BEFORE THE WALLA WALLA HEARING EXAMINER. COMES NOW the Petitioner, La Ganja Farms, LLC, by and through its attorney of

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1 BEFORE THE WALLA WALLA HEARING EXAMINER LA GRANJA Appellant, v. WALLA WALLA COUNTY Appellee. NO. APP--00 (NOV--0) MOTION TO RECONSIDER HEARING EXAMINER S DECISION AND ORDER COMES NOW the Petitioner, La Ganja Farms, LLC, by and through its attorney of record, and pursuant to Walla Walla County Code..00 makes the following motion for reconsideration. I. RELIEF REQUESTED The Petitioner moves the Hearing Examiner to overturn the Decision and Order in the above captioned case. II. STATEMENT OF FACTS In its February, Order and Decision, the Hearing Examiner determined Petitioner violated WWCC..0, which reads, in pertinent part, Any recreational marijuana land use including, but not limited to, production, processing, storage, and retail sale of recreational marijuana and recreational marijuana-derived products are prohibited land uses in unincorporated Walla Walla County. (emphasis added). Page - 1- P.O. Box 0 1 rd Ave S.W. Ephrata, WA (0) - / Fax (0) -

2 III. STATEMENT OF ISSUES First, according to WWCC..00, Standards for Granting Relief, the Hearing Examiner must grant relief when Petitioner establishes any one of the following applicable standards: 1. The body or officer that made the decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;. The decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by the administrative decision maker with expertise;. The decision is not supported by evidence that is substantial when viewed in light of the whole record before the hearing body;. The decision is a clearly erroneous application of the law to the facts; or. The decision is outside the authority or jurisdiction of the body or officer making the decision. Petitioner met every one of these standards in proving that the marijuana produced on its property was medical. Thus the Hearing Examiner s decision must be overturned. Second, the Examiner has no jurisdiction to make any determination regarding the County s claims for monetary penalties. The County s Notice of Violation and Order (NOVO) dated August, did not involve any claims or notice of penalties. LaGranja timely appealed this notice which effectively stayed any additional proceeding in regards to the claimed violation. Any subsequent attempts to assess any penalties were ultra vires to the County s authority and outside of the scope of the issues raised in this appeal. IV. EVIDENCE RELIED UPON The Petitioner relies upon the record of appeal. Page - - P.O. Box 0 1 rd Ave S.W. Ephrata, WA (0) - / Fax (0) -

3 V. AUTHORITY The critical issue ignored in the Hearing Examiner s order, is the fact that the laws governing the production of marijuana changed on July 1,. In a broad stroke, the change in the law requires only I-0 licensed producers (growers) to produce medical marijuana and that medical marijuana can only be sold in licensed I-0 stores. In reaching the conclusion that Petitioner violated the prohibition in WWCC..0, the Hearing Examiner clearly relied on the evidence that Petitioner produced its marijuana under I-0 and sold its marijuana to I-0 retailers. The Hearing Examiner s uses the term I-0 to represent recreational and not medical marijuana. However, since the change is state law governing the production and sale of medical marijuana, this reliance is clearly in error and an erroneous application of the facts to the current law. The Key Finding in No. The Hearing Examiner relied on Finding No. that Petitioner made sales from November through October to licensed I-0 retailers. (Decision and Order at p. ) Everyone must agree, that without this finding there is no violation of WWCC..0, for it is the only evidence that the County argues as proof the marijuana Petitioner sold was recreational. Again, WWCC..0 only prohibits the production and sale of recreational marijuana, and the County Commissioners are on record stating that the prohibition did not interfere with the production and sale of medical marijuana. The Hearing Examiner erroneously interprets the term I-0 to mean recreational marijuana in order to uphold the County s NOVO. However, that is an erroneous interpretation of state law. Since the passing of SB 0, Medical Marijuana Regulation which took effect on July 1,, only licensed I-0 producers can produce medical marijuana and only I-0 Page - - P.O. Box 0 1 rd Ave S.W. Ephrata, WA (0) - / Fax (0) -

4 retailers may legally sell medical marijuana. The law essentially rolled two separate legal structures governing marijuana, that is medical and recreation, into one program I-0. So while it is true that Petitioner sold marijuana to I-0 stores, that marijuana cannot be assumed to be recreational marijuana as the County and the Hearing Examiner have done. The only evidence in the record of what the marijuana actually is comes from Petitioner who has steadfastly testified that the marijuana is medical. Next the Hearing Examiner s Decision and Order has no significance. The Decision and Order require Petitioner to bring the property into compliance. Again, WWCC..0 only prohibits the production and sale of recreational marijuana. The mere act of Petitioner declaring that all the marijuana grown and sold on the property as medical, as Petitioner has unequivocally and consistently asserted in this appeal, brings his property in compliance. The County s continued enforcement of the ordinance as enforced against Petitioner violates the very ordinance, as the laws governing the production and sale of marijuana in the State of Washington require all medical marijuana to be produced by I-0 licensees and sold to I-0 retailers. The Examiner seemed to base this decision on the fact that the medical marijuana issue was not raised for months. However, there is no rule or regulation that would require the Appellant to raise the defense at any sooner date. Furthermore, there is no rule that would result in a waiver of this argument because of any delay in raising the same. The Examiner s opinion seems to create a waiver rule where none exists in the ordinance or Administrative Procedures Act. To the extent that the Examiner has implicitly ruled that this defense has been waived, her opinion clearly exceeds her authority. There is simply no evidence in the record to support the County s argument that the marijuana produced by Petitioner was recreational and not medical. Therefore, the Hearing Page - - P.O. Box 0 1 rd Ave S.W. Ephrata, WA (0) - / Fax (0) -

5 Examiner must overturn its order as the order will not hold up under judicial scrutiny, which Petitioner will immediately seek in addition to the recovery of all attorneys fees and costs. SUBMITTED ON February,. JERRY J. MOBERG & ASSOCIATES JERRY J. MOBERG, WSBA # PATRICK R. MOBERG, WSBA # Attorneys for La Granja Farms Page - - P.O. Box 0 1 rd Ave S.W. Ephrata, WA (0) - / Fax (0) -

6 CERTIFICATE OF SERVICE I certify that on this date, I sent for delivery a true and correct copy of the document to which is affixed by the method indicated below and addressed to the following: Jesse D. Nolte Office of the Prosecuting Attorney 0 West Alder, Suite 1 Walla Walla, WA -0 jnolte@co.walla-walla.wa.us X U.S. MAIL PROCESS LEGAL SERVER HAND DELIVERED EXPRESS DELIVERY FACSIMILE Walla Walla County Community Development Department lprentice@co.walla-walla.wa.us nbaston@co.walla-walla.wa.us X U.S. MAIL PROCESS LEGAL SERVER HAND DELIVERED EXPRESS DELIVERY FACSIMILE DATED February, at Ephrata, Washington. Dawn Severin, PARALEGAL Page - - P.O. Box 0 1 rd Ave S.W. Ephrata, WA (0) - / Fax (0) -