bsemaj
New Member
So I went to the planning commission hearing today @ 4 PM and got served with notice the city has motioned the federal court in Tacoma to transfer because my request for damages is a federal question.
Plaintiffs 66 page compliant seeks injunctive relief and money damages against defendant based on inter alia, the following authority: (a) the ADA title II of usc sec. 12101 et. seq.(4th cause of action); (b) sec. 504 rehabilitation act of 1973 29 usc sec. 701 et. seq. (5th cause of action); © 1st amendment right freedom of association(11th cause of action); (d) 14th amendment, for alleged deprivation of life, liberty or property without due process of law(12th cause of action).
I served the city on Nov. 1 and they wasted no time.... after I went to the superior court and requested an emergency TRO which got denied by the drunk judge ... and she made me pay a $ 20 surcharge being on social security... poverty level... putting me below poverty level.
Some judges need to leave office for doing stupid stuff like that ... denying access to the courts is a no-no.
And denied me bond waiver... stupid is as stupid does..
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN THE COUNTY OF CLARK
NO.
JAMES E. BARBER SR. COMPLAINT FOR DECLARATORY
PLAINTIFF, AND INJUNCTIVE RELIEF
WLAD ACTION RCW 49.60
TITLE II ADA VIOLATION
HOUSING DISCRIMINATION
DAMAGES 4.96 RCW
BOND WAIVER REQUEST
(M-3988/VMC 20)
Civil Rule 65
JURY TRIAL DEMAND
v.
CITY OF VANCOUVER, WA. ET. AL,
A WASHINGTON STATE POLITICAL
SUBDIVISION. ,DOES 1 TO 50, inclusive
DEFENDANT(S),
INTRODUCTION
1. Plaintiff James E. Barber Sr. a known by the City of Vancouver tobe a severely
disabled Washington State citizen on SSD , appearing pro-se, brings this civil action
against defendant City of Vancouver, WA., et. al. seeking declaratory relief under the
Uniform Declaratory Judgment Act, Chapter 7.24 RCW, injunctive relief under Chapter
7.40 RCW, Civil Rule 65, Chapter 49.60, Chapter 4.96 RCW, ADA Title II, and Housing
Discrimination.
Defendant the City of Vancouver is a political subdivision of the State of Washington.
This is not a LUPA petition as no finality has been had between Plaintiff and Defendants.
JURISDICTION AND VENUE
2. The court has subject matter jurisdiction over this matter under RCW 7.24 et. Seq.,
Civil Rule 65 Chapter,7.40 RCW, Chapter 49.60 RCW, 4.08.120 RCW, Chapter 4.96
RCW, State Constitution Art. 4 § 6 (Amendment 28). Defendant MUNICIPALITY is
located in this judicial district.
The acts, omissions, occurrences, injuries caused, and/or liabilities that are alleged in this
Complaint took place in this judicial district.
3. Accordingly, Venue is proper in Clark County Superior Court Chapter 2.08.210 RCW,
Chapter 4.12.025 RCW . Clark County Superior Court is the County Court in which both
Plaintiff and Defendant are located .
PARTIES AND STANDING
4. Plaintiff is a citizen of the State of Washington. Plaintiff is a “qualifying patient” with valid
documentation as required under Chapter 69.51A et. seq.
5. Plaintiff has “full” 100% SSA disability rating and rights under other federal laws which have
been prohibited within the city of vancouver located in the county of clark.
6. Plaintiff has standing.
7. Defendant CITY OF VANCOUVER ("MUNICIPALITY") is a Washington city established
and operating under provisions of art.XI of the Washington State Constitution.
8. Defendant City of vancouver is a political subdivision of the State of Washington located in the
county of clark, WA.. .
9. Plaintiff is informed and believe and based upon such information and belief allege that
MUNICIPALITY receives federal financial assistance.
10. Plaintiff is informed and believe and based upon such information and belief allege that
MUNICIPALITY receives financial funding from the State of Washington.
11. Defendant MUNICIPALITY is a "public entity~' within the meaning of 42 U.S.C. § 12131(1)
and 28 C.F.R. Part 35.
12. Plaintiff is presently unaware of the true names and capacities of Defendants designated as
DOES 1 TO 50, inclusive, ('"DOE DEFENDANT(S)") and therefore sue the DOE DEFEND-
ANTS by fictitious names and will seek leave of the Court to amend this Complaint to set forth
the true names and capacities of the fictitiously designated Defendants when such information
has been ascertained.
13.Plaintiffs are informed and believe and based upon such information and belief allege that each
of the DOE DEFENDANTS is responsible in some manner for the acts, omissions~ occurrences
and/or liabilities alleged in this Complaint.
14.This action is for violation of civil rights, declaratory relief, and injunctive relief. Accordingly,
filing in this judicial district and courthouse is proper under the Local Rules of this Court.
15. It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
BACKGROUND FACTS
16. In E2SSB 5073 the legislature had set up a system whereby the commercial business of
cultivation, materials handling and final sales of cannabis were to be licensed, registered and
zoned. The legislature did not amend 69.51A requiring commercial business licensing, registering
or zoning of patient growers, designated provider growers nor qualifying patients collectively
gardening. Obviously, the Legislature had no intent to do so.
17. But,, the governor explicitly designated local governments to have concurrent jurisdition over
non-profit cannabis oraganizations consisting of both qualifying patients and their designated
providers sharing in the responibility of it's medical cannabis membership(s).
18.A Vancouver City council meeting was held July 18, 2011. In his opening statement City
Attorney Ted Gathe states The County had already passed a moratorium.
19. Just previous to that, “The item before you tonight, here in council, is an interim moratorium
ordinance that is authorized by state law. To be passed on what is somewhat of an
emergency basis; which would create a six month moratorium on the establishment, location,
operation, licensing, maintenance or continuation of medical marijuana collective gardens
or dispensaries.”
The City used their emergency moratorium authority without public notice under the
auspice in good faith and within the scope of their assigned duties under Chapter 69.51A.
130 RCW intertwined with (if not bootstrapped to) Chapter 69.51A.140 RCW for interpreting
land use and zoning districts on the use of cannabis by qualifying patients and their collective
gardens at thier residential premises, as well as licensed dispensers (the city refers to as dispen-
saries} as necessary to further the public interest, for their health, safety, morals and welfare.
20. On September 12, 2011, the City held a public hearing as required by both moratoria
statutes and passed a preclusion ban on "qualifying patients collective gardens at their residential
premises as delineated in the statute, intertwined with dispensaries which is not deliniated in any
statute, just "licensed dispensers" are. The rule is that, to justify any law upon the theory that it
constitutes a reasonable and proper exercise of the police power, it must be reasonably necess-
ary in the interest of the health, safety, morals, or welfare of the people.
In State ex rel. Faulk v. CSG Job Ctr.,117 Wn.2d 493, 816 P.2d 725 (1991), this court
announced a two-part test to be employed when determining the validity of a statute
passed pursuant to the police power.
1.) First, the statute must promote the health, safety, peace, education, or welfare of the
people. CSG Job Ctr., 117 Wash.2d at 504, 816 P.2d 725
2.) Second,the requirements of the statute must bear some reasonable relationship to
accomplishing the purpose underlying the statute.CSG Job Ctr, 117 Wash.2d at 504,
816 P.2d 725.
21.The Washington Supreme Court has stated that federal preemption of state law, under the
Supremacy Clause of the US. Constitution (Art. VI), can occur in multiple ways:
"Congress may preempt state law by explicitly defIning the extent to which its enactments
preempt laws (express preemption). Preemption may also occur where the federal government
intends to exclusively occupy a fIeld (fIeld preemption) and where it is impossible to comply with
both state and federal law (conflict preemption)." Veit v. Burlington N Santa Fe Corp., 171 Wn.2d
88, 99, 249 P.3d 6097 (2011) (citing Campbell v. Dep't ofSoc. & Health Servs., 150 Wn.2d 881,
897, 83 P.3d 999(2004)).
Conflict preemption is found where it is impossible to comply with both state and federal law or
where state law "stands as an obstacle to the accomplishment of the full purposes and objectives
of Congress." McKee v. AT&T Corp., 164 Wn.2d 372, 387191 P.3d 845 (2008); citing Silkwood
v. Kerr-McGee Corp.,464 U.S. 238, 248, 104 S. Ct. 615, 78 L. Ed. 2d 443 (1984).
APPLICABLE DISABILITY LAWS
22. ROE v. TELETECH CUSTOMER CARE MANAGEMENT 257 P.3d 586 (2011) (Quite
often, marijuana is used to treat conditions that would qualify as a disability. Compare RCW
69.51A.010 (listing some of the qualifying conditions), with RCW 49.60.040(7)(a) (defining
"disability" for purposes of the Washington Law Against Discrimination, chapter 49.60 RCW).
23. To qualify as a suspect class. "the class must have suffered a history of discrimination. have
as the characteristic defining the class an obvious, immutable trait that frequently bears no relation
to ability to perform or contribute to society,and show that it is a minority or politically powerless
class.Race, alienage, and national origin are examples of suspect classifications. Andersen v.
King County,158 Wn.2d 1, 19, 138 P.3d 963 (2006).
WASHINGTON LAW AGAINST DISCRIMINATION(WLAD)
24. Wa. State statute chapter 49.60 , the Washington law against discrimination, prohibits laws,
rules, policies, procedures, and actions by anyone, including but, not limited to state, county,and
city governments that facially or through disparate impact discriminate against qualified disabled
individuals.
25. 49.60.220 It is an unfair practice for any person to aid, abet, encourage, or incite the co-
mmission of any unfair practice, or to attempt to obstruct or prevent any other person from
complying with the provisions of this chapter or any order issued thereunder.
26. 49.60.222 . It is an unlawful practice to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment of, or on account of his or her having exercised or enj-
oyed, or on account of his or her having aided or encouraged any other person in the exercise or
enjoyment of, rights regarding real estate transactions secured by RCW 49.60.030,
49.60.040, and 49.60.222 through 49.60.224.
27. 49.60.224 It is an unfair practice to insert in a written instrument relating to real pro-
perty a provision that is void under this section or to honor or attempt to honor such a provi-
sion in the chain of title.
28. City of Vancouver Ord. M-3988 and proposed Ord. both prohibit that which is authorized
by state law explicitly, qualifying patients associate class-member' collective gardens at his/her
private residential premises, which is preempted. The City of Vancouver ordinance is field pre-
empted by state law in 4 codified sections. Chapters 35.63.220 RCW, 35A.63.240 RCW,
36.70.990 RCW and 36.70A.410 RCW .
29. A local ordinance prohibiting certain behavior conflicts with a state statute only when the
language of the state statute expressly or implicitly permits the behavior. Luvene, 1 l8 Wash.2d
826,839,827 P.2d 1374 (1992). "In Burton, Division II of the appellate court created a four-part
test to determine whether a county may exact a road as a condition for development. "First, the
county must identify a public problem that the condition is designed to address." Burton, 91
Wn.App at 520. If it is only a private problem, the government lacks a legitimate public
purpose and the action is unconstitutional. Burton, 91 Wn. App. at 520. And the commercial
development of an individual's parcel is a private problem. Burton, 91 Wn. App. at 521.
TREATMENT OF RESIDENTIAL STRUCTURES OCCUPIED BY PERSONS
WITH HANDICAPS.
30. 35.63.220 RCW No city may enact or maintain an ordinance, development regulation,
zoning regulation or official control, policy, or administrative practice which treats a residential
structure occupied by persons with handicaps differently than a similar residential structure
occupied by a family or other unrelated individuals. As used in this section, "handicaps" are as
defined in the federal fair housing amendments act of 1988 (42 U.S.C. Sec. 3602).
31. 35A.63.240 RCW No city may enact or maintain an ordinance, development regulation,
zoning regulation or official control, policy, or administrative practice which treats a residential
structure occupied by persons with handicaps differently than a similar residential structure
occupied by a family or other unrelated individuals. As used in this section, "handicaps" are as
defined in the federal fair housing amendments act of 1988 (42 U.S.C. Sec. 3602).
32. 36.70A.410. RCW No county or city that plans or elects to plan under this chapter
may enact or maintain an ordinance, development regulation, zoning regulation or official
control, policy, or administrative practice which treats a residential structure occupied by
persons with handicaps differently than a similar residential structure occupied by a family or
other unrelated individuals. As used in this section, "handicaps" are as defined in the federal fair
housing amendments act of 1988 (42 U.S.C. Sec. 3602).
33. 36.70.990 RCW No county may enact or maintain an ordinance, development regulation,
zoning regulation or official control, policy, or administrative practice which treats a residential
structure occupied by persons with handicaps differently than a similar residential structure
occupied by a family or other unrelated individuals. As used in this section, "handicaps" are as
defined in the federal fair housing amendments act of 1988 (42 U.S.C. Sec. 3602).
34. 42 USC sec. 3602- Definitions
(b) “Dwelling” means any building, structure, or portion thereof which is occupied
as, or designed or intended for occupancy as, a residence by one or more families,
and any vacant land which is offered for sale or lease for the construction or location
thereon of any such building, structure, or portion thereof.
(f) “Discriminatory housing practice” means an act that is unlawful under section
3604, 3605, 3606, or 3617 of this title.
(h) “Handicap” means, with respect to a person—
(1) a physical or mental impairment which substantially limits one or more of such
person’s major life activities,
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment,
35. 42 USCS 3604(f)(2006). The act preempts conflicting laws.Id. $ 3615(any state or local
law " that purports to require any action that would be discriminatory housing practice
under this subchapter to that extent be invalid").
Amendments in 1988 prohibit discrim. against the handicapped.
36. A 3 bedroom dwelling with 3 qualifying patients whom also are designated providers can have
up to 90 plants and 144 Oz.total .The same 3 bedroom dwelling with the same qualifying patients
whom instead have a associate disabled class-member' collective garden are "restricted" to half of
the 90 plants ... i.e. 45 plants and only 72 Oz.
The defendant MUNICIPALITY has no good faith reasonable arguments to ban nor restrict one
use by specific disabled asscoiate class-member' which is already "restricted" by state law ... .
State ex reI. Bond v. State, 59 Wash.2d 493, 503, 368 P.2d 676 (1962) (Rosellini, J., dissenting)
(emphasis added) (quoting Alice in Wonderland) .Article I, section 16 of the Washington Con-
stitution provides, "No private property shall be taken or damaged for public or private use without
just compensation having first been made." Under this section, the state effects an unconstitutional
regulatory taking when it enacts a regulation that goes "too far" in infringing the plaintiff's property
rights. See, e.g., Orion Corp. v. State, 109 Wn.2d 621, 646, 747 P.2d 1062 (1987) (Orion II).
APPLICATION OF THE HOUSING POLICY ACT
37. We turn then to whether the planned population of the Home is handicapped under the
WHPA. The statute does not itself define "handicap." Instead it references the federal Fair
Housing Amendments Act of 1988, 42 U.S.C. § 3602:
(h) "Handicap" means, with respect to a person —
(1) a physical or mental impairment which substantially limits one or more of such person's
major life activities,
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment . ..
38. The regulations implementing the Rehabilitation Act of 1973 are also instructive since the
"handicap" definition is identical to that in the housing act. 45 C.F.R. pt. 84, app. A contains
language identical to the above, but it goes on to say:
[O]nly physical and mental handicaps are included. Thus, environmental, cultural,
and economic disadvantage are not in themselves covered; nor are prison records, age,
or homosexuality. Of course, if a person who has any of these characteristics also has a
physical or mental handicap, the person is included within the definition of
handicapped person.
45 C.F.R. pt. 84, app. A, at 355 (1994).
39. Originally focused on discrimination on the basis of race, color, national origin and religion,
the FHA was expanded to address sex-based discrimination in 1974 and to address discrimin-
ation on the basis of familial status and disability in 1988. Housing and Community Develop-
ment Act of 1974, Pub. L. 93-383, §808, 88 Stat. 633, 729 (1974);Fair Housing Amendments
Act of 1988, Pub. L. 100-430, 102 Stat. 1619-39 (1988).
40. The FHA can be violated by either intentional discrimination or if a practice has a disparate
impact on a protected class. Cmty. Serv., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 176
(3d Cir. 2005).Under the Act, any person harmed by discrimination, whether or not the target of
the discrimination, can sue to recover for his or her own injury. See Trafficante v. Metropolitan
Life Ins. Co., 409 U.S. 205, 212, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). "This is true, for example,
even where no housing has actually been denied to persons protected under the Act." San Pedro
Hotel, 159 F.3d at 475-76 (upholding standing of hotel owners in suit alleging that the City inter-
fered with the housing rights of the mentally ill); Smith v. Stechel, 510 F.2d 1162, 1164
(9th Cir.1975) (real estate agent fired for renting apartments to minorities allowed to sue under the
Act).
41. The Supreme Court has long held that claims brought under the Fair Housing Act are to be
judged under a very liberal standing requirement. Unlike actions brought under other provisions of
civil rights law, under the FHA the plaintiff need not allege that he or she was a victim of dis-
crimination. See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 115, 99 S.Ct. 1601, 60 L.
Ed.2d 66(1979) (holding that Caucasian residents have standing under the Act to challenge racial
discrimination against African-Americans in their neighborhood). Rather, the sole requirement for
standing under the Act is the "Article III minima of injury in fact." Havens Realty Corp. v. Cole-
man, 455 U.S. 363, 372, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). To meet this requirement, a
plaintiff need only allege "that as a result of the defendant's [discriminatory conduct] he has
suffered a distinct and palpable injury." Id.
42. In enacting the Americans with Disabilities Act, Congress concluded that it was important for
the current legislation to use terminology most in line with the sensibilities of most Americans with
disabilities. No change in definition or substance is intended nor should one be attributed to this
change in phraseology.
The term "disability" means, with respect to an individual -
(A) A physical or mental impairment that substantially limits one or more of the major life activities
of such individual;
(B) A record of such an impairment; or
(C) Being regarded as having such an impairment.
If an individual meets "any one of these three tests", he or she is considered to be an
individual with a disability for purposes of coverage under the Americans with
Disabilities Act.
43. Title II of 42 U.S.C. §§ 12101, et seq., the Americans with Disabilities Act ("ADA"),
provides that no qualified individual with a disability shall, by reason of such disability., be
excluded from participation in or be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any such entity. (42 U.S.C. § 12132,
et seq.; 28 C.F.R. pt. 35; 49 C.F.R. pts. 37 and 38.)
44. Defendant MUNICIPALITY may be held liable for damages in ADA Title II cases. (See,
e.g., Board of Trustees of the University ofAlabama v. Garrett (2001) 531 U.S. 356 [holding
city and county governments are not protected from damage awards in ADA Title II cases
under the Eleventh Amendment's sovereign immunity provision]; see also Tennessee v. Lane
(2004) 541 U.S. 509; United States v. Georgia (2006) 126 S. Ct. 877).
45. Section 504 of 29 U.S.C. §§ 701, et seq., the Rehabilitation Act of 1973 ("SEC. 504")~
prohibits discriminatory actions against handicapped individuals by federally funded government
entities.
46. Title 42 U.S.C. § 1983, the Civil Rights Act of 1871 ("SEC. 1983"), provides that "[e ]very
person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress." Under 42 U.S.C. § 1983,
"substantive due process is denied if a local jurisdiction makes a land use decision irrationally,
arbitrarily, and capriciously, its decision utterly fails to serve a legitimate governmental purpose, or
was tainted by improper motive." Cox v. City of Lynnwood,72 Wn.App. 1, 9, 863 P.2d 578 (1993)
(citing Robinson v. City of Seattle,119 Wn.2d 34, 62, 830 P.2d 318 (1992)).
47.Section 1 of the Fourteenth Amendment provides in pertinent part that "[n]o State shall . . deny
to any person within its jurisdiction the equal protection of the laws."
48. The Fourteenth Amendment provides equal protection of the law to all citizens: "'persons
similarly situated with respect to the legitimate purpose of the law receive like treatment.", Guard
Estate of Keffeler v. DSHS, 151 Wn.2d 331, 339, 88 P.3d 949 (2004)(internal cites omitted).
Paramount to the equal protection clause is the idea that all individuals With in one group must be
treaty equally. TO succeed with a equal protection challenge,a person must first establish that he
is similarly situated with other persons in a class who have received different treatment under the
same law.
49. The equal protection clause, found in the 14th Amendment to the U.S. Constitution has
consistently been construed substantially identically with the privileges and immunities clause found
in Article I, Section 12 of the Washington Constitution. Holbrook, Inc. v. Clark County, 112 Wn.
App 354, 367,49 P.3d 142 (2002); citing Equitable Shipyards, Inc. v. State, 93 Wn.2d 465, 476, 611
P.2d 396 (1980).State v. Osman, 157 Wn.2d 474, 139, P.3d 334 (2006); State v. Handley, 115 Wn.
2d 275 289-90, 796 P.2d 1266 (1990). If those within the class are treated equally, then equal
protection is satisfied and the analysis should end.
50. There are "two types of associational rights protected by the Constitution: the freedom of
'expressive association' and the freedom of 'intimate association.'" Am. Legion Post No. 149 v.
Dep't of Health, 164 Wn.2d 570, 601, 192 P.3d 306 (2008); citing City of Bremerton v. Widell, 146
Wn.2d 561, 575, 51 P.3d 733 (2002). Freedom of expressive association derives from the First
Amendment and applies to government interference with speech, assembly, redress of grievances,
and exercise of religion. Roberts v. US. Jaycees, 468 U.s. 609, 618, 104 S. Ct 3244, 82 L. Ed. 2d
462 (1984). Freedom of intimate association derives from the due process clause and principles of
liberty and privacy. Freedom of intimate association protects the "choices to enter into and
maintain certain intimate human relationships." fd. at 617. These relationships are protected
because they "have played a critical role in the culture and traditions of the Nation by cultivating
and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers
between the individual and the power of the State." fd. at 618-19. Such relationships are those
''that attend the creation and sustenance of a family," including marriage, childbirth, the raising and
education of children, and cohabitation with one's relatives. fd. at 619.
51. 6A Eugene McQuillin, The Law of Municipal Corporations § 24.54, at 150
(3d rev. ed.1997) ("that which is allowed under state law cannot be prohibited by ordinance").
This principle dates back to the earliest days of statehood. See Thomas M. Cooley, A Treatise
on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the
American Union 741 n. 2 (6th ed. 1890) ("If the municipal authority should assume to declare
something which was entirely lawful by the law of the State to be a nuisance, the declaration
would be a mere nullity because in conflict with the superior law.").
. ARTICLE XI § 11 OF THE WASHINGTON STATE CONSTITUTION.
52. SECTION 11 POLICE AND SANITARY REGULATIONS. Any county, city, town or
township may make and enforce within its limits all such local police, sanitary and other regulati-
ons as are not in conflict with general laws.
53. The above sentence prohibits municipalities from trumping state law.,and Court precedents
quoting Article XI, § 11 are many . The plaintiff believes the following makes his case
quite well.
WEDEN v. SAN JUAN COUNTY, 135 Wash.2d 678, 958 P.2d 273 (1998) Article XI, §
11 requires a local law yield to a state statute on the same subject matter if that statute
“preempts the field, leaving no room for concurrent jurisdiction,” or “if a conflict exists
such that the two cannot be harmonized.”
Then Attorney General Christine Gregoire states:
“The plenary police power in 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 concurrent 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 involved.
If the Legislature is silent as to its intent to occupy a given field, one must look to the pu-
rposes of the legislative enactment and to the facts and circumstances upon which the
enactment was intended to operate. If, on the other hand, the Legislature has
affirmatively expressed its intent to either occupy the field or accord concurrent
jurisdiction, then preemption, except to the extent of concurrent jurisdiction, is clear.”
. ARTICLE I § 7 OF THE WASHINGTON STATE CONSTITUTION
54. SECTION 7 INVASION OF PRIVATE AFFAIRS OR HOME PROHIBITED. No
person shall be disturbed in his private affairs, or his home invaded, without authority of
law.
Under the clear wording of the MUNICIPALITY ord. Any rights of privacy are
banished by prohibition, cf. Griswold v. Connecticut, 381 U. S. 479; Eisenstadt v.
Baird, 405 U.S. 438, 453-454.
ARTICLE I § 14 OF THE WASHINGTON STATE CONSTITUTION
55. SECTION 14 EXCESSIVE BAIL, FINES AND PUNISHMENTS. Excessive bail
shall not be required, excessive fines imposed, nor cruel punishment inflicted.
56. An assault is an attempt, with unlawful force, to inflict bodily injury upon another accompanied
with the apparent present ability to do harm if not prevented; whether there has been an ass-
ault depends more upon the apprehension created in the mind of the person assaulted than
upon the undisclosed intention of the person committing the assault.
57..The objective standard as asking "whether a reasonable person would foresee that the
statement would be interpreted by those to whom the maker communicates the statement as a
serious expression of intent to harm or assault." United States v. Orozco-Santillan,903 F.2d
1262, 1265 (9th Cir.1990); see also Lovell, 90 F.3d at 372.
The objective standard calls for an examination of the speech in the "light of [its] entire factual
context, including the surrounding events and reaction of the listeners." Orozco-Santillan, 903 F.2d
at 1265; see also Bellrichard, 994 F.2d at 1321 (focusing the inquiry on the context of the speech).
This line of cases and the objective standard were called into question by the Supreme Court's
statement in Black that "`[t]rue threats' encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful violence toa particular
individual or group of individuals," 538 U.S. at 359,123 S.Ct. 1536. Following Black, the court
applied a subjective standard in United States v. Cassel,408 F.3d 622, 633 (9th Cir.2005). The
court "conclude[d] that speech may be deemed unprotected by the First Amendment as a`true
threat' only upon proof that the speaker subjectively intended the speech as a threat." Id.
The Supreme Court has since analyzed speech under both an objective and a subjective standard.
In United States v. Stewart,420 F.3d 1007, 1015 (9th Cir.2005),the defendant stated that "he
wanted to target a judge and `string the motherfucker up and cut her throat, his throat, and make it
like a copycat so that people would do the same thing.'" The court found it unnecessary to
choose between an objective and subjective standard because the speech constituted a true
threat under either standard.Id. at 1018-19 . As in Stewart, it is unnecessary in this case to
choose between an objective and subjective standard as the communications speak for themselves
along with the following actions of the city of Vancouver in suit to put it in words and contact the
media.
58. In State v. Vanderveer, 115 Wn. 184, 196 Pac. 650 (1921),it is stated that "An act done will-
fully is done intentionally and designedly." (Italics ours.) In State v. Evans,32 Wn.2d 278, 201
P.2d 513 (1949) (a second degree assault case), the court pointed out that "A willful act is one
done intentionally, not accidentally." "[T]he term, `malice' conveys the meaning of hatred, ill-will,
or hostility toward another. . . . [M]alice has been frequently, substantially so defined as consisting
of the intentional doing of a wrongful act toward another without legal justification or excuse."
State v. Heyward, 197 S.C. 371, 15 S.E.2d 669, 671 (1941). The phrase "by design" means "inten-
tionally" and is not vague. "Grievous bodily harm", includes any hurt or injury calculated to in-
terfere with the health of the person injured, but need not be a permanent injury. "Grievous"
means atrocious, aggravating, harmful, painful, hard to bear, or serious in nature. One pur-
pose of affording constitutional rights to accused individuals and imposing limits on the State is to
protect accused individuals from overreaching by the disproportionately powerful State. Payne v.
Tennessee,501 U.S. 808, 860, 115 L.Ed.2d 720, 111 S.Ct. 2597 (1991) (Stevens, J., dissenting).
See also Pulley v. Harris,465 U.S. 37, 45, 79 L.Ed.2d 29, 104 S.Ct. 871 (1984) (constitutional
review of death penalty statutes is to avoid "wholly arbitrary, capricious, or freakish sentences");
State v. Cater's Motor Freight Sys., Inc., 27 Wn.2d 661, 667, 179 P.2d 496 (1947) (due process
guaranty protects individuals from arbitrary exercise of powers of government).
To ensure the death penalty is not imposed arbitrarily or invidiously, the jury must find at least one
aggravating factor involved in the crime.
"It is of vital importance to the defendant and to the community that any decision to impose the
death sentence be, and appear to be, based on reason rather than caprice or emotion". Barth-
olomew II, 101 Wn.2d at 638 (quoting Gardner v. Florida,430 U.S. 349, 358, 51 L.Ed.2d 393, 97
S.Ct. 1197 (1977)).
59. Assault is a crime against the state as well as against the victim, and forgiveness of the
assailant by the victim does not change the fact that a crime was committed; nor does the fact that
the victim desires that the charges be dropped imply that the force used by the assailant was
lawful.
Second degree assault inflicted by torture is not a lesser included offense of first degree assault.
60. As noted above, the MUNICIPALITY ord. and proposed ord. has been intentionally designed
to assault the plaintiff and a whole community just like the plaintiff without legal
justification or excuse and has inflicted cruel torturing punishment which is hard to bear, harmful,
painful, and very serious in nature when citizens are unable to mitigate these harms.. this is ill will
and hostility towards a subset class of disabled citizens. Not only is it criminal but also unconstitut-
ional. Plaintiff has been damaged.
61. In Seattle Trust Co. v. Roberge, 278 U. S. 116, Seattle had a zoning ordinance that permitted
a " `philanthropic home for children or for old people' " in a particular district " `when the written
consent shall have been obtained of the owners of two-thirds of the property within four hundred
(400) feet of the proposed building.' " Id.,at 118. The Court held that provision of the ordinance
unconstitutional, saying that the existing owners could "withhold consent for selfish reasons or
arbitrarily and may subject the trustee [owner] to their will or caprice." Id., at 122.Unlike the bill-
board cases (e. g., Cusack Co. v. City of Chicago, 242 U. S. 526), the Court concluded that the
Seattle ordinance was invalid since the proposed home for the aged poor was not shown by its
maintenance and construction "to work any injury, inconvenience or annoyance to the
community, the district or any person." 278 U. S., at 122.
62. RCW 7.48.160 Authorized act not a nuisance.
Nothing which is done or maintained under the express authority of a statute, can be deemed a
nuisance.
[Code 1881 § 1238; 1875 p 79 § 4; RRS § 9916.]
63.Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ("[The right to vote]
is regarded as a fundamental political right, because preservative of all rights.");
64. United States v. Bass, 404 U.S. 336, 349-50 (1971)(citation omitted) (unless Congress conveys
its purpose clearly, it will not be deemed to have altered “sensitive federal-state relationships”).
65. Public entities hold a unique trust on behalf of the citizens they represent and are generally
subject to constitutional obligations to provide equal protection to all persons within their jurisd-
iction. In such cases, the threat of disparate impact liability may be an effective means to assure
thatpublic bodies consider the impact of their actions on persons within their jurisdiction and to
cause them to refrain from action that has an unequal impact.See Peter E. Mahoney, The End(s)
Of Disparate Impact: Doctrinal Reconstruction, Fair Housing And Lending Law, and the Anti-
discrimination Principle, 47 EMORY L.J. 409, 440–42 (1998).
66. RCW 69.51A.130 State and municipalities — Not subject to liability.
(1) No civil or criminal liability may be imposed by any court on the state or its officers and
employees for actions taken in good faith under this chapter and within the scope of their
assigned duties.
(2) No civil or criminal liability may be imposed by any court on cities, towns, and counties or
other municipalities and their officers and employees for actions taken in good faith under this
chapter and within the scope of their assigned duties.
[2011 c 181 § 1101.]
67. 4.96.010 All local governmental entities, whether acting in a governmental or proprietary
capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct
of their past or present officers, employees, or volunteers while performing or in good faith purp-
orting to perform their official duties, to the same extent as if they were a private person or corp-
oration. Purpose -- 1993 c 449: "This act is designed to provide a single, uniform procedure for
bringing a claim for damages against a local governmental entity. The existing procedures,
contained in chapter 36.45 RCW, counties, chapter 35.31 RCW, cities and towns,
chapter 35A.31 RCW, optional municipal code, and chapter 4.96 RCW, other political sub-
divisions, municipal corporations,and quasi-municipal corporations,are revised and consolidated
into chapter 4.96 RCW." [1993 c 449 § 1.]
68. It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills,may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
. SSA APPLICABLE DISABILITY LAW
69. On March 28, 1996,(1st yr any medical cannabis act went into law for seriously ill qualifying
patient whom are "DISABLED" and using cannabis) Congress amended Title II of the Social
Security Act by adopting the Contract With America Advancement Act ("CAAA"), Pub.L. No.
104-121 § 105(a)(1)
(C). The amendment provides: "An individual shall not be considered to be disabled for purposes
of this title if alcoholism or drug addiction would (but for this subparagraph) be a contributing
factor material to the Commissioner's determination that the individual is disabled."
70. "In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record
including, inter alia, medical records, lay evidence, and `the effects of symptoms, including pain,
that are reasonably attributed to a medically determinable impairment.'" Robbins v. Social Security
Admin., 466 F.3d 880, 883 (9th Cir. 2006).
71. For purposes of the Social Security Act, disability is the "inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A);
Schaal, 134 F.3d at 501.
72.Under the authority of the Social Security Act, the Social Security Administration has
established a five-step sequential evaluation process for determing whether an individual is diabled
(20 CFR 404.1520(a) and 416.920(a)). These steps are followed in order. If it is determined that
the claimant is or is not disabled at a step of the evaluation process, the evaluation will not go on
to the next step.
73. If it is found that a claimant is disabled and there is medical evidence of a substance use
disorder(s), the undersigned must determine if the substance use disorder(s)
is a contributing factor material to the determination of disability. In making this
determination, the undersigned must evaluate the extent to which the claimant's mental and
physical limitations would remain if the claimant stopped the substance use. If the remaining limit-
ations would not be disabling, the substance use disorder(s) is a contributing factor material to
the determination of disability(20 CFR 404.1535 and 416.935). If so the claimant is not dis-
abled.
74. Plaintiff has the burden of showing that drug and alcohol addiction (DAA) is not a con-
tributing factor material to disability. Ball v. Massanari, 254 F.3d 817, 823 (9th Cir.2001). The
Social Security Act bars payment of benefits when drug addiction and/or alcoholism is a
contributing factor material to a disability claim.42 U.S.C. §§ 423 (d)(2)(C) and 1382 (a)
(3)(J); Sousa v. Callahan,143 F.3d 1240, 1245 (9th Cir.1998). If there is evidence of DAA and the
individual succeeds in proving disability, the Commissioner must determine whether DAA is
material to the determination of disability. 20 C.F.R. §§ 404.1535 and 416.935. If an ALJ
finds that the claimant is not disabled, then the claimant is not entitled to benefits and there
is no need to proceed with the analysis to determine whether substance abuse is a contributing
factor material to disability.However, if the ALJ finds that the claimant is disabled, then the ALJ
must proceed to decide if the claimant would be disabled if he or she stopped using alcohol
or drugs.
75. Sutton v. United Airlines, Inc. is inapplicable to social security and state disability laws of
unemployable and the plaintiff in this case or any other in regards to using cannabis with such a
disability.
REHABILITATION SERVICES
76. Treatment Referrals for Individuals With An Alcoholism or Drug Addiction Condition
(e) In the case of any individual whose benefits under this title are paid to a representative payee
pursuant to section 205(j)(1)(B), the Commissioner of Social Security shall refer such individual to
the appropriate State agency administering the State plan for substance abuse treatment services
approved under subpart II of part B of title XIX of the Public Health Service Act (42 U.S.C.
300x-21et seq.).
[236] P.L. 106-170, §101(b)(1)(B); 113 Stat.1873.
[237] P.L. 106-170, §101(b)(1)(C); 113 Stat.1873.
[238] The month is October 1960; the paragraph was enacted on September 13, 1960, as part of
P.L. 86-778 [74 Stat. 968].
[239] P.L. 93-112.
[240] P.L. 93-112.
77. It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
CLARIFICATION OF DISABILITY UNDER TITLE II OF THE ADA.THE CSA
REGULATES RECREATIONAL DRUG USE/ABUSE (TRAFFICKING) AND NOT
MEDICINAL USE OF NATURAL DRONABINOL (THC-DELTA-9 ISOMER) FOR
MEDICAL PURPOSES.
78. There is considerable evidence that efforts to regulate cannabis (THC) use in the early-
twentieth century targeted recreational use, but permitted medical use. See Richard J. Bonnie
& Charles H. Whitebread, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the
Legal History of American Marijuana Prohibition, 56 Va. L.Rev. 971, 1010, 1027, 1167 (1970)
(noting that all twenty-two states that had prohibited cannabis(THC) by the 1930s created
exceptions for medical purposes). By 1965, although possession of cannabis (THC) was a crime
in all fifty states, almost all states had created exceptions for persons for whom the drug had been
prescribed or to whom it had been given by an authorized medical person. Leary v. United States,
395 U.S. 6, 16-17 (1969). See Raich v. Gonzales, 500 F.3d 850, 865 (9th Cir. 2007).The CSA was
passed in 1970 with the main objectives of combating drug abuse and controlling the legitimate and
illegitimate traffic in controlled substances. Gonzales v. Oregon (2006) 546 U.S. 243, 250. The
CSA set up a comprehensive regulatory scheme criminalizing unauthorized activities relating to the
substances in any of the Act’s five schedules.Id.The focus of the CSA is “combating recreational
drug abuse.” Id. at 246. The purpose of the CSA is to combat recreational drug abuse and not
regulate state medical practices. Id. at 270-272; County of San Diego v. San Diego NORML, 165
Cal.App.4th 798; City of Garden Grove v. Superior Court, 157 Cal.App.4th 355. Thus, the goal of
the CSA is to regulate and control recreational drug use as in I-502, while allowing states to regul-
ate medical practices as under state law(s) MUCA and SSA under other federal law(s).
79.Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such
disability,be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity or be subjected to discrimination by any such entity.” 42 U.S.C.§
12132. A “public entity” includes “any State or local government,” id.§ 12131(1)(A), and there
is no dispute that the defendant MUNICIPALITY IS a public entity for purposes of Title II.
Title II of the ADA was expressly modeled after Section 504. Thus, "[t]here is no significant
difference in analysis of the rights and obligations created" by these statutes. Zukle v. Regents of
University of California, 166 F.3d 1041, 1045, n.11 (9th Cir. 1999). See 42 U.S.C. § 12133 ("The
remedies, procedures, and rights set forth in [§ 504] shall be the remedies, procedures, and rights
this subchapter provides to any person alleging discrimination in violation of section 12132 of this
title.").
80. 42 U.S.C. § 12210 : US Code - Section 12210: Illegal use of drugs
(a) In general
For purposes of this chapter, the term "individual with a
disability" does not include an individual who is currently
engaging in the illegal use of drugs, when the covered entity acts
on the basis of such use.
(b) Rules of construction
Nothing in subsection (a) of this section shall be construed to exclude as an individual with a
disability an individual who -
(3) is erroneously regarded as engaging in such use, but is not engaging in such use;
(d) "Illegal use of drugs" defined
(1) In general
The term "illegal use of drugs" means the use of drugs, the
possession or distribution of which is unlawful under the
Controlled Substances Act [21 U.S.C. 801 et seq.]. Such term does
not include the use of a drug taken under supervision by a
licensed health care professional,or other uses authorized by
the Controlled Substances Act or other provisions of Federal law..
81.In Moore, for example, the defendant doctor "acted as a large-scale `pusher' not as a
physician," and admitted that he did not observe generally accepted medical practices. 423
U.S. at 126, 143.
82. In Rosenberg, the evidence established that "[w]hen a doctor acts as Dr. Rosenberg did in this
case, he can appropriately be called a trafficker in drugs." 515 F.2d at 196. The Rosenberg
court was careful to note, however, that the phrase "in the course of professional medical
practice" as used in the CSA "clearly means that a doctor is not exempt from the statute when
he takes actions that he does not in good faith believe are for legitimate medical purposes,"
plainly a subjective standard. 515 F.2d at 197 (emphasis added).
83. Johnston v. Barnhart, 378 F. Supp. 2d 274, 281-82 (W.D.N.Y. 2005); see Buchholz v.
Barnhart, 56 Fed. App'x 773, 776 (9th Cir. 2003) ("it is unclear how, if at all, Buchholz's medical
marijuana use affects his credibility"); Sessions v. Astrue, Dist. Court, WD New York 2010
(citing Aponte v.Sec'y of Dep't of Health & Humans Servs., 728 F.2d 588, 591 (2d Cir. 1984)
( Assessing the credibility of the claimant is a function of the Commissioner and not the reviewing
court.) .; Lawson v. Astrue, No.06-4136-RDR, 2007 U.S. Dist. LEXIS 96408, 2007 WL 3026648,
*8 (D. Kan. Sept. 27, 2007) ("The relevance of the ALJ's reference to plaintiff's marijuana
use is not well-explained.
If the ALJ believes that the marijuana use contributes to plaintiff's depression, then he should
have referred to some evidence in the record to support that belief. If he believes that people
who smoke marijuana do not make credible claims of disability, then he should have said so
and supported that position.").
84. The determination of what constitutes a legitimate medical practice or purpose traditionally has
been left to the individual states. State statutes, state medical boards, and state regulations control
the practice of medicine.The CSA was never intended, and the USDOJ and DEA were never
authorized, to establish a national medical practice or act as a national medical board.To allow an
attorney general-an appointed executive whose tenure depends entirely on whatever admin-
istration occupies the White House—to determine the legitimacy of a particular medical practice
without a specific congressional grant ofsuch authority would be unprecedented and extraordinary.
As stated, the practice of medicine is based on state standards, recognizing, of course, national
enactments that,within constitutional limits, specifically and clearly define what is lawful and what
is not.. OREGON v. ASHCROFT 192 F.Supp.2d 1077 (2002).
85. Gonzales v. Oregon, 547 US (2008) In deciding whether the CSA can be read as prohibiting
physician-assisted suicide, we look to the statute's text and design. The statute and our case law
amply support the conclusion that Congress regulates medical practice insofar as it bars doctors
from using their prescription writing powers as a means to engage in illicit drug dealing and
trafficking as conventionally understood.Beyond this, however, the statute manifests no intent to
regulate the practice of medicine generally. The silence is understandable given the structure and
limitations of federalism, which allow the States " 'great latitude under their police powers to leg-
islate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.'" Medtronic,
Inc. v. Lohr, 518 U.S. 470, 475 (1996) (quoting Metropolitan Life Ins.Co. v.Massachusetts,471
U. S. 724, 756 (1985)).
Even though regulation of health and safety is "primarily, and historically, a matter of local
concern," Hillsborough County v. Automated Medical Laboratories, Inc.,471 U. S. 707, 719(1985).
In connection to the CSA, however, the Supreme Court finds only one area in which Congress set
general, uniform standards of medical practice. Title I of the Comprehensive Drug Abuse Preven-
tion and Control Act of 1970, of which the CSA was Title II, provides that:
"[The Secretary], after consultation with the Attorney General and
with national organizations representative of persons with knowledge
and experience in the treatment of narcotic addicts, shall determine
the appropriate methods of professional practice in the medical treatment
of the narcotic addiction of various classes of narcotic addicts, and
shall report thereon from time to time to the Congress." §4, 84 Stat.
1241, codified at 42 U. S. C. §290bb—2a.
This provision strengthens the understanding ofthe CSA as a statute combating recreational
drug abuse, and also indicates that when Congress wants to regulate medical practice in the
given scheme, it does so by explicit language in the statute.The Attorney General has rule-
making power to fulfill his duties under the CSA. The specific respects in which he is authorized to
make rules, however, instruct the court that he is not authorized to make a rule declaring illeg-
itimate a medical standard for care and treatment of patients that is specifically authorized under
state law.
86. U.S. Equal Emp’t Opportunity Comm’n, Section 902 Definition of the Term Disability, at §
902.6 (last modified No. 21, 2009), available at Section 902 Definition of the Term Disability
(last visited Apr. 27, 2012).-
Section 902 Definition of the Term Disability
The Compliance Manual Section onthe Definition of the Term "Disability" has been removed from
this website, since the analysis in it has been superseded by the ADA Amendments Act of 2008
(ADAAA). The ADAAA makes it easier for individuals challenging employment actions
under Title I of the ADA to establish that they meet thedefinition of "disability" and are thus
protected by the law.
For more information on the ADAAA, go to Information about the Americans with Disabilities Act Amendments Act (ADAAA)
SEC. 6. RULES OF CONSTRUCTION.
(a) Title V of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 et seq.) is amended-
(1) by adding at the end of section 501 the following:
(e) BENEFITS UNDER STATE WORKER’S COMPENSATION LAWS.—Nothing in this Act
alters the standards for determining eligibility for benefits under State worker’s compensation laws
or under State and Federal disability benefit programs.
This page was last modified on July 25, 2012.
87. The legislative history of the ADA indicates that Congress intended judicial interpretation ofthe
Rehabilitation Act be incorporated by reference when interpreting the ADA. See Laura F.
Rothstein Disabilities and the Law § 3.12 (1992).
88. RCW 69.50.308 Prescriptions.
(e) A valid prescription or lawful order of a practitioner, in order to be effective in legalizing
the possession of controlled substances, mustbe issued in good faith for a legitimate medical
purpose by one authorized to prescribe the use of such controlled substance. An order purp-
orting to be a prescription not in the course of professional treatment is not a valid pre-
scription or lawful order of a practitioner within the meaning and intent of this chapter;
and the person who knows or should know that the person is filling such an order, as well as the
person issuing it, can be charged with a violation of this chapter.
89. Rcw 69.51A.010
(7) "Valid documentation" means:
(a) A statement signed and dated by a qualifying patient's health care professional written
on tamper resistant paper, which states that, in the health care professional's professional
opinion, the patient may benefit from the medical use of marijuana; and
90. It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
STATE MEDICAL CANNABIS LAW
91. In November, 1998, Washington voters approved the Medical Use of Marijuana Act
('''MUMA''). (I-692 [1998]; Wa.long-term health &safety statute chapter 69.51A.) The
MUMA in-part provided that the state should implement a safe and affordable distribution
system that provides for all seriously-ill Washitonians in need of medical marijuana..
92. In 2007, the state governor approved the designated provider section and added conditions
for which cannabis could be used.
93. "The law should not be construed to do indirectly what it cannot do directly". Gelpcke v. City
of Dubuque,11 68 U.S. (l Wall) 175, 192, 17 L. Ed. 520 (1864) ("It is almost unnecessary to say,
that what the source")Governor Gregiore addresses the stream and its source in her veto letter as
shown below:
I fully support the purpose of Initiative 692, and in 2007, I signed legislation that expanded the
ability of a patient to receive assistance from a designated provider in the medical useof marijuana,
and added conditions and diseases for which medical marijuana could be used. Today, I have
signed sections of Engrossed Second Substitute Senate Bill 5073 that retain the provisions of
Initiative 692 and provide additional state law protections.
94. The definitions of medical cannabis qualifying patient, designated provider and qualifying
patients collective gardens are provided in state statutory and/or decisional law.
95.. The legislature,by it’s enactment of Chapter 69.51A.025 Construction of Chapter-Compliance
with RCW 69.51A.040 clearly provides: Nothing in this Chapter or in the rules adopted to impl-
ement it precludes a qualifying patient or designated provider from engaging in the private, un-
licensed, non commercial production, possession, transportation, delivery, or administration of can-
nabis for medical use as authorized under RCW 69.51A.040.
[2011 c 181 $ 413]
96. "Noncommercial" is not defined by the MUCA. Its ordinary meaning is "not commercial,"as in
"not used in commerce," "having no commercial importance," or "not commercially motivated."
Webster's Third New International Dictionary 1536 (1993).
97. The legislature, by it’s enactment of Chapter 69.51A.040 Compliance with chapter-Qualifying
patients and designated providers not subject to penalties-law enforcement not subject to liability
provides in relevant part:
The medical use of cannabis in accordance with the terms of this chapter does not constitute a
crime and a qualifying patient or designated provider in compliance with the terms and
conditions of this chapter may not be arrested, prosecuted, or subjected to other criminal
sanctions or civil consequences, for possession, manufacture, or delivery of, or for possess-
ion with intent to manufacture or deliver, cannabis under state law, or have real or personal
property seized or forfeited for possession, manufacture, or delivery of, or for possession with
intent to manufacture or deliver, cannabis under state law,and investigating peace officers and law
enforcement agencies may not be held civilly liable for failure to seize cannabis plants in this
circumstance if:
(1) (a) The qualifying patient or designated provider possesses no more than fifteen plants and;
( i ) No more than twenty four ounces of usable cannabis;
(ii) No more cannabis product than what could reasonably be produced with no more than twenty
four ounces of usable cannabis; or
(iii) A combination of usable cannabis and cannabis product that does not exceed a combined total
representing possession and processing of no more than twenty four
ounces of usable cannabis.
(b) If a person is both a qualifying patient and a designated provider for another qualifying patient,
the person may possess no more than twice the amounts described in (a) of this subsection,
whether the plants, usable cannabis, and cannabis product are possessed individually or in combin-
ation between the qualifying patient and his or her designated provider.
(2) The qualifying patient or designated provider presents his or her proof of registration with the
department of health, to any peace officer who questions the patient or provider regarding his or
her medical use of cannabis;
(3) The qualifying patient or designated provider keeps a copy of his or her proof of registration
with the registry established in *section 901 of this act and the qualifying patient or designated pro-
vider's contact information posted prominently next to any cannabis plants, cannabis products, or
useable cannabis located at his or her residence..
98. The legislature, by it’s enactment of RCW 69.50.302 Registration requirements clearly pro-
vides in relevant part: :
(c ) The following persons need not register and may lawfully possess controlled sub-
stances under this chapter.
(3) An ultimate user or a person in possession of any controlled substance pursuant to a law-
ful order of a practitioner or in lawful possession of substance included in schedule V
[2011 c 336 $ 839; 1993 c 187 $ 16; 1989 1st ex.s c 9 $ 432; 1971 ex.s. c 308 $ 69.50.302]
99. The legislature, by it’s enactment of Chapter 9A.36.021 in relevant part:
was to protect the citizens within it’s boarders from serious bodily harm which could amount to
serious physical or psychological violations or even death. And provides fully: to punish those
violators of a criminal violent act with severe punishment to garnish a violation as a class B felony.
100. The legislature, by it’s enactment of Chapter 69.51A.085 is a section of the Washington State
medical cannabis act which enables qualified patients to create and participate in collective
gardens for the purpose of producing, processing, transporting, and delivering cannabis
for medical use, in relevant part:
RCW 69.51A.085 Collective Gardens.
(1) Qualifying patients may create and participate in collective gardens for the purpose of
producing, processing, transporting, and delivering cannabis for medical use subject to
the following conditions:
(d) A copy of each qualifying patient's valid documentation or proof ofregistration 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 useable cannabis from the collective garden is delivered to anyone other than one ofthe
qualifying patients participating in the collective garden.
(2) For purposes of this section, the creation of a "collective garden" means qualifying
patients "sharing responsibility for acquiring and supplying the resources required" to
produce and process cannabis for medical use such as, for example, a location for a collec-
tive garden; equipment, supplies, and labor necessary 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 section is not
entitled to the protections of this chapter.
[2011 c 181 § 403.]
Notes: *Reviser's note: The section creating a registry, 2011 c 181 § 901, was vetoed by the
governor.
101. The defendant MUNICIPALITY relies entirely on Section 1102 of ESSSB 5073, now cod-
ified in RCW 69.51A.l40, which speaks to the authority of cities to regulate the production, pro-
cessing, or dispensing of cannabis or cannabis products , provides:Cities and towns may adopt and
enforce any of the following pertaining to the production, processing, or dispensing of cannabis or
cannabis products within their jurisdiction: Zoning requirements, business licensing requirements,
health and safety requirements, and business taxes. Nothing in this act is intended to limit the auth-
ority ofcities and towns to impose zoning requirements orother conditions upon licensed dispensers,
so long as such requirements do not preclude the possibility of siting licensed dispensers within the
jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt
zoning to accommodate licensed dispensers.
102. In the Governor's veto letter, the Governor vetoed the state licensed dispensaries sections
supporting section 1102, and either made section 1102 of ESSSB 5073 an orphan section without
meaning as shown below: Section 1102 sets forth local governments' authority pertaining to the
production, processing or dispensing of cannabis or cannabis products within their jurisdictions.The
provisions in Section 1102 that local governments' zoning requirements cannot "preclude the poss-
ibility of siting licensed dispensers within the jurisdiction" are without meaning in light of the vetoes
of sections providing for such licensed dispensers. 1t is with this understanding that I approve
Section 1102.
103. Or in the alternative, section 1102 was left it in to allow nonprofit cannabis cooperatives
organizations to produce, process and dispense cannabis if the legislature chose to act as shown
below:
I have been open,and remain open, to legislation to exempt qualifying patients and their designated
providers from state criminal penalties when they join in nonprofit cooperative organizations to
share responsibility for producing, processing and dispensing cannabis for medical use.
Such exemption from state criminal penalties should be conditioned on compliance with
local government location and health and safety specifications.
104. It is crystal clear the legislature did not intend to provide local control over qualifying patients
collective gardens,( see SUBSTITUTE SENATE BILL 6265
billdocs/2011-12/Pdf/Bills/Senate%20Bills/6265-S.pdf , along with the video of the debate
Home - TVW … 2012010118 ) and it is also clear
that Governor Gregoire also did not intend to create local control over qualifying patients in any
collective gardens, except to allow them.
105. Any definition of medical cannabis qualifying patient, designated provider and/or collective
gardens, dispensaries, and/or cultivation sites included in ordinances, laws, rules, codes and/or
regulations adopted by Defendant MUNICIPALITY that are different than the state law
definitions of those thus are superseded by such state law definitions and/or decisional law.
.
106. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
APPLICABLE STATE DISABILITY PROTECTIONS
107. Plaintiff PATIENT suffer' from a physical and/or mental condition ("DISABILITY") that
affects a major life activity within the meaning of the WLAD,WHPA and chapter 69.51A.010.
108. Plaintiff PATIENT is an individual with disabilities as defined in Social Security Act, ADA,
Rehabilitation Act, ., which is identical to (SSA),Wa. Health and Safety statute chapter 69.51A
RCW et seq,WLAD, WHPA a combination of each of the aforementioned statutes, or all
of them.
109. The WLAD,WHPA, (SSA)~ protect against "'violation of the right of an individual under"
the ADA.
110. The ADA provides, at 42 U.S.C. § 12201(b), that "[n]othing in this Act shall be construed
to invalidate or limit the remedies, rights, and procedures of ... any State or political subdivision
of any State or jurisdiction that provides greater or equal protection for the rights of individuals
with disabilities than are afforded by this Act."
111.The ADA requires only accommodations that are reasonable."[T]he accommodation required
by the law is limited, not just expanded, by the word `reasonable.'" McGary, 386 F.3d at 1270.
Where a law is intended to protect the community,an accommodation that threatens the health and
safety of the community may be unreasonable.Id.Courts generally will not second-guess the public
health and safety decisions of state legislatures acting within their traditional police powers, but the
ADA and accompanying regulations require courts to ensure that the decision reached by the state
authority is appropriate under the law and in light of proposed alternatives.
Crowder, 81 F.3d at 1485.
112. Although the ADA provides a floor of disability protection, the state Legislature has
declared that Washington "law has always, even prior to passage of the [ADA], afforded addi-
tional protections."
113. By its plain language, WLAD, WHPA and chapter(s) 69.51A, 4.96 RCW protects against
violations of rights of the disabled under Title II of the ADA that protect against discriminatory
state or local laws, rules, policies, and/or procedures.
114. The WLAD, provides that, for purpose term ~~~disability' means any mental or physical
disability as defined in 49.60.040(7).
115. Use of naturally derived THC dronabinol for medical purposes in compliance with the
MUCA is not "current unlawful use" of drugs under Washington or Federal law.
116. The DISABILITY for which the Plaintiff PATIENT qualify for protection under WLAD
AND WHPA is not a disorder resulting from the "current unlawful use of controlled substances
or other drugs."
117. Plaintiff PATIENT' respective use of medical cannabis is provided for under and conduc-
ted in compliance with the MUCA and OTHER FEDERAL LAWS..
118. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
APPLICABLE FEDERAL DISABILITY PROTECTIONS
119. F or purposes of those parts of this Complaint that allege violation of and that seek relief
(including but not limited to damages) under federal disability law, the Plaintiff PATIENT suffers
from, have a record of,or is regarded as having a physical or mental impainnent that substantially
limits at least one (1) major life activity including, but not limited to, caring for oneself, perfor-
ming manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and/or
working. If such physical or mental impairment suffered by the Plaintiff PATIENT is episodic or
in remission, the impairment limits a major life activity when active.
120. For purposes of those parts of this Complaint that allege violation of and seek relief
(including but not limited to damages) under federal disability law~ Plaintiff PATIENT has a
disability within the meaning of the SSA, ADA, SEC. 504, 42 U.S.C. § 12102(2)(A),
29 U.S.C. § 794,49 C.F.R. § 37.3, 28 C.F.R. § 35.104, a combination of each of the
aforementioned laws/regulations, or all of them.
121. For purposes of those parts of this Complaint that allege violation of and seek relief
(including but not limited to damages) under federal disability law, Plaintiff PATIENT remains
qualified for protection under the 42 U.S.C. § 12210(d)(1) .
122. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
LOCAL STATUTES AND REGULATIONS
123. MUNICIPALITY has enacted, and is enforcing Vancouver ordinace (M-3988) and
attempting to apply it to Municipal Code (VMC) TITLE 20, its local MC qualifying patient
residential premises DE FACTO ban upon specific disabled persons. In addition to attempting
to change VMC title 20. MUNICIPALITY has enacted laws (contrary to known disability
laws,) including but not limited to ordinance M-3988, that prohibit, restrict, and/or regulate
medical cannabis qualifying patients collectives are referred to as the LOCAL ORDINANCE in
this Complaint. The LOCAL ORDINANCE constitutes a law, rule, policy, and/or procedure
for purposes of WLAD,WHPA, SEC. 11135, Title II of the ADA, SEC. 504, a combination
of each of the aforementioned statutes, or all of them.
124. Defendant MUNICIPALITY's LOCAL ORDINANCE: A) prohibits all
medical cannabis qualifying patient collective gardens at those DISABLED PERSONS
residential premises as delineated in state law; B) includes a policy or policies that effectively
prohibits all disabled persons medical cannabis qualifying patient from accessing collectives at
any private,unlicensed, non commercial residential premises as are defined in state law; and C)
facially discriminates against Plaintiff PATIENT and/or their COLLECTIVE ASSOCIATION
in contravention of MUCA, WLAD, WHPA, SEC. 11135, Title II of the ADA, SEC. 504, a
combination of each of the aforementioned statutes, or all of them.
125. “It is almost unnecessary to say, that what the legislature cannot do directly, it cannot do
indirectly.The stream can mount no higher than its source.”Gelpcke v. City of Dubuque, 68 U.S. 1
Wall. 175 175 (1863)
126. Defendant MUNICIPALITY has and continues to violate federal and/or state disability
civil rights laws that protect the Plaintiff PATIENTS including WLAD, WHPA, SEC. 11135,
Title II of the ADA, SEC. 504, a combination of each of the aforementioned statutes, or all of
them thereby causing Plaintiff PATIENT to suffer damages including but not limited to:
A) physical injuries resulting from Plaintiff PATIENTS' continuous and/or periodic inability to
access physician recommended medication; B) mental and/or emotional injuries resulting from
the enforcement of the LOCAL ORDINANCE; C) financial damages resulting from losses
sustained by Plaintiff lacking any access to private housing because of disability and not
COLLECTIVES which have only 45 plants, the same amount as 3 qualifying patients in one
dwelling; and/or D) other physicial, mental, emotional, and/or financia1 damages to be proven at
time of trial.
127. Through either 1) facial; and/or 2) disparate impact discrimination suffered by Plaintiff
PATIENT and caused by provisions of the LOCAL ORDINANCE an/or proposal of new
LOCAL CODE amendment, Defendant has violated and continues to violate WLAD, WHPA,
MUCA,SEC. 11135, Title II ofthe ADA, SEC. 504, a combination of each of the
aforementioned statutes., or all of them.
128. Defendant MUNICIPALITY's ongoing enforcement of the discriminatory LOCAL
ORDINANCE continues to aggrieve Plaintiff. Accordingly, the injunctive
relief provisions in Wa. Chapter 7.40 RCW apply in this case.
129.It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
COLLECTIVE ASSOCIATION LAW
130.At Section 403 codified at chapter 69.51A.085, the GUILDLINES provide that, '~under
Washington law, medical cannabis patients ONLY may 'associate within the State of
Washington in order collectively for the purpose of producing, processing, transporting,
and delivering cannabis for medical use for medical purposes.' (Chapter 69.51A.085.)"
131.Medical cannabis qualifying patient COLLECTIVE gardens is a group of medical cannabis
patients who associate together for purposes of mitigating their respective patient classmembers'
disabilities and serious illnesses through collective producing, processing, transporting, and
delivering of medical cannabis. Qualifying patients associate together COLLECTIVE' are
established and operates under Chapter 69.51A.085 subject to specific conditions. Not
Chapter 69.51A.140 specific Counties, cities, towns -authority to adopt and enforce pertaining to
the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction:
Zoning requirements,business licensing requirements,health and safety requirements,and business
taxes requirements conditions.
132..Pursuant to the GUIDELINES, qualifying patients associate together COLLECTIVE' are
shared responsability by its patient associate together class-members whom have their valid
documentation at the residencal premises, including Plaintiff PATIENT. See chapter 69.51A.
085 (2) definition.
133.Each and every action and/or inaction complained of herein that has been taken against,
injured, and/or caused damage to plaintiff preclusion of COLLECTIVE association access thus
has been taken against, injured, and/or caused damage to Plaintiff PATIENT.
134. Section 35.130(g) of Title 28 of the Code of Fed. Regs. is part of the ADA
implementing regulations and explicitly prohibits local governments from discriminating
against based on association.
135. Through the LOCAL ORDINANCE, and/or new code amendment proposal Defendant
has violated Plaintiff PATIENT' right to associate as provided under the law.
136.Defendant, through the LOCAL ORDINANCE, has violated 28 C.F .R. § 35.130(g),
WLAD, WHPA, , SEC. 11135, Title II of the ADA, SEC. 504, a combination of each of
the aforementioned statutes, or all of them, by restricting and/or prohibiting the Plaintiff
PATIENT from associating in any private dwelling with other medical cannabis patients for
purposes of mitigating the symptoms and conditions related to Plaintiff PATIENTS' respective
illnesses, disabilities, and/or permanent injuries. Legislatures may not, under the guise of the police
power, impose restrictions that are unnecessary and unreasonable upon the use of private property
or the pursuit of useful activities. Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S.
116, 73 L.Ed. 210, 49 S.Ct. 50, 86 A.L.R. 654 (quoted with approval in Hauser v. Arness, 44 Wn.
(2d) 358, 267 P. (2d) 691).
Zoning measures must find their justification in the police power exerted in the interest of the public.
Euclid v. Ambler Realty Co., supra, 387. "The governmental power to interfere by zoning regulations
with the general rights of the land owner by restricting the character of his use, is not unlimited and,
other questions aside, such restriction cannot be imposed if it doesnot bear a substantial relation to
the public health, safety, morals, or general welfare." Nectow v. Cambridge, supra, p. 188
137. Defendant, through the LOCAL ORDINANCE, has violated MUCA and GUIDELINES
by restricting and/or prohibiting the Plaintiff PATIENT from associating with other medical cann-
abis patients for purposes of mitigating the symptoms and conditions related to Plaintiff
PATIENTS' respective illnesses, disabilities, and/or permanent injuries.
138.The defendant violates the right of association of like minded and is fundamentally eliminated
NAACP v. Alabama, 357 U. S. 449; Effective advocacy of both public and private points of view,
particularly controversial ones, is undeniably enhanced by group association, as the U.S. Supreme
Court hasmore than once recognized by remarking upon the close nexus between the freedoms of
speech and assembly. De Jonge v. Oregon, 299 U. S. 353, 364; Thomas v. Collins, 323 U. S. 516,
530. It is beyond debate that freedom to engage in association for the advancement of beliefs and
ideas is an inseparable aspect ofthe "liberty" assured by the Due Process Clause of the Fourteenth
Amendment, which embraces freedom of speech. See Gitlow v. New York, 268 U. S. 652, 666;
Palko v. Connecticut, 302 U. S. 319, 324; Cantwell v. Connecticut, 310 U. S. 296, 303; Staub v.
City of Baxley, 355 U. S. 313, 321. Of course, it is immaterial whether the beliefs sought to be
advanced by association pertain to political, economic, religious or cultural matters, and local
government action in the name of the federal government which may have the effect of curtailing
the freedom to associate is subject to the closest scrutiny..
138. The courts have consistently held that medical cannabis laws are a medical practice issue
since it does not involve a prescription and is premised on the first amendment rights of patient
and physicians communications for physicians ability to recommend their cannabis use.
(See,Conant v. Walters, 309 F.3d 629, 648 (9th Cir. 2002).
139.It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
ONGOING DISCRIMINATION
140. Each and every action complained of by Plaintiff in this Complaint are part of an ongoing
pattern of discriminatory actions Defendant has taken under either the LOCAL ORDINANCE,
and/or new code amendment proposal, its enforcement, and/or other of its discriminatory laws~
rules, policies, and/or procedures.
141.It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
VIOLATION OF ANTI-DISCRIMINATION LAWS
142.In 2011, during a public meeting, MUNICIPALITY enacted (M-3988) and thereafter the
other parts of LOCAL ORDINANCE,and/or code amendment proposal(s) to its zoning and/or
land use for private residences.
143. Plaintiff is informed and believe and based upon such information and belief allege that
before and after enacting the LOCAL ORDINANCE, officials, officers, and/or employees of
MUNICIPALITY publically stated that the LOCAL ORDINANCE was necessary because,
without the law, medical cannabis collectives and/or dispensaries would proliferate throughout
MUNICIPALITY. The aforementioned public statements are evidence of per se discrimination
under WLAD,WHPA, SEC. 11135, Title II of the ADA, SEC. 504, a combination of each of
the aforementioned statutes, or all of them. (Reg'l Econ. Cmty. Action Program, Inc. v. City of
Middletown (2d Cir. 2002) 294 F.3d 35, 45-46 [RECAP]; Horizon House Dev. Servs. Inc. v.
Twp. ofUpper Southampton (E.n. Pa. 1992) 804 F. Supp. 683, 690 [Horizon]).
144. Plaintiff is informed and believe and based upon such information and belief allege that
before and after enacting the LOCAL ORDINANCE, officials, officers, and/or employees of
MUNICIPALITY publically stated that the LOCAL ORDINANCE was necessary because
medical cannabis collectives and patients cause crime. The aforementioned pubJic statements
are evidence ofper se discrimination under WLAD,WHPA,SEC. 11135, Title II of the ADA,
SEC. 504, a combination of each of the aforementioned statutes,or all of them. (RECAP, 294
F.3d at 45-46; Horizon, 804 F. Supp. at 690).
145. Plaintiff is informed and believe and based upon such information and
belief allege that before and after enacting the LOCAL ORDINANCE, elected officials
officers, and/or employees of MUNICIPALITY publically stated that the LOCAL
ORDINANCE and/or new code amendment proposal was necessary because their constituents
did not want medical cannabis collectives "in their back yard." The aforementioned public
statements of the elected officials are evidence of per se discrimination under WLAD,WHPA,
SEC. 11135, Title II of the ADA, SEC. 504, a combination ofeach of the aforementioned
statutes, or all of them. (RECAP, 294 F.3d at 45-46; Horizon1 804 F. Supp. at 690).
146. Plaintiff is informed and believe and based upon such information and belief allege that
before enacting the LOCAL ORDINANCE, elected officials, officers, and/or employees of
MUNICIPALITY publically stated that the LOCAL ORDINANCE and/or new code
amendment proposal was necessary because their constituents did not want medical cannabis
patients near them or "in their back yard." The aforementioned public statements of the elected
officials are evidence of per se discrimination under WLAD,WHPA, SEC. 11135, Title II of the
ADA~ SEC. 504, a combination of each of the aforementioned statutes~ or all of them.
(RECAP, 294 F.3d at 45-46; Horizon, 804 F. Supp. at 690).
147. Plaintiff is informed and believe and based upon such information and belief allege that
before enacting the LOCAL ORDINANCE, officials, officers, and/or employees of MUNIC-
IPALITY publically stated that the LOCAL ORDINANCE was necessary because medical
cannabis patients are just people who want to get "high" rather than patients with disabilities,
illnesses, or permanent injuries. The aforementioned public statements are evidence of per se
discrimination under WLAD,WHPA~ SEC. 11135, Title II of the ADA, SEC. 504, a combin-
ation of each of the aforementioned statutes, or all of them. (RECAP, 294 F.3d at 45-46;
Horizon, 804 F. Supp. at 690).
148. Plaintiff is informed and believe and based upon such information and belief allege that
before enacting the LOCAL ORDINANCE, officials, officers, and/or employees of MUNIC-
IPALITY publically stated that the LOCAL ORDINANCE was necessary because medical
cannabis patients are generally criminals rather than patients with disabilities, illnesses, or
permanent injuries. The aforementioned public statements are evidence of per se discrimination
under WLAD,WHPA,SEC. 11135, Title II of the ADA, SEC. 504, a combination of each of
the aforementioned statutes, or all ofthem. (RECAP, 294 F.3d at 45-46; Horizon, 804 F. Supp.
at 690).
149. MUNTCIPALITY has ATTEMPTED to adopt a "zoning" code that defines "uses" of
property ("LAND USES") and that regulates LAND USES based on zone and activity at
suspect class of disabled citizens dwellings and/or their association at such dwellings.
150. LAND USES are not comparable to medical cannabis qualifying patient collectives
association but, are for non profit org. as the governor is open to.non profit cannabis org.
include, but are not limited to, pharmacies, methadone clinics, medical clinics, medical
treatment programs, and organic nutritional providers ("COMPARABLE USES )
151. The COMPARABLE USES are not subject to the LOCAL ORDINANCE.
152. The COMPARABLE USES are not prohibited, regulated, or rigidly controlled the same
way that medical cannabis disabled citizens residence association are under the LOCAL
ORDINANCE and/or code amendment proposal.
153. Defendant MUNICIPALITY's total prohibition of all medical cannabis disabled qualifying
patient residentail premises collectives in light of its less rigid regulation of COMPARABLE
USES is evidence of per se discrimination under WLAD,WHPA, SEC. 11135, Title II of the
ADA, SEC. 504, a combination of each of the aforementioned statutes, or all ofthem.(Bay Area
Addiction Research and Treatment Inc.v. City of Antioch (9th Cir. 1999) 179 F.3d 725 [Bay
Area]; New Directions Treatment Servs. v. City of Reading (3d Cir. 2007) 490 F.3d 293, 304
-05 [New Directions D.]
154. After it enacted LOCAL ORDINANCE in combination with the county of clark (as noted
by city legal cousel Ted Gathe), Defendant began enforcing the law by issuing flyovers by law
enforcement to, dispatching police and/or other law enforcement officers to~ and/or detaining,
arresting, or harassing patients of dwellings under the [interlocal contract drug fund]. Including
plaintiff patient.
155.Defendant MUNICIPALITY's enforcement of LOCAL ORDINANCE has caused the
interim,periodic, and/or continuous continued prohibition of specific suspect class of disabled
citizens from accessing any residential premises in the city which has any association called and/
or defined QUALIFYING PATIENTS COLLECTIVE GARDENS conduct and/or activity.
156.Plaintiffs have notified Defendant, through its employees and/or elected officers, that the
LOCAL ORDINANCE and/or new code amendment proposal and enforcement of it violate
WLAD,WHPA,SEC. 11135, Title II of the ADA~ SEC. 504, a combination of each of the
aforementioned statutes, or all of them and that such enforcement causes Plaintiffs to suffer
physical, mental, and/or financial injuries.
157. Plaintiffs have asked Defendant, through its employees and/or elected officers, to cease
enforcement of and to repeal/revise LOCAL ORDINANCE.
158. Despite the aforementioned requests to cease enforcement of LOCAL ORDINANCE
made by Planintiffs to Defendant, Defendant continues to enforce the ordinance using the
methods, mechanisms, and personnel set forth previously in this Complaint.
159. MUNICIPALITY's enactment and enforcement of the LOCAL ORDINANCE as well as
its refusal to stop enforcement, suspend, or repeal the ordinance, is evidence of per se discrimi-
nation under either the WLAD,WHPA, SEC. 504, Title II of the ADA, or all of them. (Bay
Area, 179 F.3d 734-735; New Directions, 490 F.3d 304-05).
160. It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
DENIAL OF USE OF AND ACCESS TO PUBLIC SERVICES
161. The LOCAL ORDINANCE, its enforcement~ and the actions and/or inactions of Defen-
dant MUNICIPALITY as set forth in this Complaint have prevented, hindered,and/or interfered
with Plaintiff PATIENT' ability to access and obtain medical cannabis recommended by Plaintiff
PATIENTS' licensed physician and used by the Patient PLAlNTIFF to mitigate, control, cure,
and/or alleviate symtoms associated with or caused by their respective DISABILITIES.
164. When Plaintiff PATIENT is unable to access and obtain medical cannabis to mitigage,con-
trol, cure,and/or alleviate symtoms associated with DISABILITY,Patient PLAINTIFF movem-
ents, freedom, and functions are severely limited in a manner that prevents meaningful access to
and use of public services including but not limited to roads, sidewalks, libraries, and health care
services.
162. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
THREAT OF IMMEDIATE HARM
163. The Plaintiff PATIENT will suffer immediate and irreparable continuing harm if access to
housing are left shut-down and/or precluded at anyone's residencal PREMISES in that he will
continue to lose access to his day-to-day life medication,he will continually be denied association
with one another at a residence of any COLLECTIVE GARDENS, which provides some type
of health care, counseling, activities, and patient support services, and he will lose immediate
access to public services, including vital health care services.
164. It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
FIRST CAUSE OF ACTION
(Injunctive Relief Wa. Chapter 7.40 RCW)
165. Plaintiffs re-allege and incorporate by reference all preceding and the remainder of the
allegations set forth in this Complaint as if fully set forth herein.
166. As set forth in this Complaint, the Plaintiffs continue to be aggrieved and harmed by the
actions and inactions of Defendant MUNICIPALITY because MUNICIPALITY continues to
enforce its discriminatory LOCAL ORDINANCE.
167. The MUCA statute requires residential premises associate collective' operate in full
compliance with state law.
168. The harm suffered by the Plaintiffs includes loss of access to medication for individuals
suffering from severe physical disabilities and serious/terminal illnesses. The harm the City will
suffer is deminumis should injunctive relief be granted. Accordingly, the balance of hardships
weighs heavily in favor of Plaintiff.
169. As a result of MUNICIPALITY's continuing discrimination that is harming the Plaintiff and
violates the WLAD,WHPA, Plaintiffs pray for a preliminary injunction pending trial and for a
permanent injunction thereafter under Chapter 7.40 RCW.
170. It is the duty of the court "to protect the public from the activity of those who, because of
lack of professional skills, may cause injury whether they are members of the bar or persons
never qualified for or admitted to the bar."
SECOND CAUSE OF ACTION
(Injunctive Relief Wa. 4.96 RCW )
171. In Washington, only the state is sovereign --cities and counties exist only at
the state's sufferance.Here, MUNICIPALITY is a subdivision of the State of
Washington.
172. Defendant MUNICIPALITY is a subdivision of the state and "not the
federal government.just as in ,., (Qualified Patients Association v. City of Anaheim (2010) 187
Ca1.AppAth 734, 754 [Qualified Patients].)
173. Under the Tenth Amendment, ''the federal government may not compel
States to implement, by legislation or executive action, federal regulatory programs."
(Printz v. United States (1997) 521 U.S. 898, 925; Qualified Patients~ 187 CaLApp.4th at
754, 762.) .
174. Cannabis is alleged to be prohibited under federal law. (21 U.S.C. §§ 801, et seq.)
Washington recognizes that cannabis has medical value and thus provides for its use and
possession as well as provides the collective cannabis cultivation, transportation, and
delivery system set forth in the MUCA. (Wa. long-term health statutes 69.51A et. seq..)
175. In Qualified Patients, the appellate court held the City of Anaheim could
not base its ban of dispensaries solely on federal law.
176. In Qualified Patients, the appellate court held the City of Anaheim, as a
'''creature'' of the state, could not enforce federal law that is inapposite to state law.
177. Plaintiff is informed and believe and based upon such information and
belief allege that's MUNICIPALITY has expended taxpayer money to conduct
investigations of the medical cannabis qualifying patients residential premises within and
notwithin its border under the state/federal drug fund interlocal agreement(s) and,
following such investigations, determined the qualifying patients residential premises collectives
cannot be prohibited/precluded through MUNICIPALITY's local law enforcement agencies
because the residential premises collectives are operating in accordance with state law.
178. Plaintiff is informed and believe and based upon such information and
belief allege that MUNICIPALITY has expended taxpayer money in unsuccessful
attempts to gain any vote of the planning commission recommending that patient collectives
in its border be subjected through civil lawsuits including, but not limited to, nuissance abatement
actions.
179. Plaintiff is informed and believe and based upon such information and
belief allege that MUNICIPALITY, despite it being a subdivision of the State of
Washington and not part of the federal government, has expended taxpayer money to
conduct investigations of residential premises within and outside its border solely for
purposes of providing the results of such investigations to drug task force i.e. the federal
government.
180. The expenditure of taxpayer money by MUNICIPALITY, a subdivision of
the state, to thwart the MUMA (I-692), a voter-passed initiative, which calls upon
the state to implement a system for affordable and safe delivery of medical cannabis
to patients, violates the state constitution and is an illegal expenditure .
181. The expenditure of taxpayer money by MUNICIPALITY to undermine
state voters and state law in a manner that harms disabled and seriously ill patients
violates WLAD,WHPA and is an illegal expenditure.
182. The expenditure of MUNICIPALITY's local/state taxpayer funds to call-in
and assist the drug task force i.e. federal government to enforce federal law when the federal
government conditions its enforcement on: 1) MUNICIPALITY's interlocal agreeing contract(s);
and 2) MUNICIPALITY's expenditures to conduct and complete investigation, violates the
MUCA, and other provisions of state law and is illegal.
183. Plaintiffs have been and continue to be harmed by the aforementioned illegal actions of
MUNICIPALITY that violate the state laws and constitution Accordingly, Plaintiff pray' for
injunctive relief as set forth below.
184. It is the duty of the court "to protect the public from the activity of those who, because of
lack of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
THIRD CAUSE OF ACTION
(Declaratory Relief Wa. Chapter 7.24)
185. Plaintiffs re-allege and incorporate by reference all preceding and the
remainder of the allegations set forth in this Complaint as if fully set forth herein.
186. Defendant MUNICIPALITY contends that LOCAL ORDINANCE is valid
and enforceable.
187. Plaintiffs contend that LOCAL ORDINANCE is void, invalid, and/or
unenforceable. Specifically~ Plaintiff contend' that LOCAL ORDINANCE: 1) violates
WLAD,WHPA,MUCA; 2) conflicts with state law WLAD,WHPA,MUCA ;
and 3) conflicts with state law in contravention of art.XI sec.11, art. I sec. 7, art. I sec. 14 of
the Washington Constitution.
188. Defendant MUNICIPALITY contends that LOCAL ORDINANCE does
not violate WLAD,WHPA,MUCA, the ADA, or SEC. 504. Nor conflicts with state law in
contravention of art.XI sec.11, art. I sec. 7, art. I sec. 14 of the Washington Constitution
189. Plaintiffs contend that LOCAL ORDINANCE is discriminatory, violates
the WLAD,WHPA, the ADA, or SEC. 504, and is void, invalid, and/or unenforceable.
Plaintiff content' that the expenditure of taxpayer funds to call in the drug task force i.e.
federal government to thwart state law constitutes a violation of good faith withi their scope of
assigned duties Defendant contends it may use taxpayer funds to call in the drug task force i.e.
federal government to stop collectives operating fully within the requirements of state law despite
state law providing for those residential uses. Defendant further contends it may use taxpayer
funds to do investigative work that cannot be used and would not operate to show a
violation of state law and then use additional funds to transmit the results of such
investigation to the drug task force i.e. federal government so as to assist the federal government
in stopping all collectives and dispensaries within its border when such closure cannot be
accomplished because the collectives are operating in conformance with state law.
190. Defendant quotes the provisions RCW 36.70A.390 and RCW35.63.200 repeatedly yet,
provides no reasonable emergency to effectively usurp the state exemptions and the state
legislature without ANY "valid" court order to do so.
191. Wa. Chapter 7.48.160 RCW provides that "[n]othing that is done or maintained under the
express authority of a statute can be deemed a nuisance.'~
[Code 1881 § 1238; 1875 p 79 § 4; RRS § 9916.]
192. The command in ordinance M-3988 and any proposals that all medical cannabis qualifying
patients associate collectives in residentail zones are prohibited violates Chapter 7.48.160 RCW ,
WLAD,WHPA, MUCA, art.XI sec.11, art. I sec. 7, art. I sec. 14 of the Washington Constitution.
193. The proposed command In VMC 20, et seq. that al1 medical cannabis qualifying patients
residential premises collective gardens are per se public nuisances violates Chapter 7.48.160 RCW
, WLAD,WHPA, MUCA, art.XI sec.11, art. I sec. 7, art. I sec. 14 of the Washington
Constitution.
194. An actual controversy has arisen and now exists between Plaintiff and Defendant MUNI-
CIPALITY concerning LOCAL ORDINANCE, enforcement of that ordinance, state and federal
disability laws, the City's use of taxpayer funds to call-in and assist federal enforcement of a fed-
eral law by using the drug task force [drug fund],and the parties' respective rights as to each issue.
195. Plaintiffs request a judicial determination regarding the validity of current LOCAL ORD-
INANCE and further request a declaration of the respective rights of the parties.
196. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
FOURTH CAUSE OF ACTION
(Title II, Americans with Disabilities Act 42 U.S.C. § 12101, et seq.)
197. Plaintiffs re-allege and incorporate by reference all preceding and the
remainder ofthe allegations set forth in this Complaint as if fully set forth herein.
198. Title II of the ADA provides that no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity ~ or be subjected to
discrimination by any such entity. (42 U.S.C. § 12132, et seq.; 28 C.F.R. pt. 35; 49
C.F.R. pts. 37 and 38.)
199. Title II of the ADA prohibits public entities from discriminating against
disabled individuals.
200. For purposes of the ADA~ Plaintiff PATIENT remain qualified for
protection under the 42 U.S.C. § 12210(d)(I) exception for ''use of a THC dronabinol isomer drug
taken under supervision by a licensed healthcare professional."
201. Plaintiff IS a qualified individual with disabilities within the meaning of 42 U.S.C. § 12131 and
may seek relief under Title II of the ADA through 28 C.F.R. § 35.l30(g).
202. Defendant MUNICIPALITY is a public entity within the meaning of 42
U.S.C. § 12131(1).
203. Defendant MUNICIPALITY has violated the ADA: A) by intentionally
discriminating against the Plaintiff; B) through overprotective rules, policies,
procedures, and actions; and C) through laws, rules, policies, procedures, and actions that
have a disparate and adverse impact on the Plaintiff thereby denying Plaintiff the
benefits of its services, programs, and activities as more fully set forth above. The
aforementioned discrimination has interfered with, reduced, or prevented access to
medication used by the Plaintiffs to mitigate the symptoms and conditions related to his
(known by MUNICIPALITY) respective disabilities and serious illnesses thereby precluding or
severely restricting Plaintiffs' meaningful access to and use of public services.
204. Defendant MUNICIPALITY's violations of the ADA has harmed and will
continue to harm Plaintiff in the future.
205. Pursuant to the remedies, procedures, and rights set forth in 42 U .S.C. §
12133~ Plaintiffs pray for judgment as set forth below.
206. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
FIFTH CAUSE OF ACTION
(SEC. 504, Rehabilitation Act of 1973 29 U.S.C. §§ 701, et seq.)
207.Plaintiffs re-allege and incorporate by reference all preceding and the
remainder of the allegations set forth in this Complaint as if fully set forth herein.
208. SEC. 504 prohibits recipients of federal funding from denying to persons
with disabilities, on the basis of disability, the benefits provided by the federal funds
recipient, or from subjecting persons with disabilities to discrimination. 29 U.S.C. § 794;
49 C.F.R. Pt. 27.
209. Defendant MUNICIPALITY receives federal funding.
210. Defendant MUNICIPALITY has violated SEC. 504 by discriminating
against the Plaintiffs in the manner described herein.
211. Defendant MUNICIPALITY's violations of SEC. 504 have harmed and
will continue to harm Plaintiff in the future.
212. Pursuant to the remedies, procedures, and rights set forth in 29 U.S.C. §
794a, Plaintiffs pray for judgment as set forth below.
213. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
SIXTH CAUSE OF ACTION
(Wa. WLAD )
214. Plaintiffs re-allege and incorporate by reference all preceding and the
remainder ofthe allegations set forth in this Complaint as iffully set forth herein.
215.As set forth herein, Defendant MUNICIPALITY receives state funding.
216.As set forth herein, Defendant MUNICIPALITY has discriminated against
Plaintiffs in violation of WLAD.
217. Plaintiffs pray for the relief provide under and referenced in WLAD
including, but not limited to, injunctive relief and relief as set forth below.
SEVENTH CAUSE OF ACTION
(Wa. WHPA)
218. Plaintiffs re-allege and incorporate by reference all preceding and the
remainder ofthe allegations set forth in this Complaint as iffully set forth herein.
219. As set forth herein, Defendant MUNICIPALITY receives state and federal funding.
220. As set forth herein, Defendant MUNICIPALITY has discriminated against
Plaintiffs in violation the Housing Policy Act..
221. It is the duty of the court "to protect the public from the activity of those who, because of
lack of professional skills, may cause injury whether they are members of the bar or persons
never qualified for or admitted to the bar."
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for relief as follows:
l. That this Court declare LOCAL ORDINANCE is preempted by state law and federal law(s)
against disability discrimination;therefore void, invalid, and/or unenforceable;
2. That this Court declare that ordinance M 3988 or any similar proposed ordinance
facially and/or by operation discriminates against the Plaintiffs in contravention of WLAD,
WHPA,MUCA, SEC. 11135, Title II of the ADA, SEC. 504, a combination of each of the
aforementioned statutes, or all of them and are therefore void, invalid, and/or
unenforceable;
3. That this Court declare that LOCAL ORDINANCE facially and/or by
operation discriminates against the Plaintiffs in contravention of WLAD,WHPA,MUCA
Title II of the ADA, SEC. 504, a combination of each of the aforementioned statutes, or all
of them;therefore void, invalid, and/or unenforceable;
4. That this Court declare VMC 20 qualifying patients residential premises collective gardens
preclusion/ prohibition amendments void, invalid, and/or unenforceable ,under Chapter 7.48.160
RCW , WLAD,WHPA, MUCA, art.XI sec.11, art. I sec. 7, art. I sec. 14 of the Washington
Constitution and/or other provisions of state law.
5. That this Court issue a preliminary injunction under chapter 7.40 RCW
prohibiting enforcement of LOCAL ORDINANCE until and through trial in this matter;
6. That this Court issue a permanent injunction under chapter 7.40 RCW
prohibiting enforcement of LOCAL ORDINANCE following trial in this matter;
7. That this Court declare MUNICIPALITY's expenditure of city/state
taxpayer funds to call-in, assist-in, and support federal government enforcement of a
federal law violates state law and contravenes Wa. state constitution;therefore void, invalid, and/or
unenforceable;
8. That this Court issue a preliminary injunction prohibiting Defendant MUNICIPALITY,
MAYOR, and/or CITY FINANCIAL OFFICER from allowing or authorizing
MUNICIPALITY to further expend taxpayer funds to call-in, assist-in, through the drug task
force[drug fund] interlocal contract supporting federal government enforcement of a federal law
that is contrary to state law under MUCA;
9. That this Court award money damages in an amount to be proven at time of
trial under applicable provisions ofthe Rehabilitation Act (SEC. 504);
10. That this Court award money damages in an amount to be proven at time of
trial under applicable provisions of the federal ADA;
11. That this Court find that LOCAL ORDINANCE and the actions of MUNICIPALITY violate
Chapter 7.48.160 RCW , WLAD,WHPA, MUCA, art.XI sec.11, art. I sec. 7, art. I sec.14 of the
Washington Constitution and/or other provisions of state law and issue an injunction barring
enforcement of the ordinance pending trial;
12. That this Court award such additional, alternative, or further relief as maybe just, proper, and
equitable.
13. That this Court find that LOCAL ORDINANCE and the actions of MUNICIPALITY there-
fore prohibits any activity allowed by state law when conducted pursuant to a valid recommend-
ation of a medical practitioner for the use of cannabis for medical treatment at or on property in a
zoning district for private, non commercial use, and causes by design such pain and agony as to be
equivalent of that produced by torture. Because it prohibits what state law permits and causes
substantial bodily harm, and even has the potential of causing death to a suspect class of citizens, it
is in violation of article XI, section 11, article I section of the Washington State Constitution.
14. This court is empowered to enter a declaratory judgment under Chapter RCW 7.24 et. Seq .
Injunctive relief is authorized by RCW 7.40.010,.050 with a low burden ofproof threshold of actual
threat or actual harm .020. Thus, any further relief is within the proper discretion of the court
specifically authorized by .080. The court in its sound discretion may waive the required bond in
certain situations.
15. Plaintiff requests discretion of the court for waiver of said bond with an order from the court
signed and delivered to the clerk. Said plaintiff is a disabled man with scant financial means. The
burden of reimbursement to the City for costs associated herein would undoubtedly have dire
consequences to the plaintiff’s housing, health, safety and welfare.
16. That this Court find It is the duty of the court "to protect the public from the activity of those
who, because of lack of professional skills, may cause injury whether they are members of the bar
or persons never qualified for or admitted to the bar."
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN THE COUNTY OF CLARK
NO.
JAMES E. BARBER SR. COMPLAINT FOR DECLARATORY
PLAINTIFF, AND INJUNCTIVE RELIEF
WLAD ACTION RCW 49.60
TITLE II ADA VIOLATION
HOUSING DISCRIMINATION
DAMAGES 4.96 RCW
BOND WAIVER REQUEST
(M-3988/VMC 20)
Civil Rule 65
JURY TRIAL DEMAND
v.
CITY OF VANCOUVER, WA. ET. AL,
A WASHINGTON STATE POLITICAL
SUBDIVISION. ,DOES 1 TO 50, inclusive
DEFENDANT(S),
-----------------------------------------------------------------------------------------------------------------------------------------------
DECLARATION OF JAMES E. BARBER SR.
-----------------------------------------------------------------------------------------------------------------------------------------------
I, JAMES E. BARBER SR declare and state as follows:
1. I am at least 18 years of age and otherwise competent to make this declaration hereby declare:
2. I am the declarant and also a resident of the State of Washington.
3. On October 28, 2010 the social security administration found the palintiff suffers from 8 qualifying
conditions under federal laws retroactive to January 1, 1999 and listed plaintiff as both 100%
disabled under SSD and SSI and unemployable.
At the hearing, the ALJ conducted an indepth discussion of the plaintiffs cannabis use and approved
of such use upon viewing the plaintiffs state derived medical records and medcial cannabis
recommendations from both washington state and oregon state. The plaintiffs washington state
medical cannabis recommendation was signed in 2009 and does not have any expiration date or
start dates, the legislature has made these valid recommendations a specific grandfather status.
Plaintiffs conditions are perminent and not subject to any cure. No other known medicine addresses
plainfiffs medical conditions as found by the social security ALJ.
4. Attached hereto as Exhibit 1 is a true and correct copy of City of Vancouver M-3988, staff
report and amendments dated 07/16/12, 07/16/12, and 09/12/11. Noted in the staff report
07/16/12 page 1 paragraph 3 quote: " The Act delegates to cities the authority to impliment
zoning requirements, business license requirements, and health and safety requirements as those
requirements relate to the production, processing, or dispensing of medical marijuana.Specifically,
the Act would allow local government to address ambiguities concerning the location and
operation of collective gardens.
Page 2 Advantage(s):1.Provides the City with the time neccessary to complete work on proposed
set of use and development standards for collective gardens to ensure the health, safety, and
welfare of the community is adequately protected; and 2. Provides quaifying medical marijuana
patients with a clear process that is in accordance with the new Act.
Disadvantage(s): May initially limit qualifying medical marijuana patients from immediately
establishing collective gardens as that term is defined in the Act but following the enactment of
appropriate regulatory requirements will establish a clear process for establishing such gardens as
allowed by law.
5. Attached hereto as Exhibit 2 is a true and correct copy of City of Vancouver staff report and
proposed amendment recommendation(s) to the City Planning Commission dated October 11, 2012
and slated for public hearing on October 23, 2012.
Front page 1:
Project name Medical Marijauna Collective Gardens Code Amendments
PRJ2012-1505/CPZ2012-00008/SEP2012-00032
Request To hold a public hearing and recommend approval to the City Council of the text
amendments to VMC Title 20 (Land Use and Delelopment Code) that will govern the siting and
operational standards of medical marijuana collective gardens, as allowed by state law.
neighborhood associations All
Page 2 SUMMARY
Paragraph 1 (2nd) sentence states, quote: In 2011, the Washington State Legislature passed
ESSB 5073, which adopted a number of additional provisions related to medical cannabis, including
regulations for marijuana dispensaries and a preclusion of local municipal governments from
prohibiting collective gardens (e.g. grow operations that also may include the retail sale of
medical cannabis). Chapter 69.51A.085 has no such provisions to allow for retail sale of medical
cannabis. The Act does not mention or even aver to dispensaries being on the same preempted
and thus vetoed commercial business conduct and/or activity threshhold footing as a licensed
dispenser located in section 1102 codified at chapter 69.51A.140.
Paragraph 3 states, quote: On July 18, 2011 the City Council enacted a six-month moratorium
on collective gardens being established in the City of Vancouver, and the moratorium was extended
to December 31, 2012 in order to determine appropriate zoning districts, siting criteria, and
standards to address potential secondary impacts(noise, lights,odors,ect.).
Paragraph 4 states, quote: The proposed set of amendments to VMC Title 20 :"Land Use and
Development Code" would allow collective gardens, as defined by state law, to locate in the IL,
Light Industrial District subject to a number of location restrictions and special standards, including:
must be located entirely indoors within a secure structure; must be located no closer than 1,000
feet to any school, daycare, community center, park, residential care facility, or other collective
garden... members of the collective must comply with the registration and identification
requirements.
Paragraph 5 states, quote: The topic of medical marijuana collective gardens was discussed by
the planning commission at a work session on june 12,2012 prior to extention of the moratorium.
The attached draft ordinance (Exhibit C) reflects the most recent proposed changes reviewed by
the Planning Commission at their workshop on October 10,2012.
MEMORANDUM
This memorandum highlights the changes since the ordinance was presented to the Planning
Commission in workshop on October 9,2012. The changes are as follows:
6. Proposed New Subsection (P) 20.883 (page48).
The addition sets hours for distribution of cannabis from 7:00 am to 8:00 pm.
Chapter 69.51A.085 is berif of the notion, intent, implication(s) or words of distribution of cannabis
to be having hours of restricting, precluding disabled qualifying patients members class
association(s). This is evidence of 1st amendment encroachment and text book violation. This is
distinct text book discrimination and violates due process, and equal protections.
6. Attached hereto as Exhibit 3 is a true and correct copy of emails sent to various City of Vancouver
officials and employees informing them they have no purview over collective gardens and what
they are doing is illegal by torturing and assaulting qualifying cannabis patients. I also informed the
same persons the ordinance is unconstitutional.
7. Attached hereto as Exhibit 4 is a true and correct copy of the "cities and clark county" [drug fund]
interlocal government contract which violates washington state cannabis act, WHPA, WLAD,
ADA, FHAA, SEC. 504 as the drug task force members, and/or associations are mandated to
follow federal drug laws which do not recognize state laws on the lawful use of cannabis yet, these
persons are all city,town,county and/or state employees. These employees swore upon employment
to uphold Washington state laws now are charged with enforcing federal laws, not state laws as
required by the state and/or local government which employees them. SEC. 504 requirements are
written ito each contract as mandated to follow.
8. Attached hereto as Exhibit 5 is a copy of Chapter 69.51A.025, 040, 085, .130,.140 RCW.
Chapter(s) 35.63.220, 35A.63.240, 36.70A.410, 36.70.990 RCW.
I declare under penalty of perjury under the laws of the state of washington that the foregoing is
true and correct.
Dated this 30th day of October, 2012, at Brush Prairie, Washington.
____________________
James E. Barber Sr.
-----------------------------------------------------
The following transactions happened 11/8/12 in Case # 3:12-cv-05961-RBL
Minute order regarding discovery and depositions..
It is hereby ordered : discovery and depositions
order regarding initial disclosures, joint status report and early settlement
joint status report due 2/6/13
frcp 26f conference deadline is 1/23/13
initial dislosure deadline is 1/30/13
by Judge Ronald B. Leighton
--------------------------------------------------
James v. City of Costa Mesa amended 11/1/12
Footenote: 8
“ ‘If the statutory language is unambiguous and the statutory scheme
is coherent and consistent,’ judicial inquiry must cease.” Miranda v.
Anchondo, 684 F.3d 844, 849 (9th Cir. 2012) (quoting In re Ferrell, 539
F.3d 1186, 1190 n.10 (9th Cir. 2008)). If the statute is ambiguous, how-
ever, “we may use canons of construction, legislative history, and the stat-
ute’s overall purpose to illuminate Congress’s intent.” Probert v. Family
Centered Servs. of Alaska, Inc., 651 F.3d 1007, 1011 (9th Cir. 2011)
(quoting Ileto v. Glock, Inc., 565 F.3d 1126, 1133 (9th Cir. 2009)) (inter-
nal quotation marks omitted). “We may also look to other related statutes
because ‘statutes dealing with similar subjects should be interpreted har-
moniously.’ ” Tides v. Boeing Co., 644 F.3d 809, 814 (9th Cir. 2011)
(quoting United States v. Nader, 542 F.3d 713, 717 (9th Cir. 2008)); see
also Tidewater Oil Co. v. United States, 409 U.S. 151, 157-58 (1972)
(stating that it is essential that we place the words of a statute in their
proper context by resort to the legislative history,” including related con-
gressional activity addressing the same subject matter).
-------------------------
United States v. Butler, 297 U.S. 1, 66 (1936); Knowlton v.
Moore, 178 U.S. 41, 59-60 (1900) (holding that Congress can tax inheritances, even if it could
not regulate them under the Commerce Clause).
To be sure, Congress must use its power under Article I, Section 8, Clause 1, to “provide
for the . . . general Welfare.” As the Supreme Court held 75 years ago with regard to the Social
Security Act, however, decisions of how best to provide for the general welfare are for the
representative branches, not for the courts. Helvering v. Davis, 301 U.S. 619, 640, 645 & n.10
(1937); see South Dakota v. Dole, 483 U.S. 203, 207 (1987).
Generally, in construing the Social Security Act, our court has favored that interpretation
which gives effect to the beneficent purposes of the Act. Ewing v. Black, 172 F.2d 331, 335,
6 A.L.R.2d 948 (C.A.6 1949); Lietz v. Flemming, 264 F.2d 311, 313 (C.A.6 1959).
See also Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L. Ed. 1307 (1937).
The beneficent purpose of Congress in the enactment of the Social Security Act must not be ignored.
After painstaking investigation and elaborate research through experts, Congress reached the conclusion,
upon which it acted, that the award of old-age benefits is conducive to the general welfare.
See opinion of Mr. Justice Cardozo in Helvering v. Davis, 301 U.S. 619, 641-645, 57 S.Ct. 904, 909,
81 L.Ed. 1307, 109 A.L.R. 1319, where the legislative history of the Social Security Act is reviewed.
In his logical reasoning, the eminent jurist did not strain eloquence when he said: "The hope behind
this statute is to save men and women from the rigors of the poor house as well as from the haunting
fear that such a lot awaits them when journey's end is near."
Congress acted well within its authority to integrate the provision into the interrelated revenue and
spending provisions of the Act, and to treat it as necessary and proper to the overall goal of advancing
the general welfare. See Buckley v. Valeo, 424 U.S. 1, 90 (1976) (grant of power under General Welfare
Clause “is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause”).
Plaintiffs 66 page compliant seeks injunctive relief and money damages against defendant based on inter alia, the following authority: (a) the ADA title II of usc sec. 12101 et. seq.(4th cause of action); (b) sec. 504 rehabilitation act of 1973 29 usc sec. 701 et. seq. (5th cause of action); © 1st amendment right freedom of association(11th cause of action); (d) 14th amendment, for alleged deprivation of life, liberty or property without due process of law(12th cause of action).
I served the city on Nov. 1 and they wasted no time.... after I went to the superior court and requested an emergency TRO which got denied by the drunk judge ... and she made me pay a $ 20 surcharge being on social security... poverty level... putting me below poverty level.
Some judges need to leave office for doing stupid stuff like that ... denying access to the courts is a no-no.
And denied me bond waiver... stupid is as stupid does..
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN THE COUNTY OF CLARK
NO.
JAMES E. BARBER SR. COMPLAINT FOR DECLARATORY
PLAINTIFF, AND INJUNCTIVE RELIEF
WLAD ACTION RCW 49.60
TITLE II ADA VIOLATION
HOUSING DISCRIMINATION
DAMAGES 4.96 RCW
BOND WAIVER REQUEST
(M-3988/VMC 20)
Civil Rule 65
JURY TRIAL DEMAND
v.
CITY OF VANCOUVER, WA. ET. AL,
A WASHINGTON STATE POLITICAL
SUBDIVISION. ,DOES 1 TO 50, inclusive
DEFENDANT(S),
INTRODUCTION
1. Plaintiff James E. Barber Sr. a known by the City of Vancouver tobe a severely
disabled Washington State citizen on SSD , appearing pro-se, brings this civil action
against defendant City of Vancouver, WA., et. al. seeking declaratory relief under the
Uniform Declaratory Judgment Act, Chapter 7.24 RCW, injunctive relief under Chapter
7.40 RCW, Civil Rule 65, Chapter 49.60, Chapter 4.96 RCW, ADA Title II, and Housing
Discrimination.
Defendant the City of Vancouver is a political subdivision of the State of Washington.
This is not a LUPA petition as no finality has been had between Plaintiff and Defendants.
JURISDICTION AND VENUE
2. The court has subject matter jurisdiction over this matter under RCW 7.24 et. Seq.,
Civil Rule 65 Chapter,7.40 RCW, Chapter 49.60 RCW, 4.08.120 RCW, Chapter 4.96
RCW, State Constitution Art. 4 § 6 (Amendment 28). Defendant MUNICIPALITY is
located in this judicial district.
The acts, omissions, occurrences, injuries caused, and/or liabilities that are alleged in this
Complaint took place in this judicial district.
3. Accordingly, Venue is proper in Clark County Superior Court Chapter 2.08.210 RCW,
Chapter 4.12.025 RCW . Clark County Superior Court is the County Court in which both
Plaintiff and Defendant are located .
PARTIES AND STANDING
4. Plaintiff is a citizen of the State of Washington. Plaintiff is a “qualifying patient” with valid
documentation as required under Chapter 69.51A et. seq.
5. Plaintiff has “full” 100% SSA disability rating and rights under other federal laws which have
been prohibited within the city of vancouver located in the county of clark.
6. Plaintiff has standing.
7. Defendant CITY OF VANCOUVER ("MUNICIPALITY") is a Washington city established
and operating under provisions of art.XI of the Washington State Constitution.
8. Defendant City of vancouver is a political subdivision of the State of Washington located in the
county of clark, WA.. .
9. Plaintiff is informed and believe and based upon such information and belief allege that
MUNICIPALITY receives federal financial assistance.
10. Plaintiff is informed and believe and based upon such information and belief allege that
MUNICIPALITY receives financial funding from the State of Washington.
11. Defendant MUNICIPALITY is a "public entity~' within the meaning of 42 U.S.C. § 12131(1)
and 28 C.F.R. Part 35.
12. Plaintiff is presently unaware of the true names and capacities of Defendants designated as
DOES 1 TO 50, inclusive, ('"DOE DEFENDANT(S)") and therefore sue the DOE DEFEND-
ANTS by fictitious names and will seek leave of the Court to amend this Complaint to set forth
the true names and capacities of the fictitiously designated Defendants when such information
has been ascertained.
13.Plaintiffs are informed and believe and based upon such information and belief allege that each
of the DOE DEFENDANTS is responsible in some manner for the acts, omissions~ occurrences
and/or liabilities alleged in this Complaint.
14.This action is for violation of civil rights, declaratory relief, and injunctive relief. Accordingly,
filing in this judicial district and courthouse is proper under the Local Rules of this Court.
15. It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
BACKGROUND FACTS
16. In E2SSB 5073 the legislature had set up a system whereby the commercial business of
cultivation, materials handling and final sales of cannabis were to be licensed, registered and
zoned. The legislature did not amend 69.51A requiring commercial business licensing, registering
or zoning of patient growers, designated provider growers nor qualifying patients collectively
gardening. Obviously, the Legislature had no intent to do so.
17. But,, the governor explicitly designated local governments to have concurrent jurisdition over
non-profit cannabis oraganizations consisting of both qualifying patients and their designated
providers sharing in the responibility of it's medical cannabis membership(s).
18.A Vancouver City council meeting was held July 18, 2011. In his opening statement City
Attorney Ted Gathe states The County had already passed a moratorium.
19. Just previous to that, “The item before you tonight, here in council, is an interim moratorium
ordinance that is authorized by state law. To be passed on what is somewhat of an
emergency basis; which would create a six month moratorium on the establishment, location,
operation, licensing, maintenance or continuation of medical marijuana collective gardens
or dispensaries.”
The City used their emergency moratorium authority without public notice under the
auspice in good faith and within the scope of their assigned duties under Chapter 69.51A.
130 RCW intertwined with (if not bootstrapped to) Chapter 69.51A.140 RCW for interpreting
land use and zoning districts on the use of cannabis by qualifying patients and their collective
gardens at thier residential premises, as well as licensed dispensers (the city refers to as dispen-
saries} as necessary to further the public interest, for their health, safety, morals and welfare.
20. On September 12, 2011, the City held a public hearing as required by both moratoria
statutes and passed a preclusion ban on "qualifying patients collective gardens at their residential
premises as delineated in the statute, intertwined with dispensaries which is not deliniated in any
statute, just "licensed dispensers" are. The rule is that, to justify any law upon the theory that it
constitutes a reasonable and proper exercise of the police power, it must be reasonably necess-
ary in the interest of the health, safety, morals, or welfare of the people.
In State ex rel. Faulk v. CSG Job Ctr.,117 Wn.2d 493, 816 P.2d 725 (1991), this court
announced a two-part test to be employed when determining the validity of a statute
passed pursuant to the police power.
1.) First, the statute must promote the health, safety, peace, education, or welfare of the
people. CSG Job Ctr., 117 Wash.2d at 504, 816 P.2d 725
2.) Second,the requirements of the statute must bear some reasonable relationship to
accomplishing the purpose underlying the statute.CSG Job Ctr, 117 Wash.2d at 504,
816 P.2d 725.
21.The Washington Supreme Court has stated that federal preemption of state law, under the
Supremacy Clause of the US. Constitution (Art. VI), can occur in multiple ways:
"Congress may preempt state law by explicitly defIning the extent to which its enactments
preempt laws (express preemption). Preemption may also occur where the federal government
intends to exclusively occupy a fIeld (fIeld preemption) and where it is impossible to comply with
both state and federal law (conflict preemption)." Veit v. Burlington N Santa Fe Corp., 171 Wn.2d
88, 99, 249 P.3d 6097 (2011) (citing Campbell v. Dep't ofSoc. & Health Servs., 150 Wn.2d 881,
897, 83 P.3d 999(2004)).
Conflict preemption is found where it is impossible to comply with both state and federal law or
where state law "stands as an obstacle to the accomplishment of the full purposes and objectives
of Congress." McKee v. AT&T Corp., 164 Wn.2d 372, 387191 P.3d 845 (2008); citing Silkwood
v. Kerr-McGee Corp.,464 U.S. 238, 248, 104 S. Ct. 615, 78 L. Ed. 2d 443 (1984).
APPLICABLE DISABILITY LAWS
22. ROE v. TELETECH CUSTOMER CARE MANAGEMENT 257 P.3d 586 (2011) (Quite
often, marijuana is used to treat conditions that would qualify as a disability. Compare RCW
69.51A.010 (listing some of the qualifying conditions), with RCW 49.60.040(7)(a) (defining
"disability" for purposes of the Washington Law Against Discrimination, chapter 49.60 RCW).
23. To qualify as a suspect class. "the class must have suffered a history of discrimination. have
as the characteristic defining the class an obvious, immutable trait that frequently bears no relation
to ability to perform or contribute to society,and show that it is a minority or politically powerless
class.Race, alienage, and national origin are examples of suspect classifications. Andersen v.
King County,158 Wn.2d 1, 19, 138 P.3d 963 (2006).
WASHINGTON LAW AGAINST DISCRIMINATION(WLAD)
24. Wa. State statute chapter 49.60 , the Washington law against discrimination, prohibits laws,
rules, policies, procedures, and actions by anyone, including but, not limited to state, county,and
city governments that facially or through disparate impact discriminate against qualified disabled
individuals.
25. 49.60.220 It is an unfair practice for any person to aid, abet, encourage, or incite the co-
mmission of any unfair practice, or to attempt to obstruct or prevent any other person from
complying with the provisions of this chapter or any order issued thereunder.
26. 49.60.222 . It is an unlawful practice to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment of, or on account of his or her having exercised or enj-
oyed, or on account of his or her having aided or encouraged any other person in the exercise or
enjoyment of, rights regarding real estate transactions secured by RCW 49.60.030,
49.60.040, and 49.60.222 through 49.60.224.
27. 49.60.224 It is an unfair practice to insert in a written instrument relating to real pro-
perty a provision that is void under this section or to honor or attempt to honor such a provi-
sion in the chain of title.
28. City of Vancouver Ord. M-3988 and proposed Ord. both prohibit that which is authorized
by state law explicitly, qualifying patients associate class-member' collective gardens at his/her
private residential premises, which is preempted. The City of Vancouver ordinance is field pre-
empted by state law in 4 codified sections. Chapters 35.63.220 RCW, 35A.63.240 RCW,
36.70.990 RCW and 36.70A.410 RCW .
29. A local ordinance prohibiting certain behavior conflicts with a state statute only when the
language of the state statute expressly or implicitly permits the behavior. Luvene, 1 l8 Wash.2d
826,839,827 P.2d 1374 (1992). "In Burton, Division II of the appellate court created a four-part
test to determine whether a county may exact a road as a condition for development. "First, the
county must identify a public problem that the condition is designed to address." Burton, 91
Wn.App at 520. If it is only a private problem, the government lacks a legitimate public
purpose and the action is unconstitutional. Burton, 91 Wn. App. at 520. And the commercial
development of an individual's parcel is a private problem. Burton, 91 Wn. App. at 521.
TREATMENT OF RESIDENTIAL STRUCTURES OCCUPIED BY PERSONS
WITH HANDICAPS.
30. 35.63.220 RCW No city may enact or maintain an ordinance, development regulation,
zoning regulation or official control, policy, or administrative practice which treats a residential
structure occupied by persons with handicaps differently than a similar residential structure
occupied by a family or other unrelated individuals. As used in this section, "handicaps" are as
defined in the federal fair housing amendments act of 1988 (42 U.S.C. Sec. 3602).
31. 35A.63.240 RCW No city may enact or maintain an ordinance, development regulation,
zoning regulation or official control, policy, or administrative practice which treats a residential
structure occupied by persons with handicaps differently than a similar residential structure
occupied by a family or other unrelated individuals. As used in this section, "handicaps" are as
defined in the federal fair housing amendments act of 1988 (42 U.S.C. Sec. 3602).
32. 36.70A.410. RCW No county or city that plans or elects to plan under this chapter
may enact or maintain an ordinance, development regulation, zoning regulation or official
control, policy, or administrative practice which treats a residential structure occupied by
persons with handicaps differently than a similar residential structure occupied by a family or
other unrelated individuals. As used in this section, "handicaps" are as defined in the federal fair
housing amendments act of 1988 (42 U.S.C. Sec. 3602).
33. 36.70.990 RCW No county may enact or maintain an ordinance, development regulation,
zoning regulation or official control, policy, or administrative practice which treats a residential
structure occupied by persons with handicaps differently than a similar residential structure
occupied by a family or other unrelated individuals. As used in this section, "handicaps" are as
defined in the federal fair housing amendments act of 1988 (42 U.S.C. Sec. 3602).
34. 42 USC sec. 3602- Definitions
(b) “Dwelling” means any building, structure, or portion thereof which is occupied
as, or designed or intended for occupancy as, a residence by one or more families,
and any vacant land which is offered for sale or lease for the construction or location
thereon of any such building, structure, or portion thereof.
(f) “Discriminatory housing practice” means an act that is unlawful under section
3604, 3605, 3606, or 3617 of this title.
(h) “Handicap” means, with respect to a person—
(1) a physical or mental impairment which substantially limits one or more of such
person’s major life activities,
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment,
35. 42 USCS 3604(f)(2006). The act preempts conflicting laws.Id. $ 3615(any state or local
law " that purports to require any action that would be discriminatory housing practice
under this subchapter to that extent be invalid").
Amendments in 1988 prohibit discrim. against the handicapped.
36. A 3 bedroom dwelling with 3 qualifying patients whom also are designated providers can have
up to 90 plants and 144 Oz.total .The same 3 bedroom dwelling with the same qualifying patients
whom instead have a associate disabled class-member' collective garden are "restricted" to half of
the 90 plants ... i.e. 45 plants and only 72 Oz.
The defendant MUNICIPALITY has no good faith reasonable arguments to ban nor restrict one
use by specific disabled asscoiate class-member' which is already "restricted" by state law ... .
State ex reI. Bond v. State, 59 Wash.2d 493, 503, 368 P.2d 676 (1962) (Rosellini, J., dissenting)
(emphasis added) (quoting Alice in Wonderland) .Article I, section 16 of the Washington Con-
stitution provides, "No private property shall be taken or damaged for public or private use without
just compensation having first been made." Under this section, the state effects an unconstitutional
regulatory taking when it enacts a regulation that goes "too far" in infringing the plaintiff's property
rights. See, e.g., Orion Corp. v. State, 109 Wn.2d 621, 646, 747 P.2d 1062 (1987) (Orion II).
APPLICATION OF THE HOUSING POLICY ACT
37. We turn then to whether the planned population of the Home is handicapped under the
WHPA. The statute does not itself define "handicap." Instead it references the federal Fair
Housing Amendments Act of 1988, 42 U.S.C. § 3602:
(h) "Handicap" means, with respect to a person —
(1) a physical or mental impairment which substantially limits one or more of such person's
major life activities,
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment . ..
38. The regulations implementing the Rehabilitation Act of 1973 are also instructive since the
"handicap" definition is identical to that in the housing act. 45 C.F.R. pt. 84, app. A contains
language identical to the above, but it goes on to say:
[O]nly physical and mental handicaps are included. Thus, environmental, cultural,
and economic disadvantage are not in themselves covered; nor are prison records, age,
or homosexuality. Of course, if a person who has any of these characteristics also has a
physical or mental handicap, the person is included within the definition of
handicapped person.
45 C.F.R. pt. 84, app. A, at 355 (1994).
39. Originally focused on discrimination on the basis of race, color, national origin and religion,
the FHA was expanded to address sex-based discrimination in 1974 and to address discrimin-
ation on the basis of familial status and disability in 1988. Housing and Community Develop-
ment Act of 1974, Pub. L. 93-383, §808, 88 Stat. 633, 729 (1974);Fair Housing Amendments
Act of 1988, Pub. L. 100-430, 102 Stat. 1619-39 (1988).
40. The FHA can be violated by either intentional discrimination or if a practice has a disparate
impact on a protected class. Cmty. Serv., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 176
(3d Cir. 2005).Under the Act, any person harmed by discrimination, whether or not the target of
the discrimination, can sue to recover for his or her own injury. See Trafficante v. Metropolitan
Life Ins. Co., 409 U.S. 205, 212, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). "This is true, for example,
even where no housing has actually been denied to persons protected under the Act." San Pedro
Hotel, 159 F.3d at 475-76 (upholding standing of hotel owners in suit alleging that the City inter-
fered with the housing rights of the mentally ill); Smith v. Stechel, 510 F.2d 1162, 1164
(9th Cir.1975) (real estate agent fired for renting apartments to minorities allowed to sue under the
Act).
41. The Supreme Court has long held that claims brought under the Fair Housing Act are to be
judged under a very liberal standing requirement. Unlike actions brought under other provisions of
civil rights law, under the FHA the plaintiff need not allege that he or she was a victim of dis-
crimination. See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 115, 99 S.Ct. 1601, 60 L.
Ed.2d 66(1979) (holding that Caucasian residents have standing under the Act to challenge racial
discrimination against African-Americans in their neighborhood). Rather, the sole requirement for
standing under the Act is the "Article III minima of injury in fact." Havens Realty Corp. v. Cole-
man, 455 U.S. 363, 372, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). To meet this requirement, a
plaintiff need only allege "that as a result of the defendant's [discriminatory conduct] he has
suffered a distinct and palpable injury." Id.
42. In enacting the Americans with Disabilities Act, Congress concluded that it was important for
the current legislation to use terminology most in line with the sensibilities of most Americans with
disabilities. No change in definition or substance is intended nor should one be attributed to this
change in phraseology.
The term "disability" means, with respect to an individual -
(A) A physical or mental impairment that substantially limits one or more of the major life activities
of such individual;
(B) A record of such an impairment; or
(C) Being regarded as having such an impairment.
If an individual meets "any one of these three tests", he or she is considered to be an
individual with a disability for purposes of coverage under the Americans with
Disabilities Act.
43. Title II of 42 U.S.C. §§ 12101, et seq., the Americans with Disabilities Act ("ADA"),
provides that no qualified individual with a disability shall, by reason of such disability., be
excluded from participation in or be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any such entity. (42 U.S.C. § 12132,
et seq.; 28 C.F.R. pt. 35; 49 C.F.R. pts. 37 and 38.)
44. Defendant MUNICIPALITY may be held liable for damages in ADA Title II cases. (See,
e.g., Board of Trustees of the University ofAlabama v. Garrett (2001) 531 U.S. 356 [holding
city and county governments are not protected from damage awards in ADA Title II cases
under the Eleventh Amendment's sovereign immunity provision]; see also Tennessee v. Lane
(2004) 541 U.S. 509; United States v. Georgia (2006) 126 S. Ct. 877).
45. Section 504 of 29 U.S.C. §§ 701, et seq., the Rehabilitation Act of 1973 ("SEC. 504")~
prohibits discriminatory actions against handicapped individuals by federally funded government
entities.
46. Title 42 U.S.C. § 1983, the Civil Rights Act of 1871 ("SEC. 1983"), provides that "[e ]very
person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress." Under 42 U.S.C. § 1983,
"substantive due process is denied if a local jurisdiction makes a land use decision irrationally,
arbitrarily, and capriciously, its decision utterly fails to serve a legitimate governmental purpose, or
was tainted by improper motive." Cox v. City of Lynnwood,72 Wn.App. 1, 9, 863 P.2d 578 (1993)
(citing Robinson v. City of Seattle,119 Wn.2d 34, 62, 830 P.2d 318 (1992)).
47.Section 1 of the Fourteenth Amendment provides in pertinent part that "[n]o State shall . . deny
to any person within its jurisdiction the equal protection of the laws."
48. The Fourteenth Amendment provides equal protection of the law to all citizens: "'persons
similarly situated with respect to the legitimate purpose of the law receive like treatment.", Guard
Estate of Keffeler v. DSHS, 151 Wn.2d 331, 339, 88 P.3d 949 (2004)(internal cites omitted).
Paramount to the equal protection clause is the idea that all individuals With in one group must be
treaty equally. TO succeed with a equal protection challenge,a person must first establish that he
is similarly situated with other persons in a class who have received different treatment under the
same law.
49. The equal protection clause, found in the 14th Amendment to the U.S. Constitution has
consistently been construed substantially identically with the privileges and immunities clause found
in Article I, Section 12 of the Washington Constitution. Holbrook, Inc. v. Clark County, 112 Wn.
App 354, 367,49 P.3d 142 (2002); citing Equitable Shipyards, Inc. v. State, 93 Wn.2d 465, 476, 611
P.2d 396 (1980).State v. Osman, 157 Wn.2d 474, 139, P.3d 334 (2006); State v. Handley, 115 Wn.
2d 275 289-90, 796 P.2d 1266 (1990). If those within the class are treated equally, then equal
protection is satisfied and the analysis should end.
50. There are "two types of associational rights protected by the Constitution: the freedom of
'expressive association' and the freedom of 'intimate association.'" Am. Legion Post No. 149 v.
Dep't of Health, 164 Wn.2d 570, 601, 192 P.3d 306 (2008); citing City of Bremerton v. Widell, 146
Wn.2d 561, 575, 51 P.3d 733 (2002). Freedom of expressive association derives from the First
Amendment and applies to government interference with speech, assembly, redress of grievances,
and exercise of religion. Roberts v. US. Jaycees, 468 U.s. 609, 618, 104 S. Ct 3244, 82 L. Ed. 2d
462 (1984). Freedom of intimate association derives from the due process clause and principles of
liberty and privacy. Freedom of intimate association protects the "choices to enter into and
maintain certain intimate human relationships." fd. at 617. These relationships are protected
because they "have played a critical role in the culture and traditions of the Nation by cultivating
and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers
between the individual and the power of the State." fd. at 618-19. Such relationships are those
''that attend the creation and sustenance of a family," including marriage, childbirth, the raising and
education of children, and cohabitation with one's relatives. fd. at 619.
51. 6A Eugene McQuillin, The Law of Municipal Corporations § 24.54, at 150
(3d rev. ed.1997) ("that which is allowed under state law cannot be prohibited by ordinance").
This principle dates back to the earliest days of statehood. See Thomas M. Cooley, A Treatise
on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the
American Union 741 n. 2 (6th ed. 1890) ("If the municipal authority should assume to declare
something which was entirely lawful by the law of the State to be a nuisance, the declaration
would be a mere nullity because in conflict with the superior law.").
. ARTICLE XI § 11 OF THE WASHINGTON STATE CONSTITUTION.
52. SECTION 11 POLICE AND SANITARY REGULATIONS. Any county, city, town or
township may make and enforce within its limits all such local police, sanitary and other regulati-
ons as are not in conflict with general laws.
53. The above sentence prohibits municipalities from trumping state law.,and Court precedents
quoting Article XI, § 11 are many . The plaintiff believes the following makes his case
quite well.
WEDEN v. SAN JUAN COUNTY, 135 Wash.2d 678, 958 P.2d 273 (1998) Article XI, §
11 requires a local law yield to a state statute on the same subject matter if that statute
“preempts the field, leaving no room for concurrent jurisdiction,” or “if a conflict exists
such that the two cannot be harmonized.”
Then Attorney General Christine Gregoire states:
“The plenary police power in 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 concurrent 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 involved.
If the Legislature is silent as to its intent to occupy a given field, one must look to the pu-
rposes of the legislative enactment and to the facts and circumstances upon which the
enactment was intended to operate. If, on the other hand, the Legislature has
affirmatively expressed its intent to either occupy the field or accord concurrent
jurisdiction, then preemption, except to the extent of concurrent jurisdiction, is clear.”
. ARTICLE I § 7 OF THE WASHINGTON STATE CONSTITUTION
54. SECTION 7 INVASION OF PRIVATE AFFAIRS OR HOME PROHIBITED. No
person shall be disturbed in his private affairs, or his home invaded, without authority of
law.
Under the clear wording of the MUNICIPALITY ord. Any rights of privacy are
banished by prohibition, cf. Griswold v. Connecticut, 381 U. S. 479; Eisenstadt v.
Baird, 405 U.S. 438, 453-454.
ARTICLE I § 14 OF THE WASHINGTON STATE CONSTITUTION
55. SECTION 14 EXCESSIVE BAIL, FINES AND PUNISHMENTS. Excessive bail
shall not be required, excessive fines imposed, nor cruel punishment inflicted.
56. An assault is an attempt, with unlawful force, to inflict bodily injury upon another accompanied
with the apparent present ability to do harm if not prevented; whether there has been an ass-
ault depends more upon the apprehension created in the mind of the person assaulted than
upon the undisclosed intention of the person committing the assault.
57..The objective standard as asking "whether a reasonable person would foresee that the
statement would be interpreted by those to whom the maker communicates the statement as a
serious expression of intent to harm or assault." United States v. Orozco-Santillan,903 F.2d
1262, 1265 (9th Cir.1990); see also Lovell, 90 F.3d at 372.
The objective standard calls for an examination of the speech in the "light of [its] entire factual
context, including the surrounding events and reaction of the listeners." Orozco-Santillan, 903 F.2d
at 1265; see also Bellrichard, 994 F.2d at 1321 (focusing the inquiry on the context of the speech).
This line of cases and the objective standard were called into question by the Supreme Court's
statement in Black that "`[t]rue threats' encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful violence toa particular
individual or group of individuals," 538 U.S. at 359,123 S.Ct. 1536. Following Black, the court
applied a subjective standard in United States v. Cassel,408 F.3d 622, 633 (9th Cir.2005). The
court "conclude[d] that speech may be deemed unprotected by the First Amendment as a`true
threat' only upon proof that the speaker subjectively intended the speech as a threat." Id.
The Supreme Court has since analyzed speech under both an objective and a subjective standard.
In United States v. Stewart,420 F.3d 1007, 1015 (9th Cir.2005),the defendant stated that "he
wanted to target a judge and `string the motherfucker up and cut her throat, his throat, and make it
like a copycat so that people would do the same thing.'" The court found it unnecessary to
choose between an objective and subjective standard because the speech constituted a true
threat under either standard.Id. at 1018-19 . As in Stewart, it is unnecessary in this case to
choose between an objective and subjective standard as the communications speak for themselves
along with the following actions of the city of Vancouver in suit to put it in words and contact the
media.
58. In State v. Vanderveer, 115 Wn. 184, 196 Pac. 650 (1921),it is stated that "An act done will-
fully is done intentionally and designedly." (Italics ours.) In State v. Evans,32 Wn.2d 278, 201
P.2d 513 (1949) (a second degree assault case), the court pointed out that "A willful act is one
done intentionally, not accidentally." "[T]he term, `malice' conveys the meaning of hatred, ill-will,
or hostility toward another. . . . [M]alice has been frequently, substantially so defined as consisting
of the intentional doing of a wrongful act toward another without legal justification or excuse."
State v. Heyward, 197 S.C. 371, 15 S.E.2d 669, 671 (1941). The phrase "by design" means "inten-
tionally" and is not vague. "Grievous bodily harm", includes any hurt or injury calculated to in-
terfere with the health of the person injured, but need not be a permanent injury. "Grievous"
means atrocious, aggravating, harmful, painful, hard to bear, or serious in nature. One pur-
pose of affording constitutional rights to accused individuals and imposing limits on the State is to
protect accused individuals from overreaching by the disproportionately powerful State. Payne v.
Tennessee,501 U.S. 808, 860, 115 L.Ed.2d 720, 111 S.Ct. 2597 (1991) (Stevens, J., dissenting).
See also Pulley v. Harris,465 U.S. 37, 45, 79 L.Ed.2d 29, 104 S.Ct. 871 (1984) (constitutional
review of death penalty statutes is to avoid "wholly arbitrary, capricious, or freakish sentences");
State v. Cater's Motor Freight Sys., Inc., 27 Wn.2d 661, 667, 179 P.2d 496 (1947) (due process
guaranty protects individuals from arbitrary exercise of powers of government).
To ensure the death penalty is not imposed arbitrarily or invidiously, the jury must find at least one
aggravating factor involved in the crime.
"It is of vital importance to the defendant and to the community that any decision to impose the
death sentence be, and appear to be, based on reason rather than caprice or emotion". Barth-
olomew II, 101 Wn.2d at 638 (quoting Gardner v. Florida,430 U.S. 349, 358, 51 L.Ed.2d 393, 97
S.Ct. 1197 (1977)).
59. Assault is a crime against the state as well as against the victim, and forgiveness of the
assailant by the victim does not change the fact that a crime was committed; nor does the fact that
the victim desires that the charges be dropped imply that the force used by the assailant was
lawful.
Second degree assault inflicted by torture is not a lesser included offense of first degree assault.
60. As noted above, the MUNICIPALITY ord. and proposed ord. has been intentionally designed
to assault the plaintiff and a whole community just like the plaintiff without legal
justification or excuse and has inflicted cruel torturing punishment which is hard to bear, harmful,
painful, and very serious in nature when citizens are unable to mitigate these harms.. this is ill will
and hostility towards a subset class of disabled citizens. Not only is it criminal but also unconstitut-
ional. Plaintiff has been damaged.
61. In Seattle Trust Co. v. Roberge, 278 U. S. 116, Seattle had a zoning ordinance that permitted
a " `philanthropic home for children or for old people' " in a particular district " `when the written
consent shall have been obtained of the owners of two-thirds of the property within four hundred
(400) feet of the proposed building.' " Id.,at 118. The Court held that provision of the ordinance
unconstitutional, saying that the existing owners could "withhold consent for selfish reasons or
arbitrarily and may subject the trustee [owner] to their will or caprice." Id., at 122.Unlike the bill-
board cases (e. g., Cusack Co. v. City of Chicago, 242 U. S. 526), the Court concluded that the
Seattle ordinance was invalid since the proposed home for the aged poor was not shown by its
maintenance and construction "to work any injury, inconvenience or annoyance to the
community, the district or any person." 278 U. S., at 122.
62. RCW 7.48.160 Authorized act not a nuisance.
Nothing which is done or maintained under the express authority of a statute, can be deemed a
nuisance.
[Code 1881 § 1238; 1875 p 79 § 4; RRS § 9916.]
63.Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ("[The right to vote]
is regarded as a fundamental political right, because preservative of all rights.");
64. United States v. Bass, 404 U.S. 336, 349-50 (1971)(citation omitted) (unless Congress conveys
its purpose clearly, it will not be deemed to have altered “sensitive federal-state relationships”).
65. Public entities hold a unique trust on behalf of the citizens they represent and are generally
subject to constitutional obligations to provide equal protection to all persons within their jurisd-
iction. In such cases, the threat of disparate impact liability may be an effective means to assure
thatpublic bodies consider the impact of their actions on persons within their jurisdiction and to
cause them to refrain from action that has an unequal impact.See Peter E. Mahoney, The End(s)
Of Disparate Impact: Doctrinal Reconstruction, Fair Housing And Lending Law, and the Anti-
discrimination Principle, 47 EMORY L.J. 409, 440–42 (1998).
66. RCW 69.51A.130 State and municipalities — Not subject to liability.
(1) No civil or criminal liability may be imposed by any court on the state or its officers and
employees for actions taken in good faith under this chapter and within the scope of their
assigned duties.
(2) No civil or criminal liability may be imposed by any court on cities, towns, and counties or
other municipalities and their officers and employees for actions taken in good faith under this
chapter and within the scope of their assigned duties.
[2011 c 181 § 1101.]
67. 4.96.010 All local governmental entities, whether acting in a governmental or proprietary
capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct
of their past or present officers, employees, or volunteers while performing or in good faith purp-
orting to perform their official duties, to the same extent as if they were a private person or corp-
oration. Purpose -- 1993 c 449: "This act is designed to provide a single, uniform procedure for
bringing a claim for damages against a local governmental entity. The existing procedures,
contained in chapter 36.45 RCW, counties, chapter 35.31 RCW, cities and towns,
chapter 35A.31 RCW, optional municipal code, and chapter 4.96 RCW, other political sub-
divisions, municipal corporations,and quasi-municipal corporations,are revised and consolidated
into chapter 4.96 RCW." [1993 c 449 § 1.]
68. It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills,may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
. SSA APPLICABLE DISABILITY LAW
69. On March 28, 1996,(1st yr any medical cannabis act went into law for seriously ill qualifying
patient whom are "DISABLED" and using cannabis) Congress amended Title II of the Social
Security Act by adopting the Contract With America Advancement Act ("CAAA"), Pub.L. No.
104-121 § 105(a)(1)
(C). The amendment provides: "An individual shall not be considered to be disabled for purposes
of this title if alcoholism or drug addiction would (but for this subparagraph) be a contributing
factor material to the Commissioner's determination that the individual is disabled."
70. "In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record
including, inter alia, medical records, lay evidence, and `the effects of symptoms, including pain,
that are reasonably attributed to a medically determinable impairment.'" Robbins v. Social Security
Admin., 466 F.3d 880, 883 (9th Cir. 2006).
71. For purposes of the Social Security Act, disability is the "inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A);
Schaal, 134 F.3d at 501.
72.Under the authority of the Social Security Act, the Social Security Administration has
established a five-step sequential evaluation process for determing whether an individual is diabled
(20 CFR 404.1520(a) and 416.920(a)). These steps are followed in order. If it is determined that
the claimant is or is not disabled at a step of the evaluation process, the evaluation will not go on
to the next step.
73. If it is found that a claimant is disabled and there is medical evidence of a substance use
disorder(s), the undersigned must determine if the substance use disorder(s)
is a contributing factor material to the determination of disability. In making this
determination, the undersigned must evaluate the extent to which the claimant's mental and
physical limitations would remain if the claimant stopped the substance use. If the remaining limit-
ations would not be disabling, the substance use disorder(s) is a contributing factor material to
the determination of disability(20 CFR 404.1535 and 416.935). If so the claimant is not dis-
abled.
74. Plaintiff has the burden of showing that drug and alcohol addiction (DAA) is not a con-
tributing factor material to disability. Ball v. Massanari, 254 F.3d 817, 823 (9th Cir.2001). The
Social Security Act bars payment of benefits when drug addiction and/or alcoholism is a
contributing factor material to a disability claim.42 U.S.C. §§ 423 (d)(2)(C) and 1382 (a)
(3)(J); Sousa v. Callahan,143 F.3d 1240, 1245 (9th Cir.1998). If there is evidence of DAA and the
individual succeeds in proving disability, the Commissioner must determine whether DAA is
material to the determination of disability. 20 C.F.R. §§ 404.1535 and 416.935. If an ALJ
finds that the claimant is not disabled, then the claimant is not entitled to benefits and there
is no need to proceed with the analysis to determine whether substance abuse is a contributing
factor material to disability.However, if the ALJ finds that the claimant is disabled, then the ALJ
must proceed to decide if the claimant would be disabled if he or she stopped using alcohol
or drugs.
75. Sutton v. United Airlines, Inc. is inapplicable to social security and state disability laws of
unemployable and the plaintiff in this case or any other in regards to using cannabis with such a
disability.
REHABILITATION SERVICES
76. Treatment Referrals for Individuals With An Alcoholism or Drug Addiction Condition
(e) In the case of any individual whose benefits under this title are paid to a representative payee
pursuant to section 205(j)(1)(B), the Commissioner of Social Security shall refer such individual to
the appropriate State agency administering the State plan for substance abuse treatment services
approved under subpart II of part B of title XIX of the Public Health Service Act (42 U.S.C.
300x-21et seq.).
[236] P.L. 106-170, §101(b)(1)(B); 113 Stat.1873.
[237] P.L. 106-170, §101(b)(1)(C); 113 Stat.1873.
[238] The month is October 1960; the paragraph was enacted on September 13, 1960, as part of
P.L. 86-778 [74 Stat. 968].
[239] P.L. 93-112.
[240] P.L. 93-112.
77. It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
CLARIFICATION OF DISABILITY UNDER TITLE II OF THE ADA.THE CSA
REGULATES RECREATIONAL DRUG USE/ABUSE (TRAFFICKING) AND NOT
MEDICINAL USE OF NATURAL DRONABINOL (THC-DELTA-9 ISOMER) FOR
MEDICAL PURPOSES.
78. There is considerable evidence that efforts to regulate cannabis (THC) use in the early-
twentieth century targeted recreational use, but permitted medical use. See Richard J. Bonnie
& Charles H. Whitebread, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the
Legal History of American Marijuana Prohibition, 56 Va. L.Rev. 971, 1010, 1027, 1167 (1970)
(noting that all twenty-two states that had prohibited cannabis(THC) by the 1930s created
exceptions for medical purposes). By 1965, although possession of cannabis (THC) was a crime
in all fifty states, almost all states had created exceptions for persons for whom the drug had been
prescribed or to whom it had been given by an authorized medical person. Leary v. United States,
395 U.S. 6, 16-17 (1969). See Raich v. Gonzales, 500 F.3d 850, 865 (9th Cir. 2007).The CSA was
passed in 1970 with the main objectives of combating drug abuse and controlling the legitimate and
illegitimate traffic in controlled substances. Gonzales v. Oregon (2006) 546 U.S. 243, 250. The
CSA set up a comprehensive regulatory scheme criminalizing unauthorized activities relating to the
substances in any of the Act’s five schedules.Id.The focus of the CSA is “combating recreational
drug abuse.” Id. at 246. The purpose of the CSA is to combat recreational drug abuse and not
regulate state medical practices. Id. at 270-272; County of San Diego v. San Diego NORML, 165
Cal.App.4th 798; City of Garden Grove v. Superior Court, 157 Cal.App.4th 355. Thus, the goal of
the CSA is to regulate and control recreational drug use as in I-502, while allowing states to regul-
ate medical practices as under state law(s) MUCA and SSA under other federal law(s).
79.Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such
disability,be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity or be subjected to discrimination by any such entity.” 42 U.S.C.§
12132. A “public entity” includes “any State or local government,” id.§ 12131(1)(A), and there
is no dispute that the defendant MUNICIPALITY IS a public entity for purposes of Title II.
Title II of the ADA was expressly modeled after Section 504. Thus, "[t]here is no significant
difference in analysis of the rights and obligations created" by these statutes. Zukle v. Regents of
University of California, 166 F.3d 1041, 1045, n.11 (9th Cir. 1999). See 42 U.S.C. § 12133 ("The
remedies, procedures, and rights set forth in [§ 504] shall be the remedies, procedures, and rights
this subchapter provides to any person alleging discrimination in violation of section 12132 of this
title.").
80. 42 U.S.C. § 12210 : US Code - Section 12210: Illegal use of drugs
(a) In general
For purposes of this chapter, the term "individual with a
disability" does not include an individual who is currently
engaging in the illegal use of drugs, when the covered entity acts
on the basis of such use.
(b) Rules of construction
Nothing in subsection (a) of this section shall be construed to exclude as an individual with a
disability an individual who -
(3) is erroneously regarded as engaging in such use, but is not engaging in such use;
(d) "Illegal use of drugs" defined
(1) In general
The term "illegal use of drugs" means the use of drugs, the
possession or distribution of which is unlawful under the
Controlled Substances Act [21 U.S.C. 801 et seq.]. Such term does
not include the use of a drug taken under supervision by a
licensed health care professional,or other uses authorized by
the Controlled Substances Act or other provisions of Federal law..
81.In Moore, for example, the defendant doctor "acted as a large-scale `pusher' not as a
physician," and admitted that he did not observe generally accepted medical practices. 423
U.S. at 126, 143.
82. In Rosenberg, the evidence established that "[w]hen a doctor acts as Dr. Rosenberg did in this
case, he can appropriately be called a trafficker in drugs." 515 F.2d at 196. The Rosenberg
court was careful to note, however, that the phrase "in the course of professional medical
practice" as used in the CSA "clearly means that a doctor is not exempt from the statute when
he takes actions that he does not in good faith believe are for legitimate medical purposes,"
plainly a subjective standard. 515 F.2d at 197 (emphasis added).
83. Johnston v. Barnhart, 378 F. Supp. 2d 274, 281-82 (W.D.N.Y. 2005); see Buchholz v.
Barnhart, 56 Fed. App'x 773, 776 (9th Cir. 2003) ("it is unclear how, if at all, Buchholz's medical
marijuana use affects his credibility"); Sessions v. Astrue, Dist. Court, WD New York 2010
(citing Aponte v.Sec'y of Dep't of Health & Humans Servs., 728 F.2d 588, 591 (2d Cir. 1984)
( Assessing the credibility of the claimant is a function of the Commissioner and not the reviewing
court.) .; Lawson v. Astrue, No.06-4136-RDR, 2007 U.S. Dist. LEXIS 96408, 2007 WL 3026648,
*8 (D. Kan. Sept. 27, 2007) ("The relevance of the ALJ's reference to plaintiff's marijuana
use is not well-explained.
If the ALJ believes that the marijuana use contributes to plaintiff's depression, then he should
have referred to some evidence in the record to support that belief. If he believes that people
who smoke marijuana do not make credible claims of disability, then he should have said so
and supported that position.").
84. The determination of what constitutes a legitimate medical practice or purpose traditionally has
been left to the individual states. State statutes, state medical boards, and state regulations control
the practice of medicine.The CSA was never intended, and the USDOJ and DEA were never
authorized, to establish a national medical practice or act as a national medical board.To allow an
attorney general-an appointed executive whose tenure depends entirely on whatever admin-
istration occupies the White House—to determine the legitimacy of a particular medical practice
without a specific congressional grant ofsuch authority would be unprecedented and extraordinary.
As stated, the practice of medicine is based on state standards, recognizing, of course, national
enactments that,within constitutional limits, specifically and clearly define what is lawful and what
is not.. OREGON v. ASHCROFT 192 F.Supp.2d 1077 (2002).
85. Gonzales v. Oregon, 547 US (2008) In deciding whether the CSA can be read as prohibiting
physician-assisted suicide, we look to the statute's text and design. The statute and our case law
amply support the conclusion that Congress regulates medical practice insofar as it bars doctors
from using their prescription writing powers as a means to engage in illicit drug dealing and
trafficking as conventionally understood.Beyond this, however, the statute manifests no intent to
regulate the practice of medicine generally. The silence is understandable given the structure and
limitations of federalism, which allow the States " 'great latitude under their police powers to leg-
islate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.'" Medtronic,
Inc. v. Lohr, 518 U.S. 470, 475 (1996) (quoting Metropolitan Life Ins.Co. v.Massachusetts,471
U. S. 724, 756 (1985)).
Even though regulation of health and safety is "primarily, and historically, a matter of local
concern," Hillsborough County v. Automated Medical Laboratories, Inc.,471 U. S. 707, 719(1985).
In connection to the CSA, however, the Supreme Court finds only one area in which Congress set
general, uniform standards of medical practice. Title I of the Comprehensive Drug Abuse Preven-
tion and Control Act of 1970, of which the CSA was Title II, provides that:
"[The Secretary], after consultation with the Attorney General and
with national organizations representative of persons with knowledge
and experience in the treatment of narcotic addicts, shall determine
the appropriate methods of professional practice in the medical treatment
of the narcotic addiction of various classes of narcotic addicts, and
shall report thereon from time to time to the Congress." §4, 84 Stat.
1241, codified at 42 U. S. C. §290bb—2a.
This provision strengthens the understanding ofthe CSA as a statute combating recreational
drug abuse, and also indicates that when Congress wants to regulate medical practice in the
given scheme, it does so by explicit language in the statute.The Attorney General has rule-
making power to fulfill his duties under the CSA. The specific respects in which he is authorized to
make rules, however, instruct the court that he is not authorized to make a rule declaring illeg-
itimate a medical standard for care and treatment of patients that is specifically authorized under
state law.
86. U.S. Equal Emp’t Opportunity Comm’n, Section 902 Definition of the Term Disability, at §
902.6 (last modified No. 21, 2009), available at Section 902 Definition of the Term Disability
(last visited Apr. 27, 2012).-
Section 902 Definition of the Term Disability
The Compliance Manual Section onthe Definition of the Term "Disability" has been removed from
this website, since the analysis in it has been superseded by the ADA Amendments Act of 2008
(ADAAA). The ADAAA makes it easier for individuals challenging employment actions
under Title I of the ADA to establish that they meet thedefinition of "disability" and are thus
protected by the law.
For more information on the ADAAA, go to Information about the Americans with Disabilities Act Amendments Act (ADAAA)
SEC. 6. RULES OF CONSTRUCTION.
(a) Title V of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 et seq.) is amended-
(1) by adding at the end of section 501 the following:
(e) BENEFITS UNDER STATE WORKER’S COMPENSATION LAWS.—Nothing in this Act
alters the standards for determining eligibility for benefits under State worker’s compensation laws
or under State and Federal disability benefit programs.
This page was last modified on July 25, 2012.
87. The legislative history of the ADA indicates that Congress intended judicial interpretation ofthe
Rehabilitation Act be incorporated by reference when interpreting the ADA. See Laura F.
Rothstein Disabilities and the Law § 3.12 (1992).
88. RCW 69.50.308 Prescriptions.
(e) A valid prescription or lawful order of a practitioner, in order to be effective in legalizing
the possession of controlled substances, mustbe issued in good faith for a legitimate medical
purpose by one authorized to prescribe the use of such controlled substance. An order purp-
orting to be a prescription not in the course of professional treatment is not a valid pre-
scription or lawful order of a practitioner within the meaning and intent of this chapter;
and the person who knows or should know that the person is filling such an order, as well as the
person issuing it, can be charged with a violation of this chapter.
89. Rcw 69.51A.010
(7) "Valid documentation" means:
(a) A statement signed and dated by a qualifying patient's health care professional written
on tamper resistant paper, which states that, in the health care professional's professional
opinion, the patient may benefit from the medical use of marijuana; and
90. It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
STATE MEDICAL CANNABIS LAW
91. In November, 1998, Washington voters approved the Medical Use of Marijuana Act
('''MUMA''). (I-692 [1998]; Wa.long-term health &safety statute chapter 69.51A.) The
MUMA in-part provided that the state should implement a safe and affordable distribution
system that provides for all seriously-ill Washitonians in need of medical marijuana..
92. In 2007, the state governor approved the designated provider section and added conditions
for which cannabis could be used.
93. "The law should not be construed to do indirectly what it cannot do directly". Gelpcke v. City
of Dubuque,11 68 U.S. (l Wall) 175, 192, 17 L. Ed. 520 (1864) ("It is almost unnecessary to say,
that what the source")Governor Gregiore addresses the stream and its source in her veto letter as
shown below:
I fully support the purpose of Initiative 692, and in 2007, I signed legislation that expanded the
ability of a patient to receive assistance from a designated provider in the medical useof marijuana,
and added conditions and diseases for which medical marijuana could be used. Today, I have
signed sections of Engrossed Second Substitute Senate Bill 5073 that retain the provisions of
Initiative 692 and provide additional state law protections.
94. The definitions of medical cannabis qualifying patient, designated provider and qualifying
patients collective gardens are provided in state statutory and/or decisional law.
95.. The legislature,by it’s enactment of Chapter 69.51A.025 Construction of Chapter-Compliance
with RCW 69.51A.040 clearly provides: Nothing in this Chapter or in the rules adopted to impl-
ement it precludes a qualifying patient or designated provider from engaging in the private, un-
licensed, non commercial production, possession, transportation, delivery, or administration of can-
nabis for medical use as authorized under RCW 69.51A.040.
[2011 c 181 $ 413]
96. "Noncommercial" is not defined by the MUCA. Its ordinary meaning is "not commercial,"as in
"not used in commerce," "having no commercial importance," or "not commercially motivated."
Webster's Third New International Dictionary 1536 (1993).
97. The legislature, by it’s enactment of Chapter 69.51A.040 Compliance with chapter-Qualifying
patients and designated providers not subject to penalties-law enforcement not subject to liability
provides in relevant part:
The medical use of cannabis in accordance with the terms of this chapter does not constitute a
crime and a qualifying patient or designated provider in compliance with the terms and
conditions of this chapter may not be arrested, prosecuted, or subjected to other criminal
sanctions or civil consequences, for possession, manufacture, or delivery of, or for possess-
ion with intent to manufacture or deliver, cannabis under state law, or have real or personal
property seized or forfeited for possession, manufacture, or delivery of, or for possession with
intent to manufacture or deliver, cannabis under state law,and investigating peace officers and law
enforcement agencies may not be held civilly liable for failure to seize cannabis plants in this
circumstance if:
(1) (a) The qualifying patient or designated provider possesses no more than fifteen plants and;
( i ) No more than twenty four ounces of usable cannabis;
(ii) No more cannabis product than what could reasonably be produced with no more than twenty
four ounces of usable cannabis; or
(iii) A combination of usable cannabis and cannabis product that does not exceed a combined total
representing possession and processing of no more than twenty four
ounces of usable cannabis.
(b) If a person is both a qualifying patient and a designated provider for another qualifying patient,
the person may possess no more than twice the amounts described in (a) of this subsection,
whether the plants, usable cannabis, and cannabis product are possessed individually or in combin-
ation between the qualifying patient and his or her designated provider.
(2) The qualifying patient or designated provider presents his or her proof of registration with the
department of health, to any peace officer who questions the patient or provider regarding his or
her medical use of cannabis;
(3) The qualifying patient or designated provider keeps a copy of his or her proof of registration
with the registry established in *section 901 of this act and the qualifying patient or designated pro-
vider's contact information posted prominently next to any cannabis plants, cannabis products, or
useable cannabis located at his or her residence..
98. The legislature, by it’s enactment of RCW 69.50.302 Registration requirements clearly pro-
vides in relevant part: :
(c ) The following persons need not register and may lawfully possess controlled sub-
stances under this chapter.
(3) An ultimate user or a person in possession of any controlled substance pursuant to a law-
ful order of a practitioner or in lawful possession of substance included in schedule V
[2011 c 336 $ 839; 1993 c 187 $ 16; 1989 1st ex.s c 9 $ 432; 1971 ex.s. c 308 $ 69.50.302]
99. The legislature, by it’s enactment of Chapter 9A.36.021 in relevant part:
was to protect the citizens within it’s boarders from serious bodily harm which could amount to
serious physical or psychological violations or even death. And provides fully: to punish those
violators of a criminal violent act with severe punishment to garnish a violation as a class B felony.
100. The legislature, by it’s enactment of Chapter 69.51A.085 is a section of the Washington State
medical cannabis act which enables qualified patients to create and participate in collective
gardens for the purpose of producing, processing, transporting, and delivering cannabis
for medical use, in relevant part:
RCW 69.51A.085 Collective Gardens.
(1) Qualifying patients may create and participate in collective gardens for the purpose of
producing, processing, transporting, and delivering cannabis for medical use subject to
the following conditions:
(d) A copy of each qualifying patient's valid documentation or proof ofregistration 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 useable cannabis from the collective garden is delivered to anyone other than one ofthe
qualifying patients participating in the collective garden.
(2) For purposes of this section, the creation of a "collective garden" means qualifying
patients "sharing responsibility for acquiring and supplying the resources required" to
produce and process cannabis for medical use such as, for example, a location for a collec-
tive garden; equipment, supplies, and labor necessary 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 section is not
entitled to the protections of this chapter.
[2011 c 181 § 403.]
Notes: *Reviser's note: The section creating a registry, 2011 c 181 § 901, was vetoed by the
governor.
101. The defendant MUNICIPALITY relies entirely on Section 1102 of ESSSB 5073, now cod-
ified in RCW 69.51A.l40, which speaks to the authority of cities to regulate the production, pro-
cessing, or dispensing of cannabis or cannabis products , provides:Cities and towns may adopt and
enforce any of the following pertaining to the production, processing, or dispensing of cannabis or
cannabis products within their jurisdiction: Zoning requirements, business licensing requirements,
health and safety requirements, and business taxes. Nothing in this act is intended to limit the auth-
ority ofcities and towns to impose zoning requirements orother conditions upon licensed dispensers,
so long as such requirements do not preclude the possibility of siting licensed dispensers within the
jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt
zoning to accommodate licensed dispensers.
102. In the Governor's veto letter, the Governor vetoed the state licensed dispensaries sections
supporting section 1102, and either made section 1102 of ESSSB 5073 an orphan section without
meaning as shown below: Section 1102 sets forth local governments' authority pertaining to the
production, processing or dispensing of cannabis or cannabis products within their jurisdictions.The
provisions in Section 1102 that local governments' zoning requirements cannot "preclude the poss-
ibility of siting licensed dispensers within the jurisdiction" are without meaning in light of the vetoes
of sections providing for such licensed dispensers. 1t is with this understanding that I approve
Section 1102.
103. Or in the alternative, section 1102 was left it in to allow nonprofit cannabis cooperatives
organizations to produce, process and dispense cannabis if the legislature chose to act as shown
below:
I have been open,and remain open, to legislation to exempt qualifying patients and their designated
providers from state criminal penalties when they join in nonprofit cooperative organizations to
share responsibility for producing, processing and dispensing cannabis for medical use.
Such exemption from state criminal penalties should be conditioned on compliance with
local government location and health and safety specifications.
104. It is crystal clear the legislature did not intend to provide local control over qualifying patients
collective gardens,( see SUBSTITUTE SENATE BILL 6265
billdocs/2011-12/Pdf/Bills/Senate%20Bills/6265-S.pdf , along with the video of the debate
Home - TVW … 2012010118 ) and it is also clear
that Governor Gregoire also did not intend to create local control over qualifying patients in any
collective gardens, except to allow them.
105. Any definition of medical cannabis qualifying patient, designated provider and/or collective
gardens, dispensaries, and/or cultivation sites included in ordinances, laws, rules, codes and/or
regulations adopted by Defendant MUNICIPALITY that are different than the state law
definitions of those thus are superseded by such state law definitions and/or decisional law.
.
106. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
APPLICABLE STATE DISABILITY PROTECTIONS
107. Plaintiff PATIENT suffer' from a physical and/or mental condition ("DISABILITY") that
affects a major life activity within the meaning of the WLAD,WHPA and chapter 69.51A.010.
108. Plaintiff PATIENT is an individual with disabilities as defined in Social Security Act, ADA,
Rehabilitation Act, ., which is identical to (SSA),Wa. Health and Safety statute chapter 69.51A
RCW et seq,WLAD, WHPA a combination of each of the aforementioned statutes, or all
of them.
109. The WLAD,WHPA, (SSA)~ protect against "'violation of the right of an individual under"
the ADA.
110. The ADA provides, at 42 U.S.C. § 12201(b), that "[n]othing in this Act shall be construed
to invalidate or limit the remedies, rights, and procedures of ... any State or political subdivision
of any State or jurisdiction that provides greater or equal protection for the rights of individuals
with disabilities than are afforded by this Act."
111.The ADA requires only accommodations that are reasonable."[T]he accommodation required
by the law is limited, not just expanded, by the word `reasonable.'" McGary, 386 F.3d at 1270.
Where a law is intended to protect the community,an accommodation that threatens the health and
safety of the community may be unreasonable.Id.Courts generally will not second-guess the public
health and safety decisions of state legislatures acting within their traditional police powers, but the
ADA and accompanying regulations require courts to ensure that the decision reached by the state
authority is appropriate under the law and in light of proposed alternatives.
Crowder, 81 F.3d at 1485.
112. Although the ADA provides a floor of disability protection, the state Legislature has
declared that Washington "law has always, even prior to passage of the [ADA], afforded addi-
tional protections."
113. By its plain language, WLAD, WHPA and chapter(s) 69.51A, 4.96 RCW protects against
violations of rights of the disabled under Title II of the ADA that protect against discriminatory
state or local laws, rules, policies, and/or procedures.
114. The WLAD, provides that, for purpose term ~~~disability' means any mental or physical
disability as defined in 49.60.040(7).
115. Use of naturally derived THC dronabinol for medical purposes in compliance with the
MUCA is not "current unlawful use" of drugs under Washington or Federal law.
116. The DISABILITY for which the Plaintiff PATIENT qualify for protection under WLAD
AND WHPA is not a disorder resulting from the "current unlawful use of controlled substances
or other drugs."
117. Plaintiff PATIENT' respective use of medical cannabis is provided for under and conduc-
ted in compliance with the MUCA and OTHER FEDERAL LAWS..
118. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
APPLICABLE FEDERAL DISABILITY PROTECTIONS
119. F or purposes of those parts of this Complaint that allege violation of and that seek relief
(including but not limited to damages) under federal disability law, the Plaintiff PATIENT suffers
from, have a record of,or is regarded as having a physical or mental impainnent that substantially
limits at least one (1) major life activity including, but not limited to, caring for oneself, perfor-
ming manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and/or
working. If such physical or mental impairment suffered by the Plaintiff PATIENT is episodic or
in remission, the impairment limits a major life activity when active.
120. For purposes of those parts of this Complaint that allege violation of and seek relief
(including but not limited to damages) under federal disability law~ Plaintiff PATIENT has a
disability within the meaning of the SSA, ADA, SEC. 504, 42 U.S.C. § 12102(2)(A),
29 U.S.C. § 794,49 C.F.R. § 37.3, 28 C.F.R. § 35.104, a combination of each of the
aforementioned laws/regulations, or all of them.
121. For purposes of those parts of this Complaint that allege violation of and seek relief
(including but not limited to damages) under federal disability law, Plaintiff PATIENT remains
qualified for protection under the 42 U.S.C. § 12210(d)(1) .
122. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
LOCAL STATUTES AND REGULATIONS
123. MUNICIPALITY has enacted, and is enforcing Vancouver ordinace (M-3988) and
attempting to apply it to Municipal Code (VMC) TITLE 20, its local MC qualifying patient
residential premises DE FACTO ban upon specific disabled persons. In addition to attempting
to change VMC title 20. MUNICIPALITY has enacted laws (contrary to known disability
laws,) including but not limited to ordinance M-3988, that prohibit, restrict, and/or regulate
medical cannabis qualifying patients collectives are referred to as the LOCAL ORDINANCE in
this Complaint. The LOCAL ORDINANCE constitutes a law, rule, policy, and/or procedure
for purposes of WLAD,WHPA, SEC. 11135, Title II of the ADA, SEC. 504, a combination
of each of the aforementioned statutes, or all of them.
124. Defendant MUNICIPALITY's LOCAL ORDINANCE: A) prohibits all
medical cannabis qualifying patient collective gardens at those DISABLED PERSONS
residential premises as delineated in state law; B) includes a policy or policies that effectively
prohibits all disabled persons medical cannabis qualifying patient from accessing collectives at
any private,unlicensed, non commercial residential premises as are defined in state law; and C)
facially discriminates against Plaintiff PATIENT and/or their COLLECTIVE ASSOCIATION
in contravention of MUCA, WLAD, WHPA, SEC. 11135, Title II of the ADA, SEC. 504, a
combination of each of the aforementioned statutes, or all of them.
125. “It is almost unnecessary to say, that what the legislature cannot do directly, it cannot do
indirectly.The stream can mount no higher than its source.”Gelpcke v. City of Dubuque, 68 U.S. 1
Wall. 175 175 (1863)
126. Defendant MUNICIPALITY has and continues to violate federal and/or state disability
civil rights laws that protect the Plaintiff PATIENTS including WLAD, WHPA, SEC. 11135,
Title II of the ADA, SEC. 504, a combination of each of the aforementioned statutes, or all of
them thereby causing Plaintiff PATIENT to suffer damages including but not limited to:
A) physical injuries resulting from Plaintiff PATIENTS' continuous and/or periodic inability to
access physician recommended medication; B) mental and/or emotional injuries resulting from
the enforcement of the LOCAL ORDINANCE; C) financial damages resulting from losses
sustained by Plaintiff lacking any access to private housing because of disability and not
COLLECTIVES which have only 45 plants, the same amount as 3 qualifying patients in one
dwelling; and/or D) other physicial, mental, emotional, and/or financia1 damages to be proven at
time of trial.
127. Through either 1) facial; and/or 2) disparate impact discrimination suffered by Plaintiff
PATIENT and caused by provisions of the LOCAL ORDINANCE an/or proposal of new
LOCAL CODE amendment, Defendant has violated and continues to violate WLAD, WHPA,
MUCA,SEC. 11135, Title II ofthe ADA, SEC. 504, a combination of each of the
aforementioned statutes., or all of them.
128. Defendant MUNICIPALITY's ongoing enforcement of the discriminatory LOCAL
ORDINANCE continues to aggrieve Plaintiff. Accordingly, the injunctive
relief provisions in Wa. Chapter 7.40 RCW apply in this case.
129.It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
COLLECTIVE ASSOCIATION LAW
130.At Section 403 codified at chapter 69.51A.085, the GUILDLINES provide that, '~under
Washington law, medical cannabis patients ONLY may 'associate within the State of
Washington in order collectively for the purpose of producing, processing, transporting,
and delivering cannabis for medical use for medical purposes.' (Chapter 69.51A.085.)"
131.Medical cannabis qualifying patient COLLECTIVE gardens is a group of medical cannabis
patients who associate together for purposes of mitigating their respective patient classmembers'
disabilities and serious illnesses through collective producing, processing, transporting, and
delivering of medical cannabis. Qualifying patients associate together COLLECTIVE' are
established and operates under Chapter 69.51A.085 subject to specific conditions. Not
Chapter 69.51A.140 specific Counties, cities, towns -authority to adopt and enforce pertaining to
the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction:
Zoning requirements,business licensing requirements,health and safety requirements,and business
taxes requirements conditions.
132..Pursuant to the GUIDELINES, qualifying patients associate together COLLECTIVE' are
shared responsability by its patient associate together class-members whom have their valid
documentation at the residencal premises, including Plaintiff PATIENT. See chapter 69.51A.
085 (2) definition.
133.Each and every action and/or inaction complained of herein that has been taken against,
injured, and/or caused damage to plaintiff preclusion of COLLECTIVE association access thus
has been taken against, injured, and/or caused damage to Plaintiff PATIENT.
134. Section 35.130(g) of Title 28 of the Code of Fed. Regs. is part of the ADA
implementing regulations and explicitly prohibits local governments from discriminating
against based on association.
135. Through the LOCAL ORDINANCE, and/or new code amendment proposal Defendant
has violated Plaintiff PATIENT' right to associate as provided under the law.
136.Defendant, through the LOCAL ORDINANCE, has violated 28 C.F .R. § 35.130(g),
WLAD, WHPA, , SEC. 11135, Title II of the ADA, SEC. 504, a combination of each of
the aforementioned statutes, or all of them, by restricting and/or prohibiting the Plaintiff
PATIENT from associating in any private dwelling with other medical cannabis patients for
purposes of mitigating the symptoms and conditions related to Plaintiff PATIENTS' respective
illnesses, disabilities, and/or permanent injuries. Legislatures may not, under the guise of the police
power, impose restrictions that are unnecessary and unreasonable upon the use of private property
or the pursuit of useful activities. Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S.
116, 73 L.Ed. 210, 49 S.Ct. 50, 86 A.L.R. 654 (quoted with approval in Hauser v. Arness, 44 Wn.
(2d) 358, 267 P. (2d) 691).
Zoning measures must find their justification in the police power exerted in the interest of the public.
Euclid v. Ambler Realty Co., supra, 387. "The governmental power to interfere by zoning regulations
with the general rights of the land owner by restricting the character of his use, is not unlimited and,
other questions aside, such restriction cannot be imposed if it doesnot bear a substantial relation to
the public health, safety, morals, or general welfare." Nectow v. Cambridge, supra, p. 188
137. Defendant, through the LOCAL ORDINANCE, has violated MUCA and GUIDELINES
by restricting and/or prohibiting the Plaintiff PATIENT from associating with other medical cann-
abis patients for purposes of mitigating the symptoms and conditions related to Plaintiff
PATIENTS' respective illnesses, disabilities, and/or permanent injuries.
138.The defendant violates the right of association of like minded and is fundamentally eliminated
NAACP v. Alabama, 357 U. S. 449; Effective advocacy of both public and private points of view,
particularly controversial ones, is undeniably enhanced by group association, as the U.S. Supreme
Court hasmore than once recognized by remarking upon the close nexus between the freedoms of
speech and assembly. De Jonge v. Oregon, 299 U. S. 353, 364; Thomas v. Collins, 323 U. S. 516,
530. It is beyond debate that freedom to engage in association for the advancement of beliefs and
ideas is an inseparable aspect ofthe "liberty" assured by the Due Process Clause of the Fourteenth
Amendment, which embraces freedom of speech. See Gitlow v. New York, 268 U. S. 652, 666;
Palko v. Connecticut, 302 U. S. 319, 324; Cantwell v. Connecticut, 310 U. S. 296, 303; Staub v.
City of Baxley, 355 U. S. 313, 321. Of course, it is immaterial whether the beliefs sought to be
advanced by association pertain to political, economic, religious or cultural matters, and local
government action in the name of the federal government which may have the effect of curtailing
the freedom to associate is subject to the closest scrutiny..
138. The courts have consistently held that medical cannabis laws are a medical practice issue
since it does not involve a prescription and is premised on the first amendment rights of patient
and physicians communications for physicians ability to recommend their cannabis use.
(See,Conant v. Walters, 309 F.3d 629, 648 (9th Cir. 2002).
139.It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
ONGOING DISCRIMINATION
140. Each and every action complained of by Plaintiff in this Complaint are part of an ongoing
pattern of discriminatory actions Defendant has taken under either the LOCAL ORDINANCE,
and/or new code amendment proposal, its enforcement, and/or other of its discriminatory laws~
rules, policies, and/or procedures.
141.It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
VIOLATION OF ANTI-DISCRIMINATION LAWS
142.In 2011, during a public meeting, MUNICIPALITY enacted (M-3988) and thereafter the
other parts of LOCAL ORDINANCE,and/or code amendment proposal(s) to its zoning and/or
land use for private residences.
143. Plaintiff is informed and believe and based upon such information and belief allege that
before and after enacting the LOCAL ORDINANCE, officials, officers, and/or employees of
MUNICIPALITY publically stated that the LOCAL ORDINANCE was necessary because,
without the law, medical cannabis collectives and/or dispensaries would proliferate throughout
MUNICIPALITY. The aforementioned public statements are evidence of per se discrimination
under WLAD,WHPA, SEC. 11135, Title II of the ADA, SEC. 504, a combination of each of
the aforementioned statutes, or all of them. (Reg'l Econ. Cmty. Action Program, Inc. v. City of
Middletown (2d Cir. 2002) 294 F.3d 35, 45-46 [RECAP]; Horizon House Dev. Servs. Inc. v.
Twp. ofUpper Southampton (E.n. Pa. 1992) 804 F. Supp. 683, 690 [Horizon]).
144. Plaintiff is informed and believe and based upon such information and belief allege that
before and after enacting the LOCAL ORDINANCE, officials, officers, and/or employees of
MUNICIPALITY publically stated that the LOCAL ORDINANCE was necessary because
medical cannabis collectives and patients cause crime. The aforementioned pubJic statements
are evidence ofper se discrimination under WLAD,WHPA,SEC. 11135, Title II of the ADA,
SEC. 504, a combination of each of the aforementioned statutes,or all of them. (RECAP, 294
F.3d at 45-46; Horizon, 804 F. Supp. at 690).
145. Plaintiff is informed and believe and based upon such information and
belief allege that before and after enacting the LOCAL ORDINANCE, elected officials
officers, and/or employees of MUNICIPALITY publically stated that the LOCAL
ORDINANCE and/or new code amendment proposal was necessary because their constituents
did not want medical cannabis collectives "in their back yard." The aforementioned public
statements of the elected officials are evidence of per se discrimination under WLAD,WHPA,
SEC. 11135, Title II of the ADA, SEC. 504, a combination ofeach of the aforementioned
statutes, or all of them. (RECAP, 294 F.3d at 45-46; Horizon1 804 F. Supp. at 690).
146. Plaintiff is informed and believe and based upon such information and belief allege that
before enacting the LOCAL ORDINANCE, elected officials, officers, and/or employees of
MUNICIPALITY publically stated that the LOCAL ORDINANCE and/or new code
amendment proposal was necessary because their constituents did not want medical cannabis
patients near them or "in their back yard." The aforementioned public statements of the elected
officials are evidence of per se discrimination under WLAD,WHPA, SEC. 11135, Title II of the
ADA~ SEC. 504, a combination of each of the aforementioned statutes~ or all of them.
(RECAP, 294 F.3d at 45-46; Horizon, 804 F. Supp. at 690).
147. Plaintiff is informed and believe and based upon such information and belief allege that
before enacting the LOCAL ORDINANCE, officials, officers, and/or employees of MUNIC-
IPALITY publically stated that the LOCAL ORDINANCE was necessary because medical
cannabis patients are just people who want to get "high" rather than patients with disabilities,
illnesses, or permanent injuries. The aforementioned public statements are evidence of per se
discrimination under WLAD,WHPA~ SEC. 11135, Title II of the ADA, SEC. 504, a combin-
ation of each of the aforementioned statutes, or all of them. (RECAP, 294 F.3d at 45-46;
Horizon, 804 F. Supp. at 690).
148. Plaintiff is informed and believe and based upon such information and belief allege that
before enacting the LOCAL ORDINANCE, officials, officers, and/or employees of MUNIC-
IPALITY publically stated that the LOCAL ORDINANCE was necessary because medical
cannabis patients are generally criminals rather than patients with disabilities, illnesses, or
permanent injuries. The aforementioned public statements are evidence of per se discrimination
under WLAD,WHPA,SEC. 11135, Title II of the ADA, SEC. 504, a combination of each of
the aforementioned statutes, or all ofthem. (RECAP, 294 F.3d at 45-46; Horizon, 804 F. Supp.
at 690).
149. MUNTCIPALITY has ATTEMPTED to adopt a "zoning" code that defines "uses" of
property ("LAND USES") and that regulates LAND USES based on zone and activity at
suspect class of disabled citizens dwellings and/or their association at such dwellings.
150. LAND USES are not comparable to medical cannabis qualifying patient collectives
association but, are for non profit org. as the governor is open to.non profit cannabis org.
include, but are not limited to, pharmacies, methadone clinics, medical clinics, medical
treatment programs, and organic nutritional providers ("COMPARABLE USES )
151. The COMPARABLE USES are not subject to the LOCAL ORDINANCE.
152. The COMPARABLE USES are not prohibited, regulated, or rigidly controlled the same
way that medical cannabis disabled citizens residence association are under the LOCAL
ORDINANCE and/or code amendment proposal.
153. Defendant MUNICIPALITY's total prohibition of all medical cannabis disabled qualifying
patient residentail premises collectives in light of its less rigid regulation of COMPARABLE
USES is evidence of per se discrimination under WLAD,WHPA, SEC. 11135, Title II of the
ADA, SEC. 504, a combination of each of the aforementioned statutes, or all ofthem.(Bay Area
Addiction Research and Treatment Inc.v. City of Antioch (9th Cir. 1999) 179 F.3d 725 [Bay
Area]; New Directions Treatment Servs. v. City of Reading (3d Cir. 2007) 490 F.3d 293, 304
-05 [New Directions D.]
154. After it enacted LOCAL ORDINANCE in combination with the county of clark (as noted
by city legal cousel Ted Gathe), Defendant began enforcing the law by issuing flyovers by law
enforcement to, dispatching police and/or other law enforcement officers to~ and/or detaining,
arresting, or harassing patients of dwellings under the [interlocal contract drug fund]. Including
plaintiff patient.
155.Defendant MUNICIPALITY's enforcement of LOCAL ORDINANCE has caused the
interim,periodic, and/or continuous continued prohibition of specific suspect class of disabled
citizens from accessing any residential premises in the city which has any association called and/
or defined QUALIFYING PATIENTS COLLECTIVE GARDENS conduct and/or activity.
156.Plaintiffs have notified Defendant, through its employees and/or elected officers, that the
LOCAL ORDINANCE and/or new code amendment proposal and enforcement of it violate
WLAD,WHPA,SEC. 11135, Title II of the ADA~ SEC. 504, a combination of each of the
aforementioned statutes, or all of them and that such enforcement causes Plaintiffs to suffer
physical, mental, and/or financial injuries.
157. Plaintiffs have asked Defendant, through its employees and/or elected officers, to cease
enforcement of and to repeal/revise LOCAL ORDINANCE.
158. Despite the aforementioned requests to cease enforcement of LOCAL ORDINANCE
made by Planintiffs to Defendant, Defendant continues to enforce the ordinance using the
methods, mechanisms, and personnel set forth previously in this Complaint.
159. MUNICIPALITY's enactment and enforcement of the LOCAL ORDINANCE as well as
its refusal to stop enforcement, suspend, or repeal the ordinance, is evidence of per se discrimi-
nation under either the WLAD,WHPA, SEC. 504, Title II of the ADA, or all of them. (Bay
Area, 179 F.3d 734-735; New Directions, 490 F.3d 304-05).
160. It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
DENIAL OF USE OF AND ACCESS TO PUBLIC SERVICES
161. The LOCAL ORDINANCE, its enforcement~ and the actions and/or inactions of Defen-
dant MUNICIPALITY as set forth in this Complaint have prevented, hindered,and/or interfered
with Plaintiff PATIENT' ability to access and obtain medical cannabis recommended by Plaintiff
PATIENTS' licensed physician and used by the Patient PLAlNTIFF to mitigate, control, cure,
and/or alleviate symtoms associated with or caused by their respective DISABILITIES.
164. When Plaintiff PATIENT is unable to access and obtain medical cannabis to mitigage,con-
trol, cure,and/or alleviate symtoms associated with DISABILITY,Patient PLAINTIFF movem-
ents, freedom, and functions are severely limited in a manner that prevents meaningful access to
and use of public services including but not limited to roads, sidewalks, libraries, and health care
services.
162. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
THREAT OF IMMEDIATE HARM
163. The Plaintiff PATIENT will suffer immediate and irreparable continuing harm if access to
housing are left shut-down and/or precluded at anyone's residencal PREMISES in that he will
continue to lose access to his day-to-day life medication,he will continually be denied association
with one another at a residence of any COLLECTIVE GARDENS, which provides some type
of health care, counseling, activities, and patient support services, and he will lose immediate
access to public services, including vital health care services.
164. It is the duty of the court "to protect the public from the activity of those who, because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
FIRST CAUSE OF ACTION
(Injunctive Relief Wa. Chapter 7.40 RCW)
165. Plaintiffs re-allege and incorporate by reference all preceding and the remainder of the
allegations set forth in this Complaint as if fully set forth herein.
166. As set forth in this Complaint, the Plaintiffs continue to be aggrieved and harmed by the
actions and inactions of Defendant MUNICIPALITY because MUNICIPALITY continues to
enforce its discriminatory LOCAL ORDINANCE.
167. The MUCA statute requires residential premises associate collective' operate in full
compliance with state law.
168. The harm suffered by the Plaintiffs includes loss of access to medication for individuals
suffering from severe physical disabilities and serious/terminal illnesses. The harm the City will
suffer is deminumis should injunctive relief be granted. Accordingly, the balance of hardships
weighs heavily in favor of Plaintiff.
169. As a result of MUNICIPALITY's continuing discrimination that is harming the Plaintiff and
violates the WLAD,WHPA, Plaintiffs pray for a preliminary injunction pending trial and for a
permanent injunction thereafter under Chapter 7.40 RCW.
170. It is the duty of the court "to protect the public from the activity of those who, because of
lack of professional skills, may cause injury whether they are members of the bar or persons
never qualified for or admitted to the bar."
SECOND CAUSE OF ACTION
(Injunctive Relief Wa. 4.96 RCW )
171. In Washington, only the state is sovereign --cities and counties exist only at
the state's sufferance.Here, MUNICIPALITY is a subdivision of the State of
Washington.
172. Defendant MUNICIPALITY is a subdivision of the state and "not the
federal government.just as in ,., (Qualified Patients Association v. City of Anaheim (2010) 187
Ca1.AppAth 734, 754 [Qualified Patients].)
173. Under the Tenth Amendment, ''the federal government may not compel
States to implement, by legislation or executive action, federal regulatory programs."
(Printz v. United States (1997) 521 U.S. 898, 925; Qualified Patients~ 187 CaLApp.4th at
754, 762.) .
174. Cannabis is alleged to be prohibited under federal law. (21 U.S.C. §§ 801, et seq.)
Washington recognizes that cannabis has medical value and thus provides for its use and
possession as well as provides the collective cannabis cultivation, transportation, and
delivery system set forth in the MUCA. (Wa. long-term health statutes 69.51A et. seq..)
175. In Qualified Patients, the appellate court held the City of Anaheim could
not base its ban of dispensaries solely on federal law.
176. In Qualified Patients, the appellate court held the City of Anaheim, as a
'''creature'' of the state, could not enforce federal law that is inapposite to state law.
177. Plaintiff is informed and believe and based upon such information and
belief allege that's MUNICIPALITY has expended taxpayer money to conduct
investigations of the medical cannabis qualifying patients residential premises within and
notwithin its border under the state/federal drug fund interlocal agreement(s) and,
following such investigations, determined the qualifying patients residential premises collectives
cannot be prohibited/precluded through MUNICIPALITY's local law enforcement agencies
because the residential premises collectives are operating in accordance with state law.
178. Plaintiff is informed and believe and based upon such information and
belief allege that MUNICIPALITY has expended taxpayer money in unsuccessful
attempts to gain any vote of the planning commission recommending that patient collectives
in its border be subjected through civil lawsuits including, but not limited to, nuissance abatement
actions.
179. Plaintiff is informed and believe and based upon such information and
belief allege that MUNICIPALITY, despite it being a subdivision of the State of
Washington and not part of the federal government, has expended taxpayer money to
conduct investigations of residential premises within and outside its border solely for
purposes of providing the results of such investigations to drug task force i.e. the federal
government.
180. The expenditure of taxpayer money by MUNICIPALITY, a subdivision of
the state, to thwart the MUMA (I-692), a voter-passed initiative, which calls upon
the state to implement a system for affordable and safe delivery of medical cannabis
to patients, violates the state constitution and is an illegal expenditure .
181. The expenditure of taxpayer money by MUNICIPALITY to undermine
state voters and state law in a manner that harms disabled and seriously ill patients
violates WLAD,WHPA and is an illegal expenditure.
182. The expenditure of MUNICIPALITY's local/state taxpayer funds to call-in
and assist the drug task force i.e. federal government to enforce federal law when the federal
government conditions its enforcement on: 1) MUNICIPALITY's interlocal agreeing contract(s);
and 2) MUNICIPALITY's expenditures to conduct and complete investigation, violates the
MUCA, and other provisions of state law and is illegal.
183. Plaintiffs have been and continue to be harmed by the aforementioned illegal actions of
MUNICIPALITY that violate the state laws and constitution Accordingly, Plaintiff pray' for
injunctive relief as set forth below.
184. It is the duty of the court "to protect the public from the activity of those who, because of
lack of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
THIRD CAUSE OF ACTION
(Declaratory Relief Wa. Chapter 7.24)
185. Plaintiffs re-allege and incorporate by reference all preceding and the
remainder of the allegations set forth in this Complaint as if fully set forth herein.
186. Defendant MUNICIPALITY contends that LOCAL ORDINANCE is valid
and enforceable.
187. Plaintiffs contend that LOCAL ORDINANCE is void, invalid, and/or
unenforceable. Specifically~ Plaintiff contend' that LOCAL ORDINANCE: 1) violates
WLAD,WHPA,MUCA; 2) conflicts with state law WLAD,WHPA,MUCA ;
and 3) conflicts with state law in contravention of art.XI sec.11, art. I sec. 7, art. I sec. 14 of
the Washington Constitution.
188. Defendant MUNICIPALITY contends that LOCAL ORDINANCE does
not violate WLAD,WHPA,MUCA, the ADA, or SEC. 504. Nor conflicts with state law in
contravention of art.XI sec.11, art. I sec. 7, art. I sec. 14 of the Washington Constitution
189. Plaintiffs contend that LOCAL ORDINANCE is discriminatory, violates
the WLAD,WHPA, the ADA, or SEC. 504, and is void, invalid, and/or unenforceable.
Plaintiff content' that the expenditure of taxpayer funds to call in the drug task force i.e.
federal government to thwart state law constitutes a violation of good faith withi their scope of
assigned duties Defendant contends it may use taxpayer funds to call in the drug task force i.e.
federal government to stop collectives operating fully within the requirements of state law despite
state law providing for those residential uses. Defendant further contends it may use taxpayer
funds to do investigative work that cannot be used and would not operate to show a
violation of state law and then use additional funds to transmit the results of such
investigation to the drug task force i.e. federal government so as to assist the federal government
in stopping all collectives and dispensaries within its border when such closure cannot be
accomplished because the collectives are operating in conformance with state law.
190. Defendant quotes the provisions RCW 36.70A.390 and RCW35.63.200 repeatedly yet,
provides no reasonable emergency to effectively usurp the state exemptions and the state
legislature without ANY "valid" court order to do so.
191. Wa. Chapter 7.48.160 RCW provides that "[n]othing that is done or maintained under the
express authority of a statute can be deemed a nuisance.'~
[Code 1881 § 1238; 1875 p 79 § 4; RRS § 9916.]
192. The command in ordinance M-3988 and any proposals that all medical cannabis qualifying
patients associate collectives in residentail zones are prohibited violates Chapter 7.48.160 RCW ,
WLAD,WHPA, MUCA, art.XI sec.11, art. I sec. 7, art. I sec. 14 of the Washington Constitution.
193. The proposed command In VMC 20, et seq. that al1 medical cannabis qualifying patients
residential premises collective gardens are per se public nuisances violates Chapter 7.48.160 RCW
, WLAD,WHPA, MUCA, art.XI sec.11, art. I sec. 7, art. I sec. 14 of the Washington
Constitution.
194. An actual controversy has arisen and now exists between Plaintiff and Defendant MUNI-
CIPALITY concerning LOCAL ORDINANCE, enforcement of that ordinance, state and federal
disability laws, the City's use of taxpayer funds to call-in and assist federal enforcement of a fed-
eral law by using the drug task force [drug fund],and the parties' respective rights as to each issue.
195. Plaintiffs request a judicial determination regarding the validity of current LOCAL ORD-
INANCE and further request a declaration of the respective rights of the parties.
196. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
FOURTH CAUSE OF ACTION
(Title II, Americans with Disabilities Act 42 U.S.C. § 12101, et seq.)
197. Plaintiffs re-allege and incorporate by reference all preceding and the
remainder ofthe allegations set forth in this Complaint as if fully set forth herein.
198. Title II of the ADA provides that no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity ~ or be subjected to
discrimination by any such entity. (42 U.S.C. § 12132, et seq.; 28 C.F.R. pt. 35; 49
C.F.R. pts. 37 and 38.)
199. Title II of the ADA prohibits public entities from discriminating against
disabled individuals.
200. For purposes of the ADA~ Plaintiff PATIENT remain qualified for
protection under the 42 U.S.C. § 12210(d)(I) exception for ''use of a THC dronabinol isomer drug
taken under supervision by a licensed healthcare professional."
201. Plaintiff IS a qualified individual with disabilities within the meaning of 42 U.S.C. § 12131 and
may seek relief under Title II of the ADA through 28 C.F.R. § 35.l30(g).
202. Defendant MUNICIPALITY is a public entity within the meaning of 42
U.S.C. § 12131(1).
203. Defendant MUNICIPALITY has violated the ADA: A) by intentionally
discriminating against the Plaintiff; B) through overprotective rules, policies,
procedures, and actions; and C) through laws, rules, policies, procedures, and actions that
have a disparate and adverse impact on the Plaintiff thereby denying Plaintiff the
benefits of its services, programs, and activities as more fully set forth above. The
aforementioned discrimination has interfered with, reduced, or prevented access to
medication used by the Plaintiffs to mitigate the symptoms and conditions related to his
(known by MUNICIPALITY) respective disabilities and serious illnesses thereby precluding or
severely restricting Plaintiffs' meaningful access to and use of public services.
204. Defendant MUNICIPALITY's violations of the ADA has harmed and will
continue to harm Plaintiff in the future.
205. Pursuant to the remedies, procedures, and rights set forth in 42 U .S.C. §
12133~ Plaintiffs pray for judgment as set forth below.
206. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
FIFTH CAUSE OF ACTION
(SEC. 504, Rehabilitation Act of 1973 29 U.S.C. §§ 701, et seq.)
207.Plaintiffs re-allege and incorporate by reference all preceding and the
remainder of the allegations set forth in this Complaint as if fully set forth herein.
208. SEC. 504 prohibits recipients of federal funding from denying to persons
with disabilities, on the basis of disability, the benefits provided by the federal funds
recipient, or from subjecting persons with disabilities to discrimination. 29 U.S.C. § 794;
49 C.F.R. Pt. 27.
209. Defendant MUNICIPALITY receives federal funding.
210. Defendant MUNICIPALITY has violated SEC. 504 by discriminating
against the Plaintiffs in the manner described herein.
211. Defendant MUNICIPALITY's violations of SEC. 504 have harmed and
will continue to harm Plaintiff in the future.
212. Pursuant to the remedies, procedures, and rights set forth in 29 U.S.C. §
794a, Plaintiffs pray for judgment as set forth below.
213. It is the duty of the court "to protect the public from the activity of those who,because of lack
of professional skills, may cause injury whether they are members of the bar or persons never
qualified for or admitted to the bar."
SIXTH CAUSE OF ACTION
(Wa. WLAD )
214. Plaintiffs re-allege and incorporate by reference all preceding and the
remainder ofthe allegations set forth in this Complaint as iffully set forth herein.
215.As set forth herein, Defendant MUNICIPALITY receives state funding.
216.As set forth herein, Defendant MUNICIPALITY has discriminated against
Plaintiffs in violation of WLAD.
217. Plaintiffs pray for the relief provide under and referenced in WLAD
including, but not limited to, injunctive relief and relief as set forth below.
SEVENTH CAUSE OF ACTION
(Wa. WHPA)
218. Plaintiffs re-allege and incorporate by reference all preceding and the
remainder ofthe allegations set forth in this Complaint as iffully set forth herein.
219. As set forth herein, Defendant MUNICIPALITY receives state and federal funding.
220. As set forth herein, Defendant MUNICIPALITY has discriminated against
Plaintiffs in violation the Housing Policy Act..
221. It is the duty of the court "to protect the public from the activity of those who, because of
lack of professional skills, may cause injury whether they are members of the bar or persons
never qualified for or admitted to the bar."
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for relief as follows:
l. That this Court declare LOCAL ORDINANCE is preempted by state law and federal law(s)
against disability discrimination;therefore void, invalid, and/or unenforceable;
2. That this Court declare that ordinance M 3988 or any similar proposed ordinance
facially and/or by operation discriminates against the Plaintiffs in contravention of WLAD,
WHPA,MUCA, SEC. 11135, Title II of the ADA, SEC. 504, a combination of each of the
aforementioned statutes, or all of them and are therefore void, invalid, and/or
unenforceable;
3. That this Court declare that LOCAL ORDINANCE facially and/or by
operation discriminates against the Plaintiffs in contravention of WLAD,WHPA,MUCA
Title II of the ADA, SEC. 504, a combination of each of the aforementioned statutes, or all
of them;therefore void, invalid, and/or unenforceable;
4. That this Court declare VMC 20 qualifying patients residential premises collective gardens
preclusion/ prohibition amendments void, invalid, and/or unenforceable ,under Chapter 7.48.160
RCW , WLAD,WHPA, MUCA, art.XI sec.11, art. I sec. 7, art. I sec. 14 of the Washington
Constitution and/or other provisions of state law.
5. That this Court issue a preliminary injunction under chapter 7.40 RCW
prohibiting enforcement of LOCAL ORDINANCE until and through trial in this matter;
6. That this Court issue a permanent injunction under chapter 7.40 RCW
prohibiting enforcement of LOCAL ORDINANCE following trial in this matter;
7. That this Court declare MUNICIPALITY's expenditure of city/state
taxpayer funds to call-in, assist-in, and support federal government enforcement of a
federal law violates state law and contravenes Wa. state constitution;therefore void, invalid, and/or
unenforceable;
8. That this Court issue a preliminary injunction prohibiting Defendant MUNICIPALITY,
MAYOR, and/or CITY FINANCIAL OFFICER from allowing or authorizing
MUNICIPALITY to further expend taxpayer funds to call-in, assist-in, through the drug task
force[drug fund] interlocal contract supporting federal government enforcement of a federal law
that is contrary to state law under MUCA;
9. That this Court award money damages in an amount to be proven at time of
trial under applicable provisions ofthe Rehabilitation Act (SEC. 504);
10. That this Court award money damages in an amount to be proven at time of
trial under applicable provisions of the federal ADA;
11. That this Court find that LOCAL ORDINANCE and the actions of MUNICIPALITY violate
Chapter 7.48.160 RCW , WLAD,WHPA, MUCA, art.XI sec.11, art. I sec. 7, art. I sec.14 of the
Washington Constitution and/or other provisions of state law and issue an injunction barring
enforcement of the ordinance pending trial;
12. That this Court award such additional, alternative, or further relief as maybe just, proper, and
equitable.
13. That this Court find that LOCAL ORDINANCE and the actions of MUNICIPALITY there-
fore prohibits any activity allowed by state law when conducted pursuant to a valid recommend-
ation of a medical practitioner for the use of cannabis for medical treatment at or on property in a
zoning district for private, non commercial use, and causes by design such pain and agony as to be
equivalent of that produced by torture. Because it prohibits what state law permits and causes
substantial bodily harm, and even has the potential of causing death to a suspect class of citizens, it
is in violation of article XI, section 11, article I section of the Washington State Constitution.
14. This court is empowered to enter a declaratory judgment under Chapter RCW 7.24 et. Seq .
Injunctive relief is authorized by RCW 7.40.010,.050 with a low burden ofproof threshold of actual
threat or actual harm .020. Thus, any further relief is within the proper discretion of the court
specifically authorized by .080. The court in its sound discretion may waive the required bond in
certain situations.
15. Plaintiff requests discretion of the court for waiver of said bond with an order from the court
signed and delivered to the clerk. Said plaintiff is a disabled man with scant financial means. The
burden of reimbursement to the City for costs associated herein would undoubtedly have dire
consequences to the plaintiff’s housing, health, safety and welfare.
16. That this Court find It is the duty of the court "to protect the public from the activity of those
who, because of lack of professional skills, may cause injury whether they are members of the bar
or persons never qualified for or admitted to the bar."
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN THE COUNTY OF CLARK
NO.
JAMES E. BARBER SR. COMPLAINT FOR DECLARATORY
PLAINTIFF, AND INJUNCTIVE RELIEF
WLAD ACTION RCW 49.60
TITLE II ADA VIOLATION
HOUSING DISCRIMINATION
DAMAGES 4.96 RCW
BOND WAIVER REQUEST
(M-3988/VMC 20)
Civil Rule 65
JURY TRIAL DEMAND
v.
CITY OF VANCOUVER, WA. ET. AL,
A WASHINGTON STATE POLITICAL
SUBDIVISION. ,DOES 1 TO 50, inclusive
DEFENDANT(S),
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DECLARATION OF JAMES E. BARBER SR.
-----------------------------------------------------------------------------------------------------------------------------------------------
I, JAMES E. BARBER SR declare and state as follows:
1. I am at least 18 years of age and otherwise competent to make this declaration hereby declare:
2. I am the declarant and also a resident of the State of Washington.
3. On October 28, 2010 the social security administration found the palintiff suffers from 8 qualifying
conditions under federal laws retroactive to January 1, 1999 and listed plaintiff as both 100%
disabled under SSD and SSI and unemployable.
At the hearing, the ALJ conducted an indepth discussion of the plaintiffs cannabis use and approved
of such use upon viewing the plaintiffs state derived medical records and medcial cannabis
recommendations from both washington state and oregon state. The plaintiffs washington state
medical cannabis recommendation was signed in 2009 and does not have any expiration date or
start dates, the legislature has made these valid recommendations a specific grandfather status.
Plaintiffs conditions are perminent and not subject to any cure. No other known medicine addresses
plainfiffs medical conditions as found by the social security ALJ.
4. Attached hereto as Exhibit 1 is a true and correct copy of City of Vancouver M-3988, staff
report and amendments dated 07/16/12, 07/16/12, and 09/12/11. Noted in the staff report
07/16/12 page 1 paragraph 3 quote: " The Act delegates to cities the authority to impliment
zoning requirements, business license requirements, and health and safety requirements as those
requirements relate to the production, processing, or dispensing of medical marijuana.Specifically,
the Act would allow local government to address ambiguities concerning the location and
operation of collective gardens.
Page 2 Advantage(s):1.Provides the City with the time neccessary to complete work on proposed
set of use and development standards for collective gardens to ensure the health, safety, and
welfare of the community is adequately protected; and 2. Provides quaifying medical marijuana
patients with a clear process that is in accordance with the new Act.
Disadvantage(s): May initially limit qualifying medical marijuana patients from immediately
establishing collective gardens as that term is defined in the Act but following the enactment of
appropriate regulatory requirements will establish a clear process for establishing such gardens as
allowed by law.
5. Attached hereto as Exhibit 2 is a true and correct copy of City of Vancouver staff report and
proposed amendment recommendation(s) to the City Planning Commission dated October 11, 2012
and slated for public hearing on October 23, 2012.
Front page 1:
Project name Medical Marijauna Collective Gardens Code Amendments
PRJ2012-1505/CPZ2012-00008/SEP2012-00032
Request To hold a public hearing and recommend approval to the City Council of the text
amendments to VMC Title 20 (Land Use and Delelopment Code) that will govern the siting and
operational standards of medical marijuana collective gardens, as allowed by state law.
neighborhood associations All
Page 2 SUMMARY
Paragraph 1 (2nd) sentence states, quote: In 2011, the Washington State Legislature passed
ESSB 5073, which adopted a number of additional provisions related to medical cannabis, including
regulations for marijuana dispensaries and a preclusion of local municipal governments from
prohibiting collective gardens (e.g. grow operations that also may include the retail sale of
medical cannabis). Chapter 69.51A.085 has no such provisions to allow for retail sale of medical
cannabis. The Act does not mention or even aver to dispensaries being on the same preempted
and thus vetoed commercial business conduct and/or activity threshhold footing as a licensed
dispenser located in section 1102 codified at chapter 69.51A.140.
Paragraph 3 states, quote: On July 18, 2011 the City Council enacted a six-month moratorium
on collective gardens being established in the City of Vancouver, and the moratorium was extended
to December 31, 2012 in order to determine appropriate zoning districts, siting criteria, and
standards to address potential secondary impacts(noise, lights,odors,ect.).
Paragraph 4 states, quote: The proposed set of amendments to VMC Title 20 :"Land Use and
Development Code" would allow collective gardens, as defined by state law, to locate in the IL,
Light Industrial District subject to a number of location restrictions and special standards, including:
must be located entirely indoors within a secure structure; must be located no closer than 1,000
feet to any school, daycare, community center, park, residential care facility, or other collective
garden... members of the collective must comply with the registration and identification
requirements.
Paragraph 5 states, quote: The topic of medical marijuana collective gardens was discussed by
the planning commission at a work session on june 12,2012 prior to extention of the moratorium.
The attached draft ordinance (Exhibit C) reflects the most recent proposed changes reviewed by
the Planning Commission at their workshop on October 10,2012.
MEMORANDUM
This memorandum highlights the changes since the ordinance was presented to the Planning
Commission in workshop on October 9,2012. The changes are as follows:
6. Proposed New Subsection (P) 20.883 (page48).
The addition sets hours for distribution of cannabis from 7:00 am to 8:00 pm.
Chapter 69.51A.085 is berif of the notion, intent, implication(s) or words of distribution of cannabis
to be having hours of restricting, precluding disabled qualifying patients members class
association(s). This is evidence of 1st amendment encroachment and text book violation. This is
distinct text book discrimination and violates due process, and equal protections.
6. Attached hereto as Exhibit 3 is a true and correct copy of emails sent to various City of Vancouver
officials and employees informing them they have no purview over collective gardens and what
they are doing is illegal by torturing and assaulting qualifying cannabis patients. I also informed the
same persons the ordinance is unconstitutional.
7. Attached hereto as Exhibit 4 is a true and correct copy of the "cities and clark county" [drug fund]
interlocal government contract which violates washington state cannabis act, WHPA, WLAD,
ADA, FHAA, SEC. 504 as the drug task force members, and/or associations are mandated to
follow federal drug laws which do not recognize state laws on the lawful use of cannabis yet, these
persons are all city,town,county and/or state employees. These employees swore upon employment
to uphold Washington state laws now are charged with enforcing federal laws, not state laws as
required by the state and/or local government which employees them. SEC. 504 requirements are
written ito each contract as mandated to follow.
8. Attached hereto as Exhibit 5 is a copy of Chapter 69.51A.025, 040, 085, .130,.140 RCW.
Chapter(s) 35.63.220, 35A.63.240, 36.70A.410, 36.70.990 RCW.
I declare under penalty of perjury under the laws of the state of washington that the foregoing is
true and correct.
Dated this 30th day of October, 2012, at Brush Prairie, Washington.
____________________
James E. Barber Sr.
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The following transactions happened 11/8/12 in Case # 3:12-cv-05961-RBL
Minute order regarding discovery and depositions..
It is hereby ordered : discovery and depositions
order regarding initial disclosures, joint status report and early settlement
joint status report due 2/6/13
frcp 26f conference deadline is 1/23/13
initial dislosure deadline is 1/30/13
by Judge Ronald B. Leighton
--------------------------------------------------
James v. City of Costa Mesa amended 11/1/12
Footenote: 8
“ ‘If the statutory language is unambiguous and the statutory scheme
is coherent and consistent,’ judicial inquiry must cease.” Miranda v.
Anchondo, 684 F.3d 844, 849 (9th Cir. 2012) (quoting In re Ferrell, 539
F.3d 1186, 1190 n.10 (9th Cir. 2008)). If the statute is ambiguous, how-
ever, “we may use canons of construction, legislative history, and the stat-
ute’s overall purpose to illuminate Congress’s intent.” Probert v. Family
Centered Servs. of Alaska, Inc., 651 F.3d 1007, 1011 (9th Cir. 2011)
(quoting Ileto v. Glock, Inc., 565 F.3d 1126, 1133 (9th Cir. 2009)) (inter-
nal quotation marks omitted). “We may also look to other related statutes
because ‘statutes dealing with similar subjects should be interpreted har-
moniously.’ ” Tides v. Boeing Co., 644 F.3d 809, 814 (9th Cir. 2011)
(quoting United States v. Nader, 542 F.3d 713, 717 (9th Cir. 2008)); see
also Tidewater Oil Co. v. United States, 409 U.S. 151, 157-58 (1972)
(stating that it is essential that we place the words of a statute in their
proper context by resort to the legislative history,” including related con-
gressional activity addressing the same subject matter).
-------------------------
United States v. Butler, 297 U.S. 1, 66 (1936); Knowlton v.
Moore, 178 U.S. 41, 59-60 (1900) (holding that Congress can tax inheritances, even if it could
not regulate them under the Commerce Clause).
To be sure, Congress must use its power under Article I, Section 8, Clause 1, to “provide
for the . . . general Welfare.” As the Supreme Court held 75 years ago with regard to the Social
Security Act, however, decisions of how best to provide for the general welfare are for the
representative branches, not for the courts. Helvering v. Davis, 301 U.S. 619, 640, 645 & n.10
(1937); see South Dakota v. Dole, 483 U.S. 203, 207 (1987).
Generally, in construing the Social Security Act, our court has favored that interpretation
which gives effect to the beneficent purposes of the Act. Ewing v. Black, 172 F.2d 331, 335,
6 A.L.R.2d 948 (C.A.6 1949); Lietz v. Flemming, 264 F.2d 311, 313 (C.A.6 1959).
See also Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L. Ed. 1307 (1937).
The beneficent purpose of Congress in the enactment of the Social Security Act must not be ignored.
After painstaking investigation and elaborate research through experts, Congress reached the conclusion,
upon which it acted, that the award of old-age benefits is conducive to the general welfare.
See opinion of Mr. Justice Cardozo in Helvering v. Davis, 301 U.S. 619, 641-645, 57 S.Ct. 904, 909,
81 L.Ed. 1307, 109 A.L.R. 1319, where the legislative history of the Social Security Act is reviewed.
In his logical reasoning, the eminent jurist did not strain eloquence when he said: "The hope behind
this statute is to save men and women from the rigors of the poor house as well as from the haunting
fear that such a lot awaits them when journey's end is near."
Congress acted well within its authority to integrate the provision into the interrelated revenue and
spending provisions of the Act, and to treat it as necessary and proper to the overall goal of advancing
the general welfare. See Buckley v. Valeo, 424 U.S. 1, 90 (1976) (grant of power under General Welfare
Clause “is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause”).
