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Ohio Legalizes Medical Marijuana

Governor Jon Kasich signed the bill into law this week, making Ohio the 26th state to legalize marijuana for medicinal purposes. The law will require a physician’s recommendation to legally use the drug and, according to the New England Journal of Medicine, at least 76% of physicians surveyed approved of the use of medical marijuana, so it shouldn’t be too hard for an Ohioan to find a doctor that will sign off on their need for medical use.

Currently, there are no commercial cultivators within the state, which means patients will have to go out of state where it’s already legal until Ohio has time to catch up. Operations must be up and running within two years, but proponents of the bill believe it will happen much sooner. It will likely take the state at least a year before qualified patients can purchase the drug from the comfort of their home state.Ohio Pot

Ohio’s new law is relatively strict and will be heavily regulated, especially when compared to states like California where there are no specific conditions on the use of medical marijuana. Smoking marijuana will still be illegal in Ohio, but the change will allow patients to use vaporizers, edibles and oils. Despite the fact that patients will not be able to grow their own plants at home, the law will provide patients with a prescription a valid affirmative defense to possible possession charges.

Polls showed 90% of Ohioans support medical marijuana and, fearing a less restrictive constitutional amendment, lawmakers pushed the bill through, giving them the power to craft their own rules and regulations regarding growth, sale, and use of medical marijuana.

Qualifications to Obtain a Prescription Will Be Heavily Regulated

Growth, sale, and use will be heavily regulated by the Ohio State Pharmacy Board, the State Medical Board, and the Department of Commerce. Additionally, part of that regulation will include a board of 14 members that recommend rules to the foregoing regulatory agencies.

Despite giving a board regulatory and policymaking powers, all dispensaries must be licensed by the state and any physician wanting to write such a prescription will be required to complete some form of continuing education about marijuana before they register with the state. There will also be some sort of patient registration process likely put into effect.

Only certain medical conditions will qualify a patient to be allowed medical marijuana. The law, however, will not exempt users from employee regulated drug-free policies, meaning, even though you have a prescription, your company can still terminate for marijuana use if it violates their drug policy.

The list of conditions that qualify for medical marijuana in Ohio are:

  • Amyotrophic lateral sclerosis (ALS)
  • Alzheimer’s
  • Cancer
  • Chronic traumatic encephalopathy (CTE),
  • Crohn’s disease
  • Epilepsy or another seizure disorder
  • Fibromyalgia
  • Glaucoma
  • Hepatitis C
  • Inflammatory bowel disease
  • Multiple sclerosis
  • Pain that is either chronic and severe or intractable
  • Parkinson’s disease
  • Post-traumatic stress disorder
  • Sickle cell anemia
  • Spinal cord disease or injury
  • Tourette’s syndrome
  • Traumatic brain injury
  • Ulcerative colitis

The maximum prescription is 90-day supply. When the plan is eventually grown in the state, the marijuana flowers cannot contain more than 35% THC and extracts must be below at least 70%. Marijuana laced products that are especially attractive to children, like gummi bears, are strictly prohibited.

How Does Ohio’s Law CompareWith Other States?

Only 4 states have legalized marijuana for recreational use, but 25 other states have some form of medical marijuana laws on the books. Besides small nuances, Ohio’s policies won’t be much different than others. Most require a prescription and most with serious medical conditions can obtain that prescription.

Alaska, Hawaii, Montana, Nevada, and Oregon don’t currently allow in-state dispensaries. Ohio will eventually once the state can get its infrastructure up and running. Michigan doesn’t allow dispensaries on a state level, but does allow localities to create ordinances to both allow and regulate dispensaries. Every state but Washington allow patient registries or ID cards for those allowed to use the marijuana.

Among the stricter states that have laws regarding medicinal marijuana, use is limited. For example, Florida allows low levels of THC, below .8%, for cancer, seizure, and/or other medical conditions that produce chronic symptoms, but only 5 registered nurseries across the state can sell the product, making it less accessible than other states. Alabama allows the University of Alabama to conduct research using low-level THC products for treating seizure disorders for a period up to 5 years.

The law only allows the University to give the treatment to patients that have debilitating epileptic conditions or life-threatening seizures. Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Tennessee have similar University research policy laws in place.

Can Donald Trump Legally Require Judge Gonzalo Curiel to Recuse Himself?

Donald Trump is making headlines again for making controversial statements. This time, his statements refer to Judge Gonzalo Curiel’s ethnicity. Judge Gonzalo Curiel is the judge overseeing the fraud case against the now defunct Trump University in San Diego. Trump has made several statements indicating the judge cannot rule impartially.

In a recent interview in the Wall Street Journal, Trump said, “U.S. District Judge for the Southern District of California Gonzalo Curiel has an ‘absolute conflict’ in presiding over the litigation given that he was ‘of Mexican heritage’ and a member of a Latino lawyers’ association.” Throughout Trump’s presidential campaign, he repeatedly and unapologetically claims he will build a wall to seal off the border between Mexico and the United States if elected president.

Trump’s statements have sparked outrage from Democrats and Republicans alike, and Trump hasn’t backed down. He asserts that his statements were “justified” and were “misconstrued.” Trump claims that Judge Gonzalo Curiel’s heritage alone does not make him incapable of being impartial, “but, based on the rulings that [he has] received in the Trump University civil case, [Trump] feel(s) justified in questioning whether [he is] receiving a fair trial.”

Regardless of the validity of Trump’s statements, it calls into question when a party to lawsuit can win a motion to remove a judge from his or her case.

Grounds for Judge Recusal

Motions to recuse or disqualify judges have been made for various reasons, but most often, they are predicated upon a claim that the judge is biased in favor of one party or against another. Other reasons to challenge a judge’s appointment include when the judge has an interest in the subject matter, bias because of the judge’s background or experience, personal knowledge about the parties or the facts of the case, or inappropriate conduct. Judge Gonzalo Curiel

In most jurisdictions, a judge can be disqualified “for cause.” This requires that the party who wants a new judge must show either a basis for disqualification exists by statute or that a reasonable person would question the judge’s ability to be impartial in presiding over the case.

Still, many other jurisdictions have laws on the books which allow parties to seek disqualification on a “peremptory” basis, without making any showing of cause. It is often referred to as “peremptory challenge” or “peremptory disqualification.” In these jurisdictions, the judge is disqualified automatically so long as the challenge is timely filed and the proper procedure is followed. In other words, the judge can be disqualified without making any showing for cause.

It is important to note that California allows peremptory challenges of judges. In that regard, it is possible for Trump’s attorneys to file a peremptory challenge of Judge Ganzalo Curiel so long as it is timely filed in accordance with procedure.

Can A Judge’s Heritage Qualify as “For Cause” Disqualification?

Trump’s legal team has not yet filed a motion to recuse Judge Ganzalo Curiel. Even if they do, it is unclear whether their motion would be timely filed to qualify for a peremptory challenge. If he did not timely file a peremptory challenge, Trump’s attorneys must file a motion to recuse “for cause.”

Assuming Trump files a motion for recusal and bases it on Trump’s allegations that Judge Ganzalo Curiel is inherently unable to rule fairly because of his Mexican heritage, the motion likely would not be granted. A judge may be removed if they demonstrate an inherent bias toward one party.

At this time, Trump’s main assertion of bias is based on Judge Ganzalo Curiel’s heritage alone. He does not allege a pattern of unfair and unfounded rulings against him, or that the judge has made any affirmative statements that lead Trump to believe there is a bias. Further, because Trump’s statements have been made so public, any motion claiming bias would carry an underlying tone of racial prejudice. Recusal will not be granted simply because one party believes the judge’s heritage could play a role in the ruling without additional evidence.

Evidence of Musical Preference Used in Trial to Presume Gang Membership

What if you were found guilty of a crime simply on your taste in music? Washington Supreme Court just overturned the convictions of 3 men on the basis that their 5th Amendment rights were violated when tainted evidence was used to convict them in trial. However, the real hooker is that the State used evidence of the defendants’ musical preference to bolster their theory that the men were gang members.

The 3 men were pulled over on account of being suspects in a drive-by shooting. When the men were pulled over, police found 2 red bandanas, cans of beer, and marijuana paraphernalia, but no guns or shell casings as they had expected to find. Officers thought the men had thrown a weapon out of the car prior to being pulled over, but no firearm was ever found and the men were arrested and charged with 3 counts of first degree assault while armed with a firearm with an intent to benefit a criminal street gang. The 3 men were charged together—the prosecution’s theory was that the shooting was in retaliation of rival gang members.

The victim of the drive-by shooting was a member of a local gang, while the defendants were affiliated with a rival gang who generally wore red; hence the officer’s emphasis on the red bandanas found. The State’s theory was that the shooting for which the defendants were on trial was a result of gang rivalry and, as a result of that theory, the State used affirmative statements of gang involvement made by the 3 defendants during the jail booking process. Handcuffs

Further, the State found a song by Los Tigres Del Norte stored on one of the defendant’s phones and used that evidence at trial. What was the State’s theory on this that tied them to the shooting? That that musical preference alone was evidence of gang involvement. Now, it was ultimately the use of those statements made during the jail booking process that got the men’s case overturned on account of violating their 5th Amendment rights, but the Court’s opinion pointed out that it was unsettled by the fact that the State used the defendant’s musical preference against them.

Are Persons Associated With Gang Members Guilty By Association?

Definitely. Whether warranted or not, a stereotype exists. Is it unconstitutional? Is it the same as racial profiling? Maybe not, but it raises some questions about programs such as ones in California where guilt is prevalent simply by association with gang members.

California’s Street Terrorism Enforcement and Protection (STEP) Act makes it a crime simply to participate in a street gang and assist in any felony criminal conduct. Once associated with a gang, your name goes in a database used by state and local law enforcement officers and that information can be used to add a sentence enhancement on top of any sentence handed down for an underlying felony. The state will consider any criminal act as an act committed for and on behalf of the gang regardless of whether it was gang related or not. The minimum enhancement is 6 months, but some crimes can carry as much as a 15-year enhancement.

Some law enforcement officials typically defend these type of databases on account of “good detective work,” arguing that these type of databases are keeping tabs on gang members, not law abiding citizens, but since it’s up to officers to determine whether someone is in a gang based on a handful of criteria, it’s possible there are persons on the list that aren’t actually part of a gang and never have been.

Presumptions of Guilt Based on Cultural Preferences

Criteria used for these type of databases aren’t based on hard-lined rules—it varies from jurisdiction to jurisdiction. Although officers in California must go through training at a school for gang officers, the criteria and tools used to make these decisions aren’t precise and mistakes are made.

Officers will take note of how a person is dressed, any identifying marks and/or tattoos, where you live, who you hang out with, or who your family is and can decide based on one encounter whether or not to include a person into a gang database. Sound familiar? This time, musical preference was used for a presumption of guilt at trial. Although Washington doesn’t have the same STEP Act as California, it’s another example of how easily information about a person’s cultural associations, like music, can be twisted.

It’s a fact that gang members commit crimes and it’s not databases like ones under STEP that are unconstitutional in and of themselves, but there seems to be more of a constitutional issue with the methods in which the data is collected. Isn’t profiling someone as a gang member and based on their cultural preferences, like music choice, the same as racial profiling, which we know is unconstitutional?

Added-Sugar Is Facing Regulation Like Tobacco, and It’s About Time

In June 2015, the City of San Francisco voted to put warning labels on all advertisements for drinks with high amounts of sugar. The new law is the first in the United States. Soon, brands like Coca-Cola, Pepsi, Gatorade, and other similar companies will need to put a warning label on all advertisements for their added-sugar drinks.

The warning label will look like this:

WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.

But the companies are fighting back. With help from the American Beverage Association (“ABA”), companies that produce sugary drinks argue that the law violates their right to free speech.

But does it violate their First Amendment rights? Is a law mandating warnings for a particular product unlawful?

Addictive Products that Require a Warning: Tobacco

The focus of the new law and debate are drinks with added-sugar. The City of San Francisco believes their citizens need to be informed or reminded that popular drinks have long-term, negative health effects. But worst of all, studies have shown that sugar is addictive, much like tobacco. Soda Warning

In 2010, the largest tobacco companies sued the United States and the Food and Drug Administration (“FDA”) for infringing on the companies’ First Amendment rights. But the tobacco companies lost. The courts sided with the FDA. The court found that the U.S. government has a significant interest in protecting its citizens from the dangers of tobacco, so the government’s significant interest overrides the tobacco companies’ right to free speech.

The lawmakers in San Francisco make the same arguments to impose a mandatory warning on advertisements of sugary drinks. Drink companies may argue that sugar does not rise to the level of danger posed by tobacco. After all, it was tobacco’s severe health consequences that resulted in the government overriding tobacco companies’ right of free speech.

But what does the science say? How have the courts been understanding advances in medicine?

Consensus is that Sugar “Addiction” is Real

Studies conducted by independent researchers discovered that sugar addiction behaves just like drug addiction. They found that sugar’s effect on the brain and behavior of consumers is identical to an addiction to alcohol and illegal drugs.

Excessive sugar consumption is also being linked to a wide number of life-threatening illnesses. Illnesses like diabetes, heart disease, high blood pressure, stroke, and respiratory issues can come from excessive sugar consumption. Those are some of the leading causes of death in the nation and they can all be caused by excessive consumption of sugar.

The high number of deaths due to tobacco use is what spurred the U.S. government to enforce mandatory warning labels on tobacco products. But research shows us that added-sugar may be contributing to the staggering loss of life due to preventable illnesses.

Government initiatives to battle childhood obesity focuses on cutting down on sugar consumption. A study in 2012 determined that 17% of children/adolescents, from ages 2 to 19, are obese. The study determined that 1 in 3 children are either overweight or obese.

So are drinks companies going to face the same harsh regulation as tobacco companies?

In Time, Added-Sugar Products May Face Similar Regulation

On May 18, 2016, the ABA was denied its request for an injunction by the federal court. The case still must be decided on its merits, but denying a preliminary injunction is not looking good for drinks companies.

At the moment, the health warnings will only cover around 20% of advertisements in the city. They will not be required on television ads, radio ads, on the beverages, or menus.

Now, the ABA’s lawsuit must continue to the trial phase to determine whether the law is unconstitutional. But given the massive amount of evidence that added-sugar is as lethal as tobacco use, it is unlikely the ABA will prevail.

Blind Man Claims McDonald’s Drive-Thru Policy Discriminates Against Visually Impaired

Ever notice how you can’t use a drive-thru at a fast-food restaurant if you’re on foot? A blind man is suing McDonald’s in a class-action suit for violating Title III of the Americans with Disabilities Act of 1990 (ADA) because he was unable to use their drive-thru during late-night hours.

Scott Magee is a blind Louisiana resident who, when he tried to order food from McDonald’s, claims he was laughed at and refused service when he tried to order the food from the drive-thru window. The basis for his claim?  Well, that McDonald’s doesn’t allow equal access to the goods and services they provide during late-night hours.  The only reason Magee was using the drive-thru window was because the indoor portion of the restaurant was closed for the evening.

McDonald’s has a standing policy that walking pedestrians are not able to use the drive-thru windows, which is presumably for employee safety reasons. Now, you might be thinking this lawsuit sounds crazy, but the man may actually have a point. McDonald's

Magee claims the policy is discriminatory because, since a customer cannot physically enter McDonald’s restaurants during late-night hours, the drive-thru is the only means upon which a customer can order and purchase McDonald’s products. Further, he argues the drive-thrus offer no meaningful accommodations for visually impaired customers.  Since a customer cannot physically enter a McDonald’s restaurant during late-night hours, the blind are excluded from accessing McDonald’s products during late-night hours.

Does It Really Deny Equal Access?

Technically, yes. We all know the ADA prohibits discrimination on the basis of a disability, but if you’re not familiar with the specifics, Title III of the ADA prohibits denying equal enjoyment of goods and services of any place of public accommodation. If you take a look at the appropriate section of Title III with respect to providing equal access to all, it further says:

“…failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, services, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.”

Currently, McDonald’s has not taken any steps to accommodate visually impaired individuals to access their goods and services during late-night hours. Although McDonald’s doesn’t have policies in place facially discriminating against the blind, in application, Magee has a legitimate claim that the policy does actually discriminate. When you consider that Magee would otherwise be able to enjoy the benefits and services of McDonald’s but for his visual impairment, then the policy does in effect deny him equal access.

Here’s Why

Customers that have no visual impairment can look, order, and purchase McDonald’s products during late-night hours without having to rely on the assistance of others. A blind person, however, must rely on another person to 1) drive them to and through the drive-thru and, 2) assist them in selecting and purchasing the food.

Magee claims that because of the size of the McDonald’s corporation, the company has the ability to utilize some of the advanced technology that is available in today’s society to make the appropriate accommodations for the blind and visually impaired.

A Reasonable Solution

Obviously, there are thousands of McDonald’s across the country and any change, even a relatively small one in nature, could have an impact on the company. In order for McDonald’s to get out of this one, the company needs to prove any changes would be an undue burden or that any of the changes needed to be made to the drive-thru in order to accommodate the visually impaired would actually alter the goods and services offered.  The latter would be a pretty hard argument to make. So, would it be an undue burden?

Magee’s solution, according to his attorney Roberto Luis Costales, is for McDonald’s to allow customers to call in their orders and allow employees to deliver the food to the callers outside. Now, McDonald’s could argue it would be an undue burden to allow all customers to call in their orders, but if the policy only applies to those that cannot use the drive-thru via motor vehicle, then the impact would be relatively small, even if it was expanded to others with disabilities that prohibit them from driving.

Adding auxiliary aides to the drive-thru windows or perhaps changing their policy slightly would not change the nature of McDonald’s business, nor the goods and services they offer and, further, despite the thousands of stores across the country, it wouldn’t be an undue burden to make a few small changes for the visually impaired.