This action might not be possible to undo. Are you sure you want to continue?
Hello John, Today the county got served. Hope to see ya posting it on 420leaks. In 21 days I will post their reply.. on thclist.com which should be a hoot.. James Sr. -----
IN THE SUPRIOR COURT OF THE STATE OF WASHINGTON COUNTY OF CLARK CASE NO. 13-2-03628-6 JAMES E. BARBER SR. et. al. VERIFIED FIRST AMENDED Plaintiff, COMPLAINT FOR DECLARATORY v. AND INJUNCTIVE RELIEF COUNTY OF CLARK et. al. Defendant, NOT SUBJECT TO MANDATORY ARBITRATION JURY TRIAL DEMANDED ____________________________________________________________________
INTRODUCTORY STATEMENT 1. This is a declaratory judgment , Injunctive action against the County of Clar k, Washington. Under the MUCA (Medical Use of Cannabis Act) all qualifying patients are disabled persons who are protected under WLAD. The subject county ordinance ONLY affects disabled persons and is discriminating on it s face, or as applied to the plaintiff, in violation of RCW 49.60.030 and other provisions of the WLAD. In early July of 20 11 before sb 5073 took legal operational effect, the BOCC instead of electing to fi le for
injunctive and/or declaratory relief in the courts, they elected to use their al leged emergency moratorium authority under RCW 36.70A.390 and RCW 35.63.200 without public notice under the auspice in good faith and within the scope of their assi gned duties under Chapter 69.51A.140 RCW intertwined with (if not bootstrapped to) 69.51A.13 0 RCW for planning land use and zoning districts on the use of cannabis by qualify ing patients and designated providers, as well as vulnerable disabled qualifying pat ients collective gardens as necessary to further the public interest, for their health , safety, and welfare. Resolution 2011-07-04. The county commissioners have now banned and/or listed vulnerable disabled qualifying patients collective gardens in all zones a nonconforming use (under the auspice of federal law) which the county/state can use abatement actions and/or process be it criminal and/or civil, in direct violatio n of the Washington Medical Use of Cannabis Act (MUCA), WLAD (and plaintiffs SSDI order o f Oct. 28,2010). The County of Clark and its Board of Commissioners have passed ordinance(s) outside of their Legislative/Administrative/Executive authorities, done not in good faith within their assigned duties: and, whereas The County would adopt zon ing and implement rules and/or practices not under their purview. The Washington Plannin g Enabling Act allows political subdivisions and municipalities to regulate the us e of land , not to regulate the conduct and activity of citizens of the state' private affai rs . Allowing a political subdivision of the state to allow penalties and/or criminalize persona l private conduct and useful lawful activity through land use regulation -- conduct and la wful useful activity that is otherwise protected by state statute dgates would open the floo
for the state's 39 political subdivisions and too more than 281 municipalities t o promulgate codes,rules,laws and regulations which in operational effect criminal ize with a form of penalty any behavior deemed unpalatable to their respective small grou p of local officials, and law enforcement, contrary to statute and legislative intent . 2. Furthermore, Clark county ordinance no 2013-07-08 is far from a typical "zoni ng" measure. "A zoning ordinance is defined as an ordinance which regulates the use of land and buildings according to districts, areas, or locations." It is not, in any me aningful reasonable sense, a simple "zoning regulation"; it is outright prohibition. Rega rdless of how Clark county's ban is labeled, it is difficult to imagine a more direct conf lict between a local ordinance and a state law. 3. In sum, Clark county's ordinance is not insulated from review merely because it is described by defendant as a "zoning regulation." Like any other ordinance, a zon ing regulation is subject to state law and is preempted if it conflicts with state l aw. In this case, there is a clear conflict between Clark county's complete ban on the medic al use of cannabis under provision .085 and the protections of the MUCA. Accordingly, ther e should be no question that Clark county's ordinance is preempted. 4. Plaintiff James E. Barber Sr. suffers from lumbar spine Degenerative Disc Dis ease which has resulted in severe disc pain from disc protrusions in his spine causin g both severe and chronic foot and leg pain. Plaintiff also experiences severe and chro nic pain in his left knee from fracture and instability as a result of being crushed between two vehicles at the age of 16. Plaintiff also suffers from celiac disease and other
food triggers which causes severe weight loss. Plaintiff also suffers from Barrettes Esophagus causing the risk of untreatable cancer and severe pain, in which no standard medicine or treatment gives relief too plaintiff. Plaintiff also suffers from a complex seizure disord er in which he contracted in the Clark county jail from major overdosing plaintiff on anti-s eizure meds (for the above noted back pain) given by jail staff and jail medical staff. Plaintiff whilst using cannabis as medical treatment (fully vetted by ALJ laws) was awarde d SSDI permanent unemployable disability on Oct. 28,2010 by ALJ Eleanor Laws, retroacti ve too Jan. 1, 1999. Plaintiff is also on state disability through DSHS. The county has also listed plaintiffs real property interest as maximum 60 % disability tax exemption statu s as a result of the Oct. 28,2010 order. 5. Plaintiff is a vulnerable disabled qualifying patient with valid documentati on as required by both state statute(s), MUCA, and WLAD.. 6. Plaintiff s ability to use medical cannabis as valid treatment noted in his SSD I order and state law, is threatened by Clark County's discriminating vulnerable qualify ing patients collective gardens ordinance no. 2013-07-08, that makes it in operation al effects, illegal and actionable,(including by law enforcement) under non conforming uses for plaintiff to create and participate in collective gardens for the purpose of pro ducing, processing, transporting, delivering ,administration, use of cannabis for medica l use subject to the following conditions of RCW 69.51A.085: at his own home for PRINCIPAL and/or accessory uses under state law without civil and/or criminal a ctions or threats/harassment by the county or law enforcement. The county ordinance is
contrary to state laws of abatement unambiguously delineated in RCW 69.51A .005,and, .040 legislative intent to field preempt such actions for all qualifying patients, in cluding those associated within the definition, conduct and activity under section .085. These gardens are not intended for commercial business uses, section .055(2) is clear evidence that section .025,.040 and .085 unambiguously are to be read in harmony, and reasonab ly suggests treatment by the court, corrections agency or department, including loc al governments as such. They do not conflict. 7. In this lawsuit, plaintiff generally seeks a declaratory judgment, Injunctive relief that the Clark County ordinance 2013-07-08 is: preempted by the Washington Medical Us e of Cannabis Act; the cannabis act is not preempted by federal laws; it violates the private affairs of qualifying patients by authorizing unreasonable intrusion into a pers on's `private affairs without authority of law under Art.1 Sec.7.; it violates Art.1 Sec.3- by authorizing unreasonable, persons shall be deprived of life, liberty, or property, without d ue process of law; it violates vested rights doctrine principles of residential and/or acce ssory use(s); that county employees doing their duties of processing and providing building, p lumbing, electrical, ventilation, grading permits too residence's for qualifying patients private,unlicensed,noncommercial uses of collective gardens under MUCA at their residential premises is not a violation of federal laws; and the ordinance is di scriminatory under WLAD, beings plaintiffs SSDI order of Oct. 28,2010 delineates his state disabilities and, thus, the ordinance no. 2013-07-08 is invalid and unenforceabl e. Plaintiff s ability to create and participate in collective gardens medical use of
cannabis which is protected by the MUCA,WLAD, SSDI order of Oct. 28,2010 and the County o f Clark does not have the power to override state laws by claiming federal laws tr ump the policing powers of the state sovereign or write an ordinance conflicting with st ate law and/or ignore federal ALJ order on plaintiffs disability whilst using cannabis f or medical treatment under other federal laws, for their "political" purposes. The test for necessary or implied municipal powers is legal necessity rather than practical necessity. As this court stated in Hillis: "[i]f the Legislature has not authorized the action in questio n, it is invalid no matter how necessary it might be." RCW 69.51A.085, makes no reference too business licensing nor to local B&O taxing laws, local safety and health rules, or local governments specifications. And, although RCW 69.51A.140 left room for local jurisdictions to impose regulations on Licensed Dispensers of Medical Cannabis,( in which those commercial sections where subjected to veto), this RCW commercial us e provision .140 does not apply, chapter 35.63. rcw is inapplicable to use on pri vate, unlicensed, non commercial uses and was never intended to apply to any patient a nd/or provider state only regulated garden, including vulnerable disabled qualifying p atients collective gardens. 8. The question present in this case before the court is whether this local stat e political subdivision government body of Clark county has been vested by an act of the leg islature with the authority to enact the TYPE of ordinance in question, in this instance, removing Plaintiffs vulnerable disabled Qualifying Patients Collective Gardens civil and criminal exemptions for penalty purposes, and qualifying ALL such vulnerable disabled pat
ients as a nuisance, criminals or having their property interest seized and automatically forfeited for sharing their resources ential zones under the ordinance. 9. WHEREAS, No local government legislative/Administrative/Executive body was given such authority by the state legislature either in an express grant or by n ecessary implication under MUCA. Contrary to county's belief's, RCW 69.51A qualifying pat ients civil exemptions effectively removed this "political" corporate subdivisions ope rational right of abatement laws for zoning purposes under rcw 69.51A.005,025,040, .085, and RCW 7.48 read in harmony. This local legislative/Administrative/Executive body w as not given zoning abatement and/or amendment authority which can result in any fo rm of a penalty which conflicts with state laws. SEE 56 Am Jur 2d, Municipal Corporati ons, § 374, pp 408-409: It has been held that in determining whether the provisions of a municipal ordinance conflict with a statute covering the same subject, the test is whether the ordinance prohibits an act which the statute permits, or permits an act which the statute prohibits. Accordingly, it has often been held that a municipality cannot lawfully forbid what the legislature has expressly licensed, authorized, permitted, or required, or authorize what the legislature has expressly forbidden. protected by state law rights but, prohibited in resid
PARTIES AND STANDING 10. Plaintiff James E. Barber Sr. is an adult resident of the state of Washingto n,county of Clark. He is a vulnerable disabled Wa. citizen with valid documentation under bo th state statute(s), MUCA and WLAD .He is a cannabis patient with valid Documentation/ prescription for the treatment of his multiple conditions with cannabis as a med icine as
required by statute(s). He desires to create and participate in a collective gar den as defined by MUCA statute and intent of the legislature, at his principal residenc e within the county of Clark for private, unlicensed, noncommercial medical uses under pr ovision section .RCW 69.51A.085 , WHICH constitutes sharing of resources be protected fr om local government controls, specifications, intrusions over such private affairs. Plaintiff has exhausted his administrative remedies county has allowed to date. Plaintiff has Standing. 11. Defendant County of Clark is a "political" corporate subdivision of the Stat e of Washington organized under the laws of the State of Washington. Clark County is a "political" corporate subdivision and a "creature" of the state and derives all of their authority and powers from the state constitution and the state legislature. Thi s corporation is a body "politic" established by law as an agency of the state tly to par
assist in the civil government of the state, but chiefly to regulate and adminis ter the local and internal affairs of the unincorporated city, town, or district. It has neith er existence nor power apart from its creator, the legislature, except such rights as may be granted to municipal corporations and political corporate subdivisions by the state constit ution, such as formation. It is dubious the county has standing to make any preemption or legislative/Administrative/Executive affirmative defense under the material fact s and circumstances of this case. JURISDICTION AND VENUE 12. This court has jurisdiction because this is a civil action, no other court h as exclusive
jurisdiction over this action and no law denies the Superior Court jurisdiction over these actions taken in bad faith under MUCA , WLAD, LUPA which authorize invasion of private affairs without authority of law; by operational effects causing a lax i n elements of the states death penalty; legislative/Administrative/Executive discriminatory a ctions; authorizing deprivation to plaintiff of life, liberty, or property, without due process of law; all not within the scope of any assigned duties. This court s authority to gr ant a declaratory judgment is provided by Chapter 7.24 RCW, and relief under WLAD, amo ng others. 13. Venue is proper because the plaintiff lives in Clark County and defendant Co unty is a governmental unit that exercises or may exercise its governmental authority in C lark County not in conflict with state statute(s). And the justices of this county ha ve a constitutional duty too protect it's citizens over obvious "political" statement s (not a valid zoning law) by the county of clark BOCC which is contrary too and conflict with state laws. FACTS PLAINTIFF JAMES E. BARBER SR. 14. Plaintiff has suffered from mild back pain since at least Jan.1,1999, which increased to SEVERE in 2000 after being boot stomped. Plaintiff has suffered from SEVERE k nee pain since he was 16. Plaintiff has suffered from SEVERE barrettes esophagus ero sion since he was in his early 20's. Plaintiff has suffered from SEVERE celiac diseas e since he was incarcerated in 2002. Plaintiff has suffered from complex seizure disorder s ince
overdosed on anti-seizure meds for SEVERE back pain in 2001 by the Clark county sheriffs jail division. 15. As prescribed by his physicians and jail physician ,plaintiff has tried Vico din, other narcotics,SSRI and anti-seizure meds to relieve pain. Their auto-immune and neurological response causing SEVERE side effects, however, are notably unpleasa ntly assaulting as taking poison, offer zero efficacy and they do not effectively man age his symptoms. 16. Based on advice sought and written recommendation (prescription)of his prima ry specialty care physician, plaintiff found cannabis to be more effective in relie ving his severe and chronic CONDITION(S)(See Oct. 28,2010 ALJ findings of fact), preferab le to various narcotic,SSRI and anti-seizure drugs which in effect are nothing more th an poison AND do not provide efficacy for plaintiffs life long chronic health condition(s) , thus offering no medical use and/or efficacy. 17. Plaintiff is registered with the county as a disabled person with property i nterest mandating per statute a 60% tax exemption status. Plaintiff has valid documentat ion (prescription and Wa. I.D.) as required by statute. Plaintiff is recognized by t he SSA as a SEVERELY vulnerable disabled Person using medical cannabis for lawful medical treatment, under their federal laws. Plaintiff is recognized by the state DSHS a s disabled. Defendant is in possession of a true copy of plaintiffs SSA order dated Oct. 28, 2010 which addresses plaintiffs lawful cannabis use. County of Clark ordinance no. 20 13-0708 does Interfere with plaintiff rights under state laws and his rights recogniz ed under other federal laws by an ALJ in as a non-adversarial hearing ,. Accordingly, the same
Probable Cause Determination under the constitution(s).
18. Plaintiff has been suffering physically and mentally without his recommended dosing as a result of being denied the right to create and/ participate in sharing his property interest resource without being subjected to punishment or seizure with automati c forfeiture, thus seriously affecting his rights,repose , health and safety, etc. . in medical treatment proscribed by state laws at his residential premises, and acknowledged by a federal ALJ. The county, state agencies, and clark county sheriffs division in conjunction, has a "written" pattern of interfering with plaintiffs medical trea tment, property interests and disabilities rights since 2000. This ordinance no. 2013-07-08 is just a repeat, with a different farce.
The Washington Medical Use of Cannabis Act(MUCA) . 19. In November of 1998, the voters of the State of Washington approved Initiati ve 692 (codified as chapter 69.51A RCW). The intent of Initiative 692 was that g qualifyin
patients with terminal or debilitating illnesses who, in the judgment of their p hysicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law, but that nothing in the law shall be construed to supersede Washi ngton state law prohibiting the acquisition, possession, manufacture, sale or use of m arijuana for non medical purposes. 20. In 2011, the Washington State Legislature passed ESSSB 5073, which amended chapter 69.51A RCW. This bill clarified,qualifying patients or their designated providers are presumed to be in compliance with the medical use of cannabis act, and SHALL NOT be subject to criminal or civil sanctions,penalties, and/or consequences,and/or
seizure and/or forfeiture when they meet certain qualifications. RCW 69.51A.085 included . 21. One section of this bill directed employees of the Washington State Departme nts of Health and Agriculture to authorize and license commercial businesses that produ ce, process or dispense cannabis. In addition,this bill required that the Department of Health develop a secure registration system for licensed producers, processors and disp ensers. These provisions,however, were vetoed by the Governor, together with many others relating to licensed dispensers and all of the definitions in this bill, all und er a state regulatory licensing scheme. The bill was approved by the governor of Washington April 29, 2011, with 36 sections vetoed. For example, the vetoed definition for a "production facility" means: The premises and equipment where cannabis is planted, grown, harvested, processed, stored, handled, packaged, or labeled by a licensed producer for wholesale, delivery, or transportation to a licensed dispenser or licensed processor ... .ESSSB 5073, Section 201(24) (emphasis added). Similarly, the vetoed definition for a "processing facility" means: the premises and equipment where cannabis products are manufactured, processed, handled, and labeled for wholesale to licensed dispensers. ESSSB 5073, Section 201(22) (emphasis added). Finally, the vetoed definition of a "licensed dispenser" means: a person licensed to dispense cannabis for medical use to qualifying patients and designated providers by the department of health in accordance with the rules adopted by the department of health pursuant to the terms of this chapter.ESSSB 5073, Section 201(12).
See also, e.g., ESSSB 5073, Part VI (vetoed provisions for licensed producers and licensed processors); Part VII (vetoed provisions for licensed dispensers); Part VIII (vetoed "miscellaneous provisions applicable to all licensed producers, processo rs, and dispensers"). Section .140 was for the operational use for these commercial uses ..which are now mostly codified under I-502 principles. Except "licensed Dispenser". 22. The governor s vetoes were related to those sections concerning state employee involvement in producing, processing and dispensing cannabis. She cited the risk s posed to state employees under federal law for doing so, even if a registered licensed dispenser of controlled substances (like a state legislator), state employee immunity does n't apply. 23. The bill s provisions relating to individual cultivation of medical cannabis a nd cultivation in collective gardens were not vetoed. An individual qualifying pati ent may cultivate up to 15 cannabis plants in his/her own residence (or possess up to 24 ounces of usable cannabis).There are other limits for qualifying patients who are also des ignated providers. Up to ten vulnerable disabled qualifying patients may create and part icipate in Sharing their resources in collective gardens for the purpose of producing,proce ssing, transporting and delivering cannabis for medical use. Accordingly, ,engaging in the private, unlicensed, noncommercial sharing of resources for production, possessi on, transportation, delivery, or administration of cannabis for medical use is deeme d a principal and/or accessory use, and does not constitute a nuisance prohibition u nder state law principals which municipalities and state "political" subdivisions base thei r Ordinance(s) on in zoning.
24. A collective garden may not contain more than 15 plants per patient up to a total of 45 plants per garden, and the garden may not contain more than 24 ounces of usable cannabis per patient, up to a total of 72 ounces of usable cannabis thus,engagin g in the private, unlicensed, noncommercial sharing of resources for production, possessi on, transportation, delivery, or administration of cannabis for medical use is a pri ncipal and/or accessory use as intended in section rcw 69.51A.025,.040,.085 is not nor could it be reasonably actionable under any civil/criminal processes or alleged zoning or dinances, nor is it a non conforming use which can garnish any form of penalty . The defin ition of Qualifying Patient has not and was not changed. 25. Under the bill, cities, towns and counties may NOT adopt and/or enforce requirements for zoning,business licensing, health and safety and business taxes relating to the "vulnerable disabled qualifying patients creation and participation in co llective gardens sharing their resources for the purpose engaging in the private, unlicen sed, noncommercial production, possession, transportation, delivery, or administratio n of cannabis for medical use as a principal and/or accessory use within their jurisd iction for vulnerable disabled qualifying patients accessory uses to ones residential premi ses". 26. In vetoing portions of this bill, the then governor of Washington released a letter of her understanding to ALL constituents stating on page 1 , in pertinent part : Our state legislature may remove state criminal and civil penalties for activiti es that assist persons suffering from debilitating or terminal conditions . tes .The United Sta
Department of Justice has made the wise decision not to use federal resources to prosecute seriously ill patients who use medical marijuana.
27.. The laws of Alaska, California,Colorado, Hawaii, Maine, Montana, Nevada, Ne w Mexico, Oregon, Vermont, Rhode Island, and Michigan do not penalize the medical use and cultivation of cannabis. Washington State joins in this effort for the " health,safety,morals and welfare of its citizens. 28. The MUMA decriminalized the medical use of marijuana for terminal medical conditions, al debilitating and
including chronic or debilitating diseases and medic
conditions that produce severe and chronic pain. 29. The MUCA legalized the medical use of cannabis for medical purposes the same as prescription drugs from a pharmacy under a doctors supervision. Accordingly,, th e courts in Washington refer too valid documentation as a "prescription" under state law medical practices. 30. Specifically, the MUCA provides that vulnerable disabled Qualifying patient s with terminal or debilitating medical conditions who, in the judgment of their health care professionals, may benefit from the medical use of cannabis, shall not be arrest ed, prosecuted, or subject to other criminal sanctions or civil consequences under s tate law based solely on their medical use of cannabis, notwithstanding any other provisi on of law(see e.g., rcw 69.51A.020 other provisions of law);and The lawful possession or manufacture of medical marijuana as authorized by this chapter shall not result in the seizure or forfeiture of any property.(see RCW 69.51A.050) 31. The legislature provides at RCW 7.48.160- Nothing which is done or maintaine d under the express authority of a statute, can be deemed a nuisance. 32. The legislature provides at RCW 7.48.120 Nuisance defined.
Nuisance consists in unlawfully doing an act, or omitting to perform a duty, whi ch act or omission either annoys, injures or endangers the comfort, repose, health or safe ty of others, offends decency, or unlawfully interferes with, obstructs or tends to ob struct, or Render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property. 33. The legislature provides at RCW 9.66.030 Maintaining or permitting nuisance. Every person who shall commit or maintain a public nuisance, for which no specia l punishment is prescribed; or who shall willfully omit or refuse to perform any l egal duty relating to the removal of such nuisance; and every person who shall let, o r permit to be used, any building or boat, or portion thereof, knowing that it is intende d to be, or is being used, for committing or maintaining any such nuisance, shall be guilty of a misdemeanor. 34. Article XI, § 11 requires a local law yield to a state statute on the same su bject matter if that statute r if a preempts the field, leaving no room for concurrent jurisdiction, o The plenary police power in
conflict exists such that the two cannot be harmonized.
regulatory matters accorded municipalities by the state constitution ceases when the state enacts a general law upon the particular subject, unless there is room for concu rrent jurisdiction. Lenci v. Seattle, 63 Wn.2d 664, 669, 388 P.2d 926 (1964). Whether there is room for the exercise of concurrent jurisdiction in a given instance necessarily depends upon the legislative intent to be derived from an analysis of the statute involv ed. If the
Legislature is silent as to its intent to occupy a given field, one must look to the purposes of the legislative enactment and to the facts and circumstances upon which the e nactment was intended to operate. If, on the other hand, the Legislature has affirmativel y expressed its intent to either occupy the field or accord concurrent jurisdiction, then pr eemption, except to the extent of concurrent jurisdiction, is clear. ; A local ordinance pro hibiting certain behavior conflicts with a state statute only when the language of the st ate statute expressly or implicitly permits the behavior. 35. The legislature also "expressly" and "implicitly" provides Under MUCA the provisions subject to the following conditions at .085, are not found in .140: (1) Qualifying patients may create and participate in collective gardens for the purpose of producing, processing, transporting, and delivering cannabis for med ical use subject to the following conditions: (a) No more than ten qualifying patients may participate in a single collec tive garden at any time; (b) A collective garden may contain no more than fifteen plants per patient up to a total of forty-five plants; © A collective garden may contain no more than twenty-four ounces of usable c annabis per patient up to a total of seventy-two ounces of useable cannabis; (d) A copy of each qualifying patient's valid documentation or proof of reg istration with the registry established in *section 901 of this act, including a copy of the patient's proof of identity, must be available at all times on the premises of the collective garden; and (e) No usable cannabis from the collective garden is delivered to anyone ot her than one of the qualifying patients participating in the collective garden. (2) For purposes of this section, the creation of a "collective garden" mea ns qualifying patients sharing responsibility for acquiring and supplying the re sources required to produce and process cannabis for medical use such as, for ex ample, a location for a collective garden; equipment, supplies, and labor necess ary to plant, grow, and harvest cannabis; cannabis plants, seeds, and cuttings; and equipment, supplies, and labor necessary for proper construction, plumbing, wiring, and ventilation of a garden of cannabis plants. (3) A person who knowingly violates a provision of subsection (1) of this s ection is not entitled to the protections of this chapter. 36. The MUCA "expressly" and "implicitly" provides the same protections to A
qualifying patient who grow cannabis alone as do qualifying patients whom are en gaging in the private, unlicensed, noncommercial sharing of resources for production, possession, transportation, delivery, or administration of cannabis for medical use as a principal and/or accessory use as "expressly" and "implicitly" intended in sect ion rcw 69.51A.085 therefore, is not lawfully actionable under any criminal and/or civil processes or within a reasonable good-faith argument under any assigned duties for purpose s of legislating/ administering/ executing discriminatory zoning ordinances. 37. The medical use of cannabis is defined by the MUCA to include, among other
things, (3) "Medical use of marijuana" means the production, possession, or administration of marijuana, as defined in *RCW 69.50.101(q), for the exclusive benefit of a qualifying patient in the treatment of his or her terminal or debilitating illness. 38. The County wholly without legal authorization over the specific subject matt er passed a moratorium resolution on vulnerable disabled qualifying patients private, unli censed, non commercial use as defined in rcw 69.51A.085 collective gardens July 12, 2011 , in which it extended for over 1 yr. period allegedly under chapters 36.70A.390 and 35.63 RCW . On June 10, 2013 ALL amended resolutions expired per Axel Swanson' staff report to the planning commission . On June 25, 2013 the Board wholly without le gal authorization again over the specific subject matter passed ordinance NO. 2013-0 7-08 unduly oppressing the principal and accessory uses of plaintiffs property which is not a public problem nor was the ordinance enacted for a valid public purpose, as the conduct and activity is strictly a private affair . The (SEPA/EIS) SPECIFICALLY does not identify a public problem, nor any negative principal or accessory use impacts, in the
private,unlicensed,non commercial producing, processing, transporting, and deliv ering cannabis for medical use subject to the following conditions: .................. ........085 read in harmony with .005, .025 and .040. 39. The statute nd "A preempts the field, leaving no room for concurrent jurisdiction, a
true conflict exists such that the two cannot be harmonized". 40. The county enacting ordinance no. 2013-07-08 therefore wholly without legal authorization over the specific subject matter which allows any private, unlicen sed, non commercial vulnerable disabled qualifying patients collective gardens conduct an d/or activity allowed by state law when conducted pursuant to a valid recommendation/ prescription of a medical practitioner for the use of cannabis for medical treat ment at or on property in a residential zoning district for private, unlicensed non commerc ial home uses, and the effects causes by design such pain and agony as to be equivalent o f that produced by torture. Because it prohibits what state law permits and permits wha t state law prohibits, it causes substantial bodily harm, and even has the potential of causing premature death to a specific class of the states MOST vulnerable disabled citiz ens, it is in violation of article XI, section 11 of the Washington State Constitution, it conflicts with multiple state laws, it usurps the judiciary, the amending ordinance is cle arly outside of the commissioners legislative/administrative/executive authoritative scope , done not in good faith within their assigned duties and, whereas The County would adopt s uch discriminatory zoning ( abating zones of private affairs) and implement rules, r egulations and/or specifications not under their purview and can not be harmonized. 41. The statute(s) in this case involves a "fundamental 'life', 'liberty','prope
rty', 'privacy' Right(s)" and plaintiff belongs to a class of vulnerable disabled citizens by a debilitating and/or terminal condition covered by the statutes whom is negatively affected ,t hus accordingly the presumption of Clark County's ordinance constitutional validity in this specific case is reversed. 42. Because this court should clearly find RCW 69.51A.005,025,.040 and .085 unambiguous, this court cannot construe the statute(s), and this court must simp ly apply them. 43. The above 4 listed sections clearly delineates the plain meaning conveyance of the The intent of the legislature to protect the fundamental 'life', 'liberty','prop erty', 'privacy' right(s)" in ones private unlicensed non commercial affairs and the county legislative/administrative/executive body acted beyond it's scope in bad faith n ot within their assigned duties as delineated in rcw 69.51A.140, 130(2). 44. In determining whether a statute conveys a plain meaning, "that meaning is d iscerned from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question." "If the statute's meaning i s plain on its face, this court gives effect to that plain meaning as the expression of what wa s intended." The authority must be found either in an express grant or by necessary implication from such a grant. Washington State "courts will not expan d the powers of local government beyond express delegations". 45. It is clear that the intent of the voters of Washington, the legislature, an d federal prosecutors discretionary charging policy agree that qualified patients should n ot be punished for use of medical cannabis provided certain requirements have been met . If a
policy is clear and unambiguous, the court must enforce it as written". In such circumstances, the court may not sts create ambiguity where none exists. Ambiguity exi
only where language is susceptible to different interpretations, each of which i s reasonable. Legislatures may not, under the guise of the police power, impose re strictions that are unnecessary and unreasonable upon the use uit of Useful of private property or the purs
activities, including sharing resources delineated in RCW 69.51A.085.
46. When it is clear that a ordinance transgresses the authority vested in a leg islative/ administrative/executive body, it is the duty of the courts to declare the act unconstitutional, because they cannot shrink from it without violating their oat hs of office. A municipal and/or political subdivision regulation is "deemed to confli ct" with a statute if it forbids that which a statute permits or permits that which a statu te forbids. Where there is doubt as to the existence of a state power arguably conferred to a local government, the rule is, this court will construe the question against local gov ernment and against the claimed power.
The Clark County Ordinance 47. The County passed a moratorium resolution on qualifying patients collective gardens July 12, 2011, in which it extended for over 1 yr. and on June 10, 2013 all amen dments too it expired. On June 25, 2013 the Board passed an ordinance , the County of C lark, in which its NEW County Commissioners deliberated, ending in a vote of 2-1 in favor of a political prohibition statement, adopted Ordinance No. 2013-07-08. 48. The ordinance adds Section 15. Amendatory. Ordinance 2006-05-04 as Codified
in CCC 40.340.110 is hereby amended, as follows: Collective Gardens as defined in CCC 40.100.70 49. This reasonably translates into "Uses not expressly permitted under this ord inance are politically prohibited in all districts. Uses that are contrary too this politic al commandeering statement ordinance no. 2013-07-08, are prohibited under federal l aw, allegedly based on, a two-way correspondence too and "from the U.S. Attorney's o ffice", which actually never really factually occurred. The county can not produce ANY d irect correspondence "from the U.S. Attorney office" which is the prosecuting authorit y in the UNITED STATES under federal law too warrant the concern and/or belief's alleged in the findings and conclusions in good-faith. 50. Section 16. Findings. The findings and conclusions contained in the recital clauses above are adopted in support of the boards action in enacting this ordinance. 51. WHEREAS, the Board is concerned that action of county employees issuing perm its for the growth, production, or distribution of cannabis; and collective gardens will make them accessories to the commission of federal crimes "based on correspondence fr om the U.S. Attorney's office"; and 52. WHEREAS, the Board finds and concludes that until the federal/state conflict is resolved the citizens of Clark county will follow federal law related too collec tive gardens; 53. WHEREAS, Title 35.63 and the Washington State Constitution authorize the Boa rd of Clark county commissioners to adopt police power ordinances to promote the pu blic health, safety and welfare;
54. Section 17. Limited non conforming right. Notwithstanding the provisions of chapter 40.530 CCC (non conforming uses and structures) "an existing use" that meets the definition of collective garden as of the effective date of this ordinance shall be brought into full compliance with the provisions of this ordinance within one year of th e effective date. 55. The state believes marijuana has some "beneficial uses", RCW 69.51A.005. 56. Operational Effect(s) of the county ordinance is to make the cultivation, po ssession, delivery, transportation and use of medical cannabis resources sharing a violati on of the zoning ordinance so that plaintiff, a vulnerable disabled qualifying patient, a nd patients with either a debilitating and/or terminally ill condition(s) sharing resources with plaintiff, are subject to the result of seizure with an automatic forfeiture of ANY property, civil penalty including fines, costs, and/or injunction, arrest and/or prosecuti on. The ordinance has the real potential of causing premature death of terminally ill vu lnerable disabled qualifying patients. Thus, relaxing the elements of a death sentence re quirements contrary too state law and legislative/ administrative/ executive authority mand ates of serious harm too the public be found before a jury may enact ANY form of the dea th penalty or a prosecutor seeking a death sentence penalty. The county commissione rs lack authority to lax such elements at the behest of law enforcement, the prosecutor, yet, we have a lax in operational effect written into a local ordinance no. 2013-07-08 a uthorized by the Clark County prosecutors office as too form, and recorded by an action of the clerk of the board. This ordinance, thus, works to invalidate specific state law that
allegedly conflicts with federal law, regardless of the validity of the state statute. The county oversteps its powers granted under the Washington constitution by disregarding s tate law, in favor law enforcement requests, the prosecutor authority as to form and of fe deral law. 57. Plaintiff, like all vulnerable disabled qualifying patients having valid doc umentation on premises with either a debilitating and/or terminally ill medical condition(s ), even in a vulnerable disabled qualifying patients collective gardens is entitled to grow, possess, deliver, transport, administer and use medical cannabis in accordance with the Washington Medical Use of Cannabis Act at their residential premises without bei ng subject to ANY civil and/or criminal penalty and/or seizure and/or forfeiture of property in ANY manner by the defendant county and/or in conjunction with the government employees either county or state under any drug trafficking contract(s)/grants /agreements and the like with the federal government. 58. More disturbing is that if this court allows clark county ordinance no. 2013 -07-08 to set such unconstitutional policy precedent, it would not be limited to medical cannabis,allowing municipalities and/or political subdivisions to contravene sta te law in any area and on any topic they choose, potentially undermining all manner of per sonal conduct and freedoms. If the county of clark prevails, municipalities and/or pol itical subdivisions conceivably would be able to regulate or legalize anything not proh ibited by federal law. Municipalities and/or political subdivisions would be able to argue that they could zone for conduct and/or activities despite contrary state law so long as t he federal laws do not prohibit such conduct and/or activity.
CLAIM FOR RELIEF DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF 59. This court is empowered to enter a declaratory judgment under Uniform Declar atory Judgment Act, Chapter 7.24 RCW , WLAD under chapter 49.60 RCW and Injunctive relief under Chapter 7.40 RCW. This is not a LUPA petition and does not qualify as one. Accordingly, If the court is inclined to find it is or does, the plaintiff has p lead relief and prayed for general damages. As ordinance no. 2013-07-08 is not a land use ordina nce but is an outright prohibition political statement as noted by, the voting in favor NEW commissioners, saying the state can not force them too violate federal laws, the ir moral compass and oath of office won't allow such.. This ordinance was not enacted un der the public interest threshold as required by law. 60. Corporate Subdivisions in Washington may not adopt ordinances in conflict wi th any Washington state statute(s). Such ordinances are preempted by Washington state l aw, and violate Art. XI Sec. 11 of the Washington State Constitution and therefore, are null and void ab initio. 61. It is clear that the intent of the voters of Washington, the legislature, fe deral policy, all agree that qualified patients should not be punished for use of medical cannabis provided certain requirements have been met. 62. Ordinance no. 2013-07-08 is in direct conflict with by the and therefore preempted
Washington Medical Use of Cannabis Act and can not be harmonized. The ordinance authorizes MULTIPLE penalties, property seizure state MUCA law doe s not.
63. Ordinance no. 2013-07-08 is therefore unconstitutional in toto, manifestly unreasonable, arbitrary and capricious, void ab initio and unenforceable on it's face, or as applied to the plaintiff for his medical use of cannabis, sharing his resources as allowed under the Washington Medical Use of Cannabis Act. 64. Ordinance no. 2013-07-08 is in direct violation of nd can and therefore conflicts a
not be harmonized with the Washington Law Against Discrimination. The ordinance on it's face, or as applied too plaintiff, discriminates against s pecific vulnerable persons with specific "Disability" which means the presence of a sens ory, mental or physical impairment that: physiological disorder, or condition, cosme tic disfigurement, or anatomical loss affecting one or more of the following body sy stems: Neurological, musculoskeletal, special sense organs, respiratory, including spee ch organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, s kin, and endocrine; 65. Ordinance no. 2013-07-08 is in direct conflict with by and therefore preempted
Art. 1 Sec. 7 of the Washington State Constitution invasion of private affairs w ithout authority of law. The county ordinance authorizes unreasonable intrusion/invasio n into a person's `private Affairs without any authority of law but said ordinance. 66. Ordinance no. 2013-07-08 is in direct conflict with by and therefore preempted
vested rights doctrine principles of principal and/or accessory use. The ordinance does not allow any normal permits processes listed in the definiti on section of .085(2) which are the same for all permits listed in the IBC adopted by defendant county. Those whom already have a residential occupancy permit are den ied
already vested rights in principal and accessory uses IF your disabled and may w ant to create and participate in sharing resources for a vulnerable disabled qualifying patients collective garden . 67. Ordinance no. 2013-07-08 is in direct conflict with by and therefore preempted
Art.1 Sec.3- No person shall be deprived of life, liberty, or property, without due process of law. The ordinance authorizes deprivations of life,liberty, and property with out due process of law. 68. Ordinance no. 2013-07-08 is in direct conflict with by-Art. and therefore preempted
1 Sec. 14- ... excessive fines imposed, nor cruel punishment inflicted. The Ordinance authorizes imposition of excessive fines, and imposition of inflic ting cruel punishment to a specific vulnerable disabled protected class of persons. 79. Ordinance no. 2013-07-08 is in direct conflict with- the principles of feder alismAccordingly, There is NOT any "positive conflict" between the CSA and the state law such that they cannot stand together. 70. An actual case or controversy exists between the plaintiff and the defendant , that can be redressed by a favorable judicial decision for the plaintiff. 71. Washington case law is clear that an ordinance is preempted where it seeks t o prohibit what a state statute permits, and visa-versa. 72. Therefore, in the present controversy, as it is clear that as the ordinance is attempting to prohibit what the state statute permits,and permits what state law prohibits, the ordinance is unconstitutional in toto ,manifestly unreasonable, arbitrary and ca pricious, null and void ab initio and thus, unenforceable.
RELIEF REQUESTED WHEREFORE, plaintiff hereby prays for the following relief: A. For a declaration that the ordinance is invalid because: (a) it is discriminatory on it s face or applied to plaintiff in violation of WLAD , (b) it is preempted by state law, ( c) it violates plaintiff substantive due process rights, (d) it violates the Wa. State constitution in that it violates plaintiffs rights to equal protection in that it treats the situated persons ,and (e) The county commissioners, county staff, county law enforcement and county prosecutors office acted in bad faith. Accordingly, the subject matter of qualif ying patients collective gardens is not within the scope of assigned duties for any l egislative/ administrative /executive body purview(s) under RCW 69.51A.140. Thus, RCW 69.51A.130 immunity is inapplicable. disabled persons differently than other similar
B. (1) For an injunction prohibiting enforcement of the ordinance , (2) for general damages according to proof, (3) for costs relating to this lawsuit, (4) for reasonable attorney fees pursuant to RCW 49.60 or any other applicable s tatute, and (5) For such other relief that the court deems just and proper. I declare under penalty of perjury under the laws of Washington state that I hav e read the foregoing First Amended Complaint, know it s contents, and that the for egoing First Amended Complaint is true and correct.
Dated this ________ day _____________of October,2013 at brush prairie, Wa. County of Clark ______________________ James E. Barber Sr. acting pro per ______________________________________________________________________________ Received by county BOCCC dated March 17th,2011 Claim for injury and damages: 1). Conversion 2). Disability discrimination 3). Unjust enrichment 4). Tax fraud 5). Theft of honest services 6). Destruction of medical records (in violation of 6 year retention law, in bad faith to avoid suit) 7). Stalking/Harassment 8). Trespass 9). Rico 10). Denial of services accepting federal funds 11) Battery _______________________________________________________________________________
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