurisdiction should be affecting the county’s ability to do so.
Despite all this, TRIDENT came in as big brother casting its morality and judgement over the sovereignty of a neighboring county.
The Official Complaint
Fast forward to December 28th, 2016, smack in the middle of the holidays. A complaint was finally filed against Ted Hicks and Ryan Mears by Yolo County Deputy District Attorney Mike Vroman.
Three months of investigation by the DA’s office uncovered…drumroll please….that Ted and Ryan are growing marijuana in violation of California marijuana law because they have no intent to eventually provide marijuana to 250 patients they registered for their collective at HempCon 2016.
Notice that the accusation has changed again. First, there’s an acknowledgement that the DA’s office that signed off on the original search warrant does indeed understand that people are allowed to grow more marijuana than they can consume themselves. For example, if the individuals are part of a collective. There’s also no mention of the state license Brandon Olivera said was required to cultivate.
In the complaint, the DA’s office states that in the search executed by TRIDENT, they discovered Big Red’s signed up 250 patients with valid medical marijuana recommendations at HempCon. The DA now argues that while it’s legal to grow for a collective, and other patients, Ted Hicks and Ryan Mears had no intent to ever follow up with the 250 people who signed collective membership agreements at HempCon once their crop was harvested, cured and ready for market.
Say what? Ted and Ryan are being prosecuted for unknowable intent.
In the DA’s complaint, Ted and Ryan are accused of committing many overt acts. Let’s go through them one by one.
1) Defendants and others formed Big Red Farms
Yup, they formed a business entity.
2) Defendants and others obtained a permit from the State Water Resources Board for the purposes of cultivating marijuana
That’s correct. They made sure to get all the appropriate permits.
3) Defendants and others claimed to be a medical marijuana collective providing marijuana to legitimate patients in compliance with state law for the purposes of obtaining a operator identification number and a business license from Yolo County
Correct again. They applied for a business license.
4) Defendants obtained an operator identification number and a business license from Yolo County
They received a business license. Typically, after applying for something, you either get it or you don’t. Seems like Yolo County knew what Ted and Ryan were up to and approved their activities.
5) Defendants contracted with Ravinder Tumber to cultivate marijuana on his property
Yup, you need land to cultivate on.
6) Defendants paid Ravinder Tumber $25,000 for the purpose of leasing one acre of land to grow marijuana
Paying the landowner fairly. OK. Keep going.
7) Defendants agreed to pay Ravinder Tumber an additional $225,000 upon the harvest and sale of marijuana located on Ravinder Tumber’s land.
OK, that’s legal. Ravi’s a good negotiator.
8) Defendants went to HempCon on April 17, 2016
OK, they’re allowed to go to HempCon. The San Francisco Gate estimates 10,000 other people legally went there too.
9) Defendants set up a booth at HempCom
OK, that’s legal. It’s what startup businesses often do.
10) Defendants provided paperwork to attendees of HempCom purporting to be membership applications to Big Red Farms
“Purporting to be”? If they have a legal collective, and provide membership applications to said collective for prospective members to fill out, isn’t that what they’re supposed to do?
11) Defendants offered free samples of marijuana in exchange for attendees filling out the purported applications
There’s nothing illegal about that. Notice “purported” again.
12) Defendants collected no less than 250 purported applications from HempCon attendees for the purpose of growing additional marijuana
Doing what a collective is supposed to do. Were they applications or purported applications?
13) Defendants planted no less than 1000 marijuana plants on Ravinder Tumber’s property
You have to plant in order to cultivate and eventually “disperse” marijuana to collectives and their members. That seems logical.
14) Defendants cultivated and tended to the marijuana throughout the growing season
Yup. We’re nearing the home stretch of legal overt acts and basic common sense. Take care of your crop. Farmers around the world are nodding their heads…
15) Defendants intended to make no less than $1,000,000 from the harvest of no less than 1000 plants
What is the DA basing that intent off of? Is intent an overt act?
Regardless, it’s legal to get reimbursed for providing cannabis to collectives and patients. What are their costs associated with cultivation? The complaint already acknowledges $250,000 in land lease expenses. How much did the nutrients costs? The soil? The pots? How much did it cost to put up their fencing, which is required by law? How many hours per day were people tending those plants? How many people were tending those plants? How many harvesters did they expect to pay? How many trimmers? What are the total labor costs? What did it cost to set up a booth at HempCon? What other operational expenses did they incur? Did they plan to build a greenhouse or invest in equipment? That costs money too. And most of these expenses can’t be deducted federally during tax season.
16) Defendants never made any arrangements to disperse marijuana to any of the attendees who filled out purported applications at HempCon
Let me see if I understand correctly.
Two hundred fifty patients filled out membership agreements to become members of Big Red’s Collective Farm. In those membership agreements, patients provided full contact information, including mailing address, phone number, and email address. Their medical marijuana recommendations were scanned, as were their valid California identification cards, most of which are drivers licenses that also display home address.
Page One of purported membership agreement looks suspiciously like a real membership agreement.
Big Red’s didn’t have any marijuana to provide to patients they met at HempCon. They were in the process of growing it. But they did have contact information for patients they met at HempCon.
When is an appropriate time, in the DA’s opinion, for a collective to reach out to members of the collective to alert them to the current status of the harvest and/or to make arrangements to disperse marijuana to those patients? Or to the thousands of other patients who are members of the various collectives Ted and Ryan are also members of? What smart business person would gather 250 contacts (leads, in the sales world), provide free samples, and not plan to follow up when they actually have product ready for market?
The HempCon booth where people filled out their applications had a giant Big Red’s sign. The samples provided to patients had the collective’s web site and social media handles. Anyone who tried the samples, and liked them, knew the Big Red’s Collective Farm name and how to find them online. Even if Big Red’s, for whatever reason, from laziness to an act of God, never follow up with the members, members had the ability to follow up with Big Red’s.
Branding and Web site address was on every sample provided to new members at HempCon
There’s a factual inaccuracy in this complaint because the DA is alleging there were no arrangements made to deliver medicine to these patients. But there are no overt acts listed in the complaint that indicate that this medicine was going to anyone other than medical cannabis patients.
During the raid, TRIDENT found membership agreements. TRIDENT then successfully contacted 250 patient members who joined the collective at HempCon. TRIDENT established, through their own efforts, that Big Red’s could eventually contact the 250 members after the fall harvest as well.
Under California law, individuals can form their own collective, collect patients, and provide medicine to those patients. An individual can also be a member of a collective. If that collective needs members to cultivate for their patients so they can provide those patients with medicine, then an individual can cultivate for more than personal use that way as well. Either scenario allows one to grow for more than personal use. Both scenarios are applicable to Big Red’s. They are a collective and are members of other collectives.
The only overt acts listed are the steps one would need to take to be a legal medical cannabis collective.
Big Red’s is being accused of doing all the things it needs to do to be compliant (overt acts), but under false pretense. What evidence of false pretense does the DA have? There’s no evidence of sales to anyone. Does the DA have cellphones with evidence of drug sales? Are Ted and Ryan selling dime bags to kids on the corner?
The complaint implies intent to commit fraud and become drug traffickers where nothing in the list of overt acts indicates anything except for doing the normal things businesses do.
In short, The DA’s office is saying all these compliant overt acts were done under false pretense, but doesn’t provide any evidence of what alternatively was happening.
The DA’s office didn’t stop at 16 overt legal acts. They followed up with:
Count 2 : On or about September 14, 2016, RYAN CHARLES MEARS and TED ALLEN HICKS did commit a MISDEMEANOR, namely, a violation of Section 11358(c) of the California Health and Safety Code, CULTIVATION OF MARIJUANA, in that defendant did willfully and unlawfully plant, cultivate, harvest, dry, and process more than 6 living marijuana plants.
Big Red’s did indeed cultivate more than 6 marijuana plants. Willfully and lawfully. As in, lawfully according to Section 11358 (d), which comes right after section (c), referenced in the complaint, and has a very important clause in it, which states, “except as otherwise provided by law”.
Let’s skip right over to Section 11362.775, which provides that, “qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate cannabis for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.”
Again, the DA’s argument is entirely based on intent. Big Red’s did all of the appropriate things (the overt acts), but they did them under false pretense.
But there is no evidence of fraud. TRIDENT and the DA didn’t even wait to see where the cannabis went once harvested. They cut the plants down prior to harvest because they believed the cannabis was going to be distributed illegally. Not that it was distributed illegally, or that they have any evidence that it would eventually be distributed illegally.
The DA prosecuted a theoretical crime before it even occurred.
Ryan and Ted’s only “crime” seems to be that they didn’t establish a distribution channel, to the satisfaction of the DAs office, for the patients who joined their collective.
However, there are no requirements in the law for when information pertaining to the future availability of currently unavailable medicine has to be distributed. In the search, TRIDENT definitely found a paper trail of evidence that shows that Big Red’s was distributing cannabis from their indoor cultivation to dispensaries that they had contracts with and were members of. Receipts of such transactions were found, which, as far as I can tell, establishes a history of distributing cannabis through the appropriate, legal channels to patient members of collectives that Big Red’s was a member of.
The only crime one could possibly argue seems to be a civil case that theoretically could be filed by disgruntled patients who were expecting to eventually receive cannabis from their collective but never did. Maybe Big Red’s “intended” to ignore the expectation that patients at HempCon had about receiving at least notification of where and when this cannabis would be made available to them. But the DA has no idea of when and how Big Red’s might provide this information. And they certainly have no proof to back up the intent argument. The DA is prosecuting Big Red’s for potentially not following up with a subset of all the patients that are, in aggregate, members of Big Red’s Collective Farm and other collectives Big Red’s is also a member of to let them know when and where they can get their medicine.
This perceived failure to set up a distribution channel is not a violation of a codified requirement or even a suggested requirement by the Attorney General’s guidelines. So long as this cannabis is provided to members of Big Red’s or members of a collective that Big Red’s is a member of, no law has been or will have been violated after the act of distribution has occurred. There are no requirements in the law for when information about a current cultivation needs to be disseminated to patients.
The critique of business practices presented in this complaint is not grounds for criminal charges or legal action.
The Role of the District Attorney
The DA’s power is in the ability to decide what to prosecute.
In this case, the Yolo County District Attorney’s office enforces what seems to be arbitrary interpretations of the rules, which means everyone who wants to legally cultivate per Yolo County’s cultivation ordinance has to guess what the DA may or may not decide to prosecute.
To make sure other Yolo county cannabis cultivators don’t run afoul of the DA, I asked the DA’s office how it planned to incentivize compliance with local Yolo County medical cannabis regulations and ordinances? The fact that the DA’s office signed off on a raid of a legal medical cannabis cultivation seems to disincentivise compliant behavior. It looks like the DA is punishing legal behavior.
What would the DA’s office advise other cultivators who are compliant with local Yolo ordinances to do to insulate themselves from law enforcement actions such as searches, seizures and prosecution?
Is the DA’s goal to eliminate outdoor cultivation altogether within Yolo County? Or to enforce compliance with Yolo County ordinances, which allow for outdoor cultivation?
“Cultivators may want to consult with attorneys who specialize in this area of law to ensure that they are following local ordinances and state laws,” says Jonathan Raven, Chief Deputy District Attorney. “The DA’s role is to ensure that these local ordinances and state laws are not violated and in so doing make sure there is a ‘fair and even playing field’ for those who operate these businesses and follow the rules.”
I followed up by asking, “If I were a Yolo County resident, and planned to cultivate in Yolo county, and wanted to make sure I was doing everything possible to be compliant, and called the DAs office to ask for advice from the group that is ultimately responsible for enforcing regulations prior to starting the process, would you turn my call away? Or would you take it?”
In short, what advice is he allowed to convey to someone who wants to do things the right way?
“We cannot provide legal advice,” he responded. “I wonder if County Counsel could assist. Or, is there a Trade Association that could provide legal advice or provide workshops – particularly at this early stage in the process.”
I guess they don’t feel like they need to provide any clarification or signals to anyone. Regardless, it’s still unclear how Big Red’s is not compliant with Yolo County’s ordinance.
The question they should provide guidance to, since the answer seems to be why they are prosecuting Big Red’s, is, at what point does Yolo county hold cultivators responsible for contacting collective members? Will the DAs office give guidelines to cultivators about how and when to contact members about an upcoming harvest? What does the DAs office require to show that a cultivator will be providing patients with medicine?
Prosecuting a collective for the timing of when they plan to follow up with their members seems to take away business owner autonomy in choosing how to run their collective.
Furthermore, why is the Yolo County District Attorney’s office working with and enabling law enforcement agencies that don’t respond directly to the people of Yolo County? TRIDENT doesn’t have any direct association or direction from the people of Yolo county. And why did Yolo County’s own law enforcement agencies pass on this? The District Attorney is being counterproductive to what his constituents are asking for. How many growers are staying in the dark because of this punishment of county sanctioned cultivators?
Finally, how much taxpayer money was spent on the raid? Twenty to thirty cops showed up at three separate houses and thirty to forty cops showed up at the farm. At a minimum, ninety law enforcement professionals were dedicated to the raid on September 14th, 2016.
People across California are members of collectives. Their input into the collective is to supply medicine to the collective. To provide that input, they grow marijuana. Obviously, for them to provide the marijuana to the collective, they have to grow more than just enough for themselves. Ted and Ryan have their own collective and are members of other collectives. So yes, they’re going to have more than six plants each, which is legal according to every single California medical marijuana law.
** Special thanks to Ashley Bargenquast from the law firm of Tully & Weiss, who helped me navigate current California cannabis cultivation laws.