Barber vs Clark County, WA

7/27/2019 Barber vs Clark County, WA

http://slidepdf.com/reader/full/barber-vs-clark-county-wa 1/29

Message from James Barber Sr. to 420leaks editor John Novak dated Tuesday, October29, 2013...

Hello John,

Today the county got served. Hope to see ya posting it on 420leaks. In 21 daysI will post their reply.. on thclist.com which should be a hoot..

James Sr.

-----

IN THE SUPRIOR COURT OF THE STATE OF WASHINGTONCOUNTY OF CLARK

CASE NO. 13-2-03628-6

JAMES E. BARBER SR. et. al. VERIFIED FIRST AMENDEDPlaintiff, COMPLAINT FOR DECLARATORY

v. AND INJUNCTIVE RELIEF

COUNTY OF CLARK et. al.Defendant,

NOT SUBJECT TO MANDATORYARBITRATION

JURY TRIAL DEMANDED ____________________________________________________________________

INTRODUCTORY STATEMENT

1. This is a declaratory judgment , Injunctive action against the County of Clark,

Washington. Under the MUCA (Medical Use of Cannabis Act) all qualifying patientsare

disabled persons who are protected under WLAD. The subject county ordinance ONLY

affects disabled persons and is discriminating on its face, or as applied to theplaintiff, in

violation of RCW 49.60.030 and other provisions of the WLAD. In early July of 2011

before sb 5073 took legal operational effect, the BOCC instead of electing to file for



injunctive and/or declaratory relief in the courts, they elected to use their alleged

emergency moratorium authority under RCW 36.70A.390 and RCW 35.63.200 without

public notice under the auspice in good faith and within the scope of their assigned duties

under Chapter 69.51A.140 RCW intertwined with (if not bootstrapped to) 69.51A.130

RCW for planning land use and zoning districts on the use of cannabis by qualifying

patients and designated providers, as well as vulnerable disabled qualifying patients

collective gardens as necessary to further the public interest, for their health, safety, and

welfare. Resolution 2011-07-04. The county commissioners have now banned and/or

listed vulnerable disabled qualifying patients collective gardens in all zones anon-

conforming use (under the auspice of federal law) which the county/state can use

abatement actions and/or process be it criminal and/or civil, in direct violation of the

Washington Medical Use of Cannabis Act (MUCA), WLAD (and plaintiffs SSDI order of

Oct. 28,2010). The County of Clark and its Board of Commissioners have passed

ordinance(s) outside of their Legislative/Administrative/Executive authorities,

done not in

good faith within their assigned duties: and, whereas The County would adopt zoning and

implement rules and/or practices not under their purview. The Washington Planning

Enabling Act allows political subdivisions and municipalities to regulate the use of land ,

not to regulate the conduct and activity of citizens of the state' private affairs . Allowing a

political subdivision of the state to allow penalties and/or criminalize personal private

conduct and useful lawful activity through land use regulation -- conduct and lawful

useful activity that is otherwise protected by state statute would open the floodgates



for the state's 39 political subdivisions and too more than 281 municipalities to

promulgate codes,rules,laws and regulations which in operational effect criminalize with

a form of penalty any behavior deemed unpalatable to their respective small group of

local officials, and law enforcement, contrary to statute and legislative intent.

2. Furthermore, Clark county ordinance no 2013-07-08 is far from a typical "zoning"

measure. "A zoning ordinance is defined as an ordinance which regulates the useof land

and buildings according to districts, areas, or locations." It is not, in any meaningful

reasonable sense, a simple "zoning regulation"; it is outright prohibition. Regardless of

how Clark county's ban is labeled, it is difficult to imagine a more direct conflict between

a local ordinance and a state law.

3. In sum, Clark county's ordinance is not insulated from review merely becauseit is

described by defendant as a "zoning regulation." Like any other ordinance, a zoning

regulation is subject to state law and is preempted if it conflicts with state law. In this

case, there is a clear conflict between Clark county's complete ban on the medical use of

cannabis under provision .085 and the protections of the MUCA. Accordingly, there

should be no question that Clark county's ordinance is preempted.

4. Plaintiff James E. Barber Sr. suffers from lumbar spine Degenerative Disc Disease

which has resulted in severe disc pain from disc protrusions in his spine causing both

severe and chronic foot and leg pain. Plaintiff also experiences severe and chronic pain in

his left knee from fracture and instability as a result of being crushed betweentwo

vehicles at the age of 16. Plaintiff also suffers from celiac disease and other



food triggers

which causes severe weight loss. Plaintiff also suffers from Barrettes Esophaguscausing

the risk of untreatable cancer and severe pain, in which no standard medicine ortreatment

gives relief too plaintiff. Plaintiff also suffers from a complex seizure disorder in which

he contracted in the Clark county jail from major overdosing plaintiff on anti-seizure

meds (for the above noted back pain) given by jail staff and jail medical staff.Plaintiff

whilst using cannabis as medical treatment (fully vetted by ALJ laws) was awarded SSDI

permanent unemployable disability on Oct. 28,2010 by ALJ Eleanor Laws, retroactive too

Jan. 1, 1999. Plaintiff is also on state disability through DSHS. The county has

also listed

plaintiffs real property interest as maximum 60 % disability tax exemption status as a

result of the Oct. 28,2010 order.

5. Plaintiff is a vulnerable disabled qualifying patient with valid documentation as

required by both state statute(s), MUCA, and WLAD..

6. Plaintiffs ability to use medical cannabis as valid treatment noted in his SSD

I order

and state law, is threatened by Clark County's discriminating vulnerable qualifying

patients collective gardens ordinance no. 2013-07-08, that makes it in operational effects,

illegal and actionable,(including by law enforcement) under non conforming usesfor

plaintiff to create and participate in collective gardens for the purpose of producing,

processing, transporting, delivering ,administration, use of cannabis for medical use

subject to the following conditions of RCW 69.51A.085: at his own home for

PRINCIPAL and/or accessory uses under state law without civil and/or criminal actions

or threats/harassment by the county or law enforcement. The county ordinance is



contrary

to state laws of abatement unambiguously delineated in RCW 69.51A .005,and, .040

legislative intent to field preempt such actions for all qualifying patients, including those

associated within the definition, conduct and activity under section .085. Thesegardens

are not intended for commercial business uses, section .055(2) is clear evidencethat

section .025,.040 and .085 unambiguously are to be read in harmony, and reasonably

suggests treatment by the court, corrections agency or department, including local

governments as such. They do not conflict.

7. In this lawsuit, plaintiff generally seeks a declaratory judgment, Injunctiverelief that

the Clark County ordinance 2013-07-08 is: preempted by the Washington Medical Use of

Cannabis Act; the cannabis act is not preempted by federal laws; it violates theprivate

affairs of qualifying patients by authorizing unreasonable intrusion into a person's `private

affairs without authority of law under Art.1 Sec.7.; it violates Art.1 Sec.3- byauthorizing

unreasonable, persons shall be deprived of life, liberty, or property, without due process

of law; it violates vested rights doctrine principles of residential and/or accessory use(s);

that county employees doing their duties of processing and providing building, plumbing,

electrical, ventilation, grading permits too residence's for qualifying patients

private,unlicensed,noncommercial uses of collective gardens under MUCA at their

residential premises is not a violation of federal laws; and the ordinance is discriminatory

under WLAD, beings plaintiffs SSDI order of Oct. 28,2010 delineates his state

disabilities and, thus, the ordinance no. 2013-07-08 is invalid and unenforceable.

Plaintiffs ability to create and participate in collective gardens medical use of



cannabis

which is protected by the MUCA,WLAD, SSDI order of Oct. 28,2010 and the County of

Clark does not have the power to override state laws by claiming federal laws trump the

policing powers of the state sovereign or write an ordinance conflicting with state law

and/or ignore federal ALJ order on plaintiffs disability whilst using cannabis for medical

treatment under other federal laws, for their "political" purposes. The test fornecessary or

implied municipal powers is legal necessity rather than practical necessity. Asthis court

stated in Hillis: "[i]f the Legislature has not authorized the action in question, it is invalid

no matter how necessary it might be." RCW 69.51A.085, makes no reference too

business licensing nor to local B&O taxing laws, local safety and health rules,or local

governments specifications. And, although RCW 69.51A.140 left room for local

jurisdictions to impose regulations on Licensed Dispensers of Medical Cannabis,(in

which those commercial sections where subjected to veto), this RCW commercial use

provision .140 does not apply, chapter 35.63. rcw is inapplicable to use on pri

vate,

unlicensed, non commercial uses and was never intended to apply to any patient and/or

provider state only regulated garden, including vulnerable disabled qualifying patients

collective gardens.

8. The question present in this case before the court is whether this local state political

subdivision government body of Clark county has been vested by an act of the legislature

with the authority to enact the TYPE of ordinance in question, in this instance,removing

Plaintiffs vulnerable disabled Qualifying Patients Collective Gardens civil andcriminal

exemptions for penalty purposes, and qualifying ALL such vulnerable disabled pat



ients as

a nuisance, criminals or having their property interest seized and automaticallyforfeited

for sharing their resources protected by state law rights but, prohibited in residential

zones under the ordinance.

9. WHEREAS, No local government legislative/Administrative/Executive body was

given such authority by the state legislature either in an express grant or by necessary

implication under MUCA. Contrary to county's belief's, RCW 69.51A qualifying patients

civil exemptions effectively removed this "political" corporate subdivisions operational

right of abatement laws for zoning purposes under rcw 69.51A.005,025,040, .085,and

RCW 7.48 read in harmony. This local legislative/Administrative/Executive body was

not given zoning abatement and/or amendment authority which can result in any form of

a penalty which conflicts with state laws. SEE 56 Am Jur 2d, Municipal Corporations, §

374, pp 408-409:

It has been held that in determining whether the provisions of a municipalordinance conflict with a statute covering the same subject, the test

is whether the ordinance prohibits an act which the statute permits, orpermits an act which the statute prohibits.

Accordingly, it has often been held that a municipality cannot lawfullyforbid what the legislature has expressly licensed, authorized, permitted,or required, or authorize what the legislature has expressly forbidden.

PARTIES AND STANDING

10. Plaintiff James E. Barber Sr. is an adult resident of the state of Washingto

n,county of

Clark. He is a vulnerable disabled Wa. citizen with valid documentation under both state

statute(s), MUCA and WLAD .He is a cannabis patient with valid Documentation/

prescription for the treatment of his multiple conditions with cannabis as a medicine as



required by statute(s). He desires to create and participate in a collective garden as

defined by MUCA statute and intent of the legislature, at his principal residence within

the county of Clark for private, unlicensed, noncommercial medical uses under provision

section .RCW 69.51A.085 , WHICH constitutes sharing of resources be protected from

local government controls, specifications, intrusions over such private affairs.Plaintiff

has exhausted his administrative remedies county has allowed to date. Plaintiffhas

Standing.

11. Defendant County of Clark is a "political" corporate subdivision of the State of

Washington organized under the laws of the State of Washington. Clark County is

a

"political" corporate subdivision and a "creature" of the state and derives allof their

authority and powers from the state constitution and the state legislature. This

corporation is a body "politic" established by law as an agency of the state partly to

assist in the civil government of the state, but chiefly to regulate and administer the local

and internal affairs of the unincorporated city, town, or district. It has neither existence

nor power apart from its creator, the legislature, except such rights as may begranted to

municipal corporations and political corporate subdivisions by the state constitution, such

as formation. It is dubious the county has standing to make any preemption or

legislative/Administrative/Executive affirmative defense under the material fact

s and

circumstances of this case.

JURISDICTION AND VENUE

12. This court has jurisdiction because this is a civil action, no other court has exclusive



jurisdiction over this action and no law denies the Superior Court jurisdictionover these

actions taken in bad faith under MUCA , WLAD, LUPA which authorize invasion of

private affairs without authority of law; by operational effects causing a lax in elements of

the states death penalty; legislative/Administrative/Executive discriminatory actions;

authorizing deprivation to plaintiff of life, liberty, or property, without dueprocess of

law; all not within the scope of any assigned duties. This courts authority to grant a

declaratory judgment is provided by Chapter 7.24 RCW, and relief under WLAD, among

others.

13. Venue is proper because the plaintiff lives in Clark County and defendant County is a

governmental unit that exercises or may exercise its governmental authority in Clark

County not in conflict with state statute(s). And the justices of this county have a

constitutional duty too protect it's citizens over obvious "political" statements (not a valid

zoning law) by the county of clark BOCC which is contrary too and conflict withstate

laws.

FACTS

PLAINTIFF JAMES E. BARBER SR.

14. Plaintiff has suffered from mild back pain since at least Jan.1,1999, whichincreased

to SEVERE in 2000 after being boot stomped. Plaintiff has suffered from SEVERE knee

pain since he was 16. Plaintiff has suffered from SEVERE barrettes esophagus erosion

since he was in his early 20's. Plaintiff has suffered from SEVERE celiac disease since he

was incarcerated in 2002. Plaintiff has suffered from complex seizure disorder since



overdosed on anti-seizure meds for SEVERE back pain in 2001 by the Clark county

sheriffs jail division.

15. As prescribed by his physicians and jail physician ,plaintiff has tried Vicodin, other

narcotics,SSRI and anti-seizure meds to relieve pain. Their auto-immune and

neurological response causing SEVERE side effects, however, are notably unpleasantly

assaulting as taking poison, offer zero efficacy and they do not effectively manage his

symptoms.

16. Based on advice sought and written recommendation (prescription)of his primary

specialty care physician, plaintiff found cannabis to be more effective in relieving his

severe and chronic CONDITION(S)(See Oct. 28,2010 ALJ findings of fact), preferab

le to

various narcotic,SSRI and anti-seizure drugs which in effect are nothing more than poison

AND do not provide efficacy for plaintiffs life long chronic health condition(s), thus

offering no medical use and/or efficacy.

17. Plaintiff is registered with the county as a disabled person with property interest

mandating per statute a 60% tax exemption status. Plaintiff has valid documentation

(prescription and Wa. I.D.) as required by statute. Plaintiff is recognized by the SSA as a

SEVERELY vulnerable disabled Person using medical cannabis for lawful medical

treatment, under their federal laws. Plaintiff is recognized by the state DSHS as disabled.

Defendant is in possession of a true copy of plaintiffs SSA order dated Oct. 28,2010

which addresses plaintiffs lawful cannabis use. County of Clark ordinance no. 2013-07-

08 does Interfere with plaintiff rights under state laws and his rights recognized under

other federal laws by an ALJ in a non-adversarial hearing,. Accordingly, the sameas



required For ANY Probable Cause Determination under the constitution(s).

18. Plaintiff has been suffering physically and mentally without his recommendeddosing

as a result of being denied the right to create and/ participate in sharing hisproperty

interest resource without being subjected to punishment or seizure with automatic

forfeiture, thus seriously affecting his rights,repose , health and safety, etc.. in medical

treatment proscribed by state laws at his residential premises, and acknowledgedby a

federal ALJ. The county, state agencies, and clark county sheriffs division in

conjunction, has a "written" pattern of interfering with plaintiffs medical treatment,

property interests and disabilities rights since 2000.

This ordinance no. 2013-07-08 is just a repeat, with a different farce.

The Washington Medical Use of Cannabis Act(MUCA)

.19. In November of 1998, the voters of the State of Washington approved Initiative 692

(codified as chapter 69.51A RCW). The intent of Initiative 692 was that qualifying

patients with terminal or debilitating illnesses who, in the judgment of their physicians,

would benefit from the medical use of marijuana, shall not be found guilty of acrime

under state law, but that nothing in the law shall be construed to supersede Washington

state law prohibiting the acquisition, possession, manufacture, sale or use of marijuana

for non medical purposes.

20. In 2011, the Washington State Legislature passed ESSSB 5073, which amended

chapter 69.51A RCW. This bill clarified,qualifying patients or their designatedproviders

are presumed to be in compliance with the medical use of cannabis act, and SHALLNOT

be subject to criminal or civil sanctions,penalties, and/or consequences,and/or



seizure

and/or forfeiture when they meet certain qualifications. RCW 69.51A.085 included.

21. One section of this bill directed employees of the Washington State Departments of

Health and Agriculture to authorize and license commercial businesses that produce,

process or dispense cannabis. In addition,this bill required that the Departmentof Health

develop a secure registration system for licensed producers, processors and dispensers.

These provisions,however, were vetoed by the Governor, together with many others

relating to licensed dispensers and all of the definitions in this bill, all under a state

regulatory licensing scheme. The bill was approved by the governor of Washington

April

29, 2011, with 36 sections vetoed.

For example, the vetoed definition for a "production facility" means:

The premises and equipment where cannabisis planted, grown, harvested, processed,stored, handled, packaged, or labeled by alicensed producer for wholesale, delivery, ortransportation to a licensed dispenser orlicensed processor ... .ESSSB 5073,Section 201(24) (emphasis added).

Similarly, the vetoed definition for a

"processing facility" means:

the premises and equipment where cannabisproducts are manufactured, processed,handled, and labeled for wholesale tolicensed dispensers. ESSSB 5073,Section 201(22) (emphasis added).

Finally, the vetoed definition of a

"licensed dispenser" means:

a person licensed to dispense cannabis formedical use to qualifying patients anddesignated providers by the department ofhealth in accordance with the rules adoptedby the department of health pursuant to theterms of this chapter.ESSSB 5073,Section 201(12).



See also, e.g., ESSSB 5073, Part VI (vetoed provisions for licensed producers

and licensed processors); Part VII (vetoed provisions for licensed dispensers);Part VIII

(vetoed "miscellaneous provisions applicable to all licensed producers, processors, and

dispensers"). Section .140 was for the operational use for these commercial uses..which

are now mostly codified under I-502 principles. Except "licensed Dispenser".

22. The governors vetoes were related to those sections concerning state employee

involvement in producing, processing and dispensing cannabis. She cited the risks posed

to state employees under federal law for doing so, even if a registered licenseddispenser

of controlled substances (like a state legislator), state employee immunity doesn't apply.

23. The bills provisions relating to individual cultivation of medical cannabis and

cultivation in collective gardens were not vetoed. An individual qualifying patient may

cultivate up to 15 cannabis plants in his/her own residence (or possess up to 24ounces of

usable cannabis).There are other limits for qualifying patients who are also designated

providers. Up to ten vulnerable disabled qualifying patients may create and participate in

Sharing their resources in collective gardens for the purpose of producing,processing,

transporting and delivering cannabis for medical use. Accordingly, ,engaging inthe

private, unlicensed, noncommercial sharing of resources for production, possession,

transportation, delivery, or administration of cannabis for medical use is deeme

d a

principal and/or accessory use, and does not constitute a nuisance prohibition under state

law principals which municipalities and state "political" subdivisions base their

Ordinance(s) on in zoning.



24. A collective garden may not contain more than 15 plants per patient up to atotal of 45

plants per garden, and the garden may not contain more than 24 ounces of usable

cannabis per patient, up to a total of 72 ounces of usable cannabis thus,engaging in the

private, unlicensed, noncommercial sharing of resources for production, possession,

transportation, delivery, or administration of cannabis for medical use is a principal

and/or accessory use as intended in section rcw 69.51A.025,.040,.085 is not norcould it

be reasonably actionable under any civil/criminal processes or alleged zoning ordinances,

nor is it a non conforming use which can garnish any form of penalty . The definition of

Qualifying Patient has not and was not changed.

25. Under the bill, cities, towns and counties may NOT adopt and/or enforce

requirements for zoning,business licensing, health and safety and business taxesrelating

to the "vulnerable disabled qualifying patients creation and participation in collective

gardens sharing their resources for the purpose engaging in the private, unlicensed,

noncommercial production, possession, transportation, delivery, or administratio

n of

cannabis for medical use as a principal and/or accessory use within their jurisdiction for

vulnerable disabled qualifying patients accessory uses to ones residential premises".

26. In vetoing portions of this bill, the then governor of Washington released aletter of

her understanding to ALL constituents stating on page 1 , in pertinent part :

Our state legislature may remove state criminal and civil penalties for activities that

assist persons suffering from debilitating or terminal conditions. .The United States

Department of Justice has made the wise decision not to use federal resources to

prosecute seriously ill patients who use medical marijuana.



27.. The laws of Alaska, California,Colorado, Hawaii, Maine, Montana, Nevada, New

Mexico, Oregon, Vermont, Rhode Island, and Michigan do not penalize the medicaluse

and cultivation of cannabis. Washington State joins in this effort for the "

health,safety,morals and welfare of its citizens.

28. The MUMA decriminalized the medical use of marijuana for debilitating and

terminal medical conditions, including chronic or debilitating diseases and medical

conditions that produce severe and chronic pain.

29. The MUCA legalized the medical use of cannabis for medical purposes the sameas

prescription drugs from a pharmacy under a doctors supervision. Accordingly,, th

e courts

in Washington refer too valid documentation as a "prescription" under state lawmedical

practices.

30. Specifically, the MUCA provides that vulnerable disabled Qualifying patients with

terminal or debilitating medical conditions who, in the judgment of their healthcare

professionals, may benefit from the medical use of cannabis, shall not be arrested,

prosecuted, or subject to other criminal sanctions or civil consequences under state law

based solely on their medical use of cannabis, notwithstanding any other provision of

law(see e.g., rcw 69.51A.020 other provisions of law);and The lawful possessionor

manufacture of medical marijuana as authorized by this chapter shall not result

in the

seizure or forfeiture of any property.(see RCW 69.51A.050)

31. The legislature provides at RCW 7.48.160- Nothing which is done or maintained

under the express authority of a statute, can be deemed a nuisance.

32. The legislature provides at RCW 7.48.120 Nuisance defined.



Nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or

omission either annoys, injures or endangers the comfort, repose, health or safety of

others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or

Render dangerous for passage, any lake or navigable river, bay, stream, canal orbasin, or

any public park, square, street or highway; or in any way renders other personsinsecure

in life, or in the use of property.

33. The legislature provides at RCW 9.66.030 Maintaining or permitting nuisance.

Every person who shall commit or maintain a public nuisance, for which no special

punishment is prescribed; or who shall willfully omit or refuse to perform any l

egal

duty relating to the removal of such nuisance; and every person who shall let, or permit

to be used, any building or boat, or portion thereof, knowing that it is intended to be, or is

being used, for committing or maintaining any such nuisance, shall be guilty ofa

misdemeanor.

34. 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.The plenary police power in

regulatory matters accorded municipalities by the state constitution ceases whenthe state

enacts a general law upon the particular subject, unless there is room for concu

rrent

jurisdiction. Lenci v. Seattle, 63 Wn.2d 664, 669, 388 P.2d 926 (1964). Whetherthere is

room for the exercise of concurrent jurisdiction in a given instance necessarilydepends

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 tothe purposes

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.; 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.

35. The legislature also "expressly" and "implicitly" provides Under MUCA the

provisions subject to the following conditions at .085, are not found in .140:

(1) Qualifying patients may create and participate in collective gardens for thepurpose of producing, processing, transporting, and delivering cannabis for medical use subject to the following conditions:

(a) No more than ten qualifying patients may participate in a single collective garden at any time;

(b) A collective garden may contain no more than fifteen plants per patientup to a total of forty-five plants;

© A collective garden may contain no more than twenty-four ounces of usable c

annabis per patient up to a total of seventy-two ounces of useable cannabis;

(d) A copy of each qualifying patient's valid documentation or proof of registration with the registry established in *section 901 of this act, including acopy of the patient's proof of identity, must be available at all times on thepremises of the collective garden; and

(e) No usable cannabis from the collective garden is delivered to anyone other than one of the 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 ex

ample, a location for a collective 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.

36. The MUCA "expressly" and "implicitly" provides the same protections to A



qualifying patient who grow cannabis alone as do qualifying patients whom are engaging

in the private, unlicensed, noncommercial sharing of resources for production,

possession, transportation, delivery, or administration of cannabis for medicaluse as a

principal and/or accessory use as "expressly" and "implicitly" intended in section rcw

69.51A.085 therefore, is not lawfully actionable under any criminal and/or civilprocesses

or within a reasonable good-faith argument under any assigned duties for purposes of

legislating/ administering/ executing discriminatory zoning ordinances.

37. The medical use of cannabis is defined by the MUCA to include, among other

things, (3) "Medical use of marijuana" means the production, possession, or

administration of marijuana, as defined in *RCW 69.50.101(q), for the exclusive

benefit

of a qualifying patient in the treatment of his or her terminal or debilitatingillness.

38. The County wholly without legal authorization over the specific subject matter passed

a moratorium resolution on vulnerable disabled qualifying patients private, unlicensed,

non commercial use as defined in rcw 69.51A.085 collective gardens July 12, 2011, in

which it extended for over 1 yr. period allegedly under chapters 36.70A.390 and35.63

RCW . On June 10, 2013 ALL amended resolutions expired per Axel Swanson' staff

report to the planning commission . On June 25, 2013 the Board wholly without legal

authorization again over the specific subject matter passed ordinance NO. 2013-07-08

unduly oppressing the principal and accessory uses of plaintiffs property which

is not a

public problem nor was the ordinance enacted for a valid public purpose, as theconduct

and activity is strictly a private affair . The (SEPA/EIS) SPECIFICALLY does not

identify a public problem, nor any negative principal or accessory use impacts,in the



private,unlicensed,non commercial producing, processing, transporting, and delivering

cannabis for medical use subject to the following conditions: ..........................085 read in

harmony with .005, .025 and .040.

39. The statute preempts the field, leaving no room for concurrent jurisdiction, and "A

true conflict exists such that the two cannot be harmonized". 40. The county enacting ordinance no. 2013-07-08 therefore wholly without legal

authorization over the specific subject matter which allows any private, unlicensed, non

commercial vulnerable disabled qualifying patients collective gardens conduct and/or

activity allowed by state law when conducted pursuant to a valid recommendation/

prescription of a medical practitioner for the use of cannabis for medical treatment at or

on property in a residential zoning district for private, unlicensed non commercial home

uses, and the effects causes by design such pain and agony as to be equivalent of that

produced by torture. Because it prohibits what state law permits and permits what state

law prohibits, it causes substantial bodily harm, and even has the potential of

causing

premature death to a specific class of the states MOST vulnerable disabled citizens, it is

in violation of article XI, section 11 of the Washington State Constitution, itconflicts

with multiple state laws, it usurps the judiciary, the amending ordinance is clearly outside

of the commissioners legislative/administrative/executive authoritative scope ,done not

in good faith within their assigned duties and, whereas The County would adopt such

discriminatory zoning ( abating zones of private affairs) and implement rules, regulations

and/or specifications not under their purview and can not be harmonized.

41. The statute(s) in this case involves a "fundamental 'life', 'liberty','prope



rty', 'privacy'

Right(s)" and plaintiff belongs to a class of vulnerable disabled citizens by adebilitating

and/or terminal condition covered by the statutes whom is negatively affected ,thus

accordingly the presumption of Clark County's ordinance constitutional validityin this

specific case is reversed.

42. Because this court should clearly find RCW 69.51A.005,025,.040 and .085

unambiguous, this court cannot construe the statute(s), and this court must simply apply

them.

43. The above 4 listed sections clearly delineates the plain meaning conveyanceof the

The intent of the legislature to protect the fundamental 'life', 'liberty','prop

erty', 'privacy'

right(s)" in ones private unlicensed non commercial affairs and the county

legislative/administrative/executive body acted beyond it's scope in bad faith not within

their assigned duties as delineated in rcw 69.51A.140, 130(2).

44. In determining whether a statute conveys a plain meaning, "that meaning is discerned

from all that the Legislature has said in the statute and related statutes which

disclose

legislative intent about the provision in question." "If the statute's meaning is plain on its

face, this court gives effect to that plain meaning as the expression of what was

intended." The authority must be found either in an express grant or by

necessary implication from such a grant. Washington State "courts will not expand the

powers of local government beyond express delegations".

45. It is clear that the intent of the voters of Washington, the legislature, and federal

prosecutors discretionary charging policy agree that qualified patients should not be

punished for use of medical cannabis provided certain requirements have been met. If a



policy is clear and unambiguous, the court must enforce it as written". In such

circumstances, the court may not create ambiguity where none exists. Ambiguity exists

only where language is susceptible to different interpretations, each of which is

reasonable. 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, including sharing resources delineated in RCW 69.51A.085.

46. When it is clear that a ordinance transgresses the authority vested in a legislative/

administrative/executive body, it is the duty of the courts to declare the act

unconstitutional, because they cannot shrink from it without violating their oat

hs of

office. A municipal and/or political subdivision regulation is "deemed to conflict" with a

statute if it forbids that which a statute permits or permits that which a statute forbids.

Where there is doubt as to the existence of a state power arguably conferred toa local

government, the rule is, this court will construe the question against local government

and against the claimed power.

The Clark County Ordinance

47. The County passed a moratorium resolution on qualifying patients collectivegardens

July 12, 2011, in which it extended for over 1 yr. and on June 10, 2013 all amendments

too it expired. On June 25, 2013 the Board passed an ordinance , the County of Clark, in

which its NEW County Commissioners deliberated, ending in a vote of 2-1 in favorof a

political prohibition statement, adopted Ordinance No. 2013-07-08.

48. The ordinance adds Section 15. Amendatory. Ordinance 2006-05-04 as Codified



in

CCC 40.340.110 is hereby amended, as follows:

Collective Gardens as defined in CCC 40.100.70

49. This reasonably translates into "Uses not expressly permitted under this ordinance are

politically prohibited in all districts. Uses that are contrary too this political

commandeering statement ordinance no. 2013-07-08, are prohibited under federal law,

allegedly based on, a two-way correspondence too and "from the U.S. Attorney's office",

which actually never really factually occurred. The county can not produce ANY direct

correspondence "from the U.S. Attorney office" which is the prosecuting authority in the

UNITED STATES under federal law too warrant the concern and/or belief's allegedin

the findings and conclusions in good-faith.

50. Section 16. Findings. The findings and conclusions contained in the recitalclauses

above are adopted in support of the boards action in enacting this ordinance.

51. WHEREAS, the Board is concerned that action of county employees issuing permits

for the growth, production, or distribution of cannabis; and collective gardenswill make

them accessories to the commission of federal crimes "based on correspondence from

the U.S. Attorney's office"; and

52. WHEREAS, the Board finds and concludes that until the federal/state conflictis

resolved the citizens of Clark county will follow federal law related too collective

gardens;

53. WHEREAS, Title 35.63 and the Washington State Constitution authorize the Board

of Clark county commissioners to adopt police power ordinances to promote the public

health, safety and welfare;



54. Section 17. Limited non conforming right. Notwithstanding the provisions ofchapter

40.530 CCC (non conforming uses and structures) "an existing use" that meets the

definition of collective garden as of the effective date of this ordinance shallbe brought

into full compliance with the provisions of this ordinance within one year of the effective

date.

55. The state believes marijuana has some "beneficial uses", RCW 69.51A.005.

56. Operational Effect(s) of the county ordinance is to make the cultivation, possession,

delivery, transportation and use of medical cannabis resources sharing a violation of the

zoning ordinance so that plaintiff, a vulnerable disabled qualifying patient, a

nd patients

with either a debilitating and/or terminally ill condition(s) sharing resourceswith

plaintiff, are subject to the result of seizure with an automatic forfeiture ofANY property,

civil penalty including fines, costs, and/or injunction, arrest and/or prosecution. The

ordinance has the real potential of causing premature death of terminally ill vulnerable

disabled qualifying patients. Thus, relaxing the elements of a death sentence requirements

contrary too state law and legislative/ administrative/ executive authority mandates of

serious harm too the public be found before a jury may enact ANY form of the death

penalty or a prosecutor seeking a death sentence penalty. The county commissioners lack

authority to lax such elements at the behest of law enforcement, the prosecutor,yet, we

have a lax in operational effect written into a local ordinance no. 2013-07-08 authorized

by the Clark County prosecutors office as too form, and recorded by an action ofthe clerk

of the board. This ordinance, thus, works to invalidate specific state law that



allegedly

conflicts with federal law, regardless of the validity of the state statute. Thecounty

oversteps its powers granted under the Washington constitution by disregarding state law,

in favor law enforcement requests, the prosecutor authority as to form and of federal

law.

57. Plaintiff, like all vulnerable disabled qualifying patients having valid documentation

on premises with either a debilitating and/or terminally ill medical condition(s), even in a

vulnerable disabled qualifying patients collective gardens is entitled to grow,possess,

deliver, transport, administer and use medical cannabis in accordance with the

Washington Medical Use of Cannabis Act at their residential premises without being

subject to ANY civil and/or criminal penalty and/or seizure and/or forfeiture ofproperty

in ANY manner by the defendant county and/or in conjunction with the government

employees either county or state under any drug trafficking contract(s)/grants

/agreements and the like with the federal government.

58. More disturbing is that if this court allows clark county ordinance no. 2013

-07-08 to

set such unconstitutional policy precedent, it would not be limited to medical

cannabis,allowing municipalities and/or political subdivisions to contravene state law in

any area and on any topic they choose, potentially undermining all manner of personal

conduct and freedoms. If the county of clark prevails, municipalities and/or political

subdivisions conceivably would be able to regulate or legalize anything not prohibited by

federal law. Municipalities and/or political subdivisions would be able to arguethat they

could zone for conduct and/or activities despite contrary state law so long as the federal

laws do not prohibit such conduct and/or activity.



CLAIM FOR RELIEF

DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

59. This court is empowered to enter a declaratory judgment under Uniform Declaratory

Judgment Act, Chapter 7.24 RCW , WLAD under chapter 49.60 RCW and Injunctive

relief under Chapter 7.40 RCW. This is not a LUPA petition and does not qualifyas one.

Accordingly, If the court is inclined to find it is or does, the plaintiff has plead relief and

prayed for general damages. As ordinance no. 2013-07-08 is not a land use ordinance but

is an outright prohibition political statement as noted by, the voting in favorNEW

commissioners, saying the state can not force them too violate federal laws, the

ir moral

compass and oath of office won't allow such.. This ordinance was not enacted under the

public interest threshold as required by law.

60. Corporate Subdivisions in Washington may not adopt ordinances in conflict with any

Washington state statute(s). Such ordinances are preempted by Washington state law, and

violate Art. XI Sec. 11 of the Washington State Constitution and therefore, arenull and

void ab initio.

61. It is clear that the intent of the voters of Washington, the legislature, federal policy, all

agree that qualified patients should not be punished for use of medical cannabisprovided

certain requirements have been met.

62. Ordinance no. 2013-07-08 is in direct conflict with and therefore preemptedby the

Washington Medical Use of Cannabis Act and can not be harmonized.

The ordinance authorizes MULTIPLE penalties, property seizure state MUCA law does

not.



63. Ordinance no. 2013-07-08 is therefore unconstitutional in toto, manifestly

unreasonable, arbitrary and capricious, void ab initio and unenforceable on it'sface, or as

applied to the plaintiff for his medical use of cannabis, sharing his resourcesas allowed

under the Washington Medical Use of Cannabis Act.

64. Ordinance no. 2013-07-08 is in direct violation of and therefore conflicts and can

not be harmonized with the Washington Law Against Discrimination.

The ordinance on it's face, or as applied too plaintiff, discriminates against specific

vulnerable persons with specific "Disability" which means the presence of a sensory,

mental or physical impairment that: physiological disorder, or condition, cosmetic

disfigurement, or anatomical loss affecting one or more of the following body systems:

Neurological, musculoskeletal, special sense organs, respiratory, including speech organs,

cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and

endocrine;

65. Ordinance no. 2013-07-08 is in direct conflict with and therefore preempted

by

Art. 1 Sec. 7 of the Washington State Constitution invasion of private affairs without

authority of law. The county ordinance authorizes unreasonable intrusion/invasion into a

person's `private Affairs without any authority of law but said ordinance.

66. Ordinance no. 2013-07-08 is in direct conflict with and therefore preemptedby

vested rights doctrine principles of principal and/or accessory use.

The ordinance does not allow any normal permits processes listed in the definition

section of .085(2) which are the same for all permits listed in the IBC adoptedby

defendant county. Those whom already have a residential occupancy permit are denied



already vested rights in principal and accessory uses IF your disabled and may want to

create and participate in sharing resources for a vulnerable disabled qualifyingpatients

collective garden .

67. Ordinance no. 2013-07-08 is in direct conflict with and therefore preemptedby

Art.1 Sec.3- No person shall be deprived of life, liberty, or property, withoutdue process

of law. The ordinance authorizes deprivations of life,liberty, and property without due

process of law.

68. Ordinance no. 2013-07-08 is in direct conflict with and therefore preemptedby-Art.

1 Sec. 14- ... excessive fines imposed, nor cruel punishment inflicted.

The Ordinance authorizes imposition of excessive fines, and imposition of inflicting cruel

punishment to a specific vulnerable disabled protected class of persons.

79. Ordinance no. 2013-07-08 is in direct conflict with- the principles of federalism-

Accordingly, There is NOT any "positive conflict" between the CSA and the statelaw

such that they cannot stand together.

70. An actual case or controversy exists between the plaintiff and the defendant, that can

be redressed by a favorable judicial decision for the plaintiff.

71. Washington case law is clear that an ordinance is preempted where it seeks to prohibit

what a state statute permits, and visa-versa.

72. Therefore, in the present controversy, as it is clear that as the ordinance

is attempting

to prohibit what the state statute permits,and permits what state law prohibits,the

ordinance is unconstitutional in toto ,manifestly unreasonable, arbitrary and capricious,

null and void ab initio and thus, unenforceable.



RELIEF REQUESTED

WHEREFORE, plaintiff hereby prays for the following relief:

A. For a declaration that the ordinance is invalid because:

(a) it is discriminatory on its face or applied to plaintiff in violation of WLAD,

(b) it is preempted by state law,

( c) it violates plaintiff substantive due process rights,

(d) it violates the Wa. State constitution in that it violates plaintiffs rightsto equal

protection in that it treats the disabled persons differently than other similarsituated

persons ,and

(e) The county commissioners, county staff, county law enforcement and county

prosecutors office acted in bad faith. Accordingly, the subject matter of qualifying

patients collective gardens is not within the scope of assigned duties for any legislative/

administrative /executive body purview(s) under RCW 69.51A.140. Thus, RCW

69.51A.130 immunity is inapplicable.

B. (1) For an injunction prohibiting enforcement of the ordinance ,

(2) for general damages according to proof,

(3) for costs relating to this lawsuit,

(4) for reasonable attorney fees pursuant to RCW 49.60 or any other applicable statute,

and

(5) For such other relief that the court deems just and proper.

I declare under penalty of perjury under the laws of Washington state that I have read the foregoing First Amended Complaint, know its contents, and that the foregoing First

Amended Complaint is true and correct.



Dated this ________ day _____________of October,2013 at brush prairie, Wa.

County of Clark

______________________ James E. Barber Sr. acting pro per

______________________________________________________________________________

Received by county BOCCC dated March 17th,2011

Claim for injury and damages:

1). Conversion

2). Disability discrimination

3). Unjust enrichment

4). Tax fraud

5). Theft of honest services

6). Destruction of medical records (in violation of 6 year retention law, in badfaith to avoid suit)

7). Stalking/Harassment

8). Trespass

9). Rico

10). Denial of services accepting federal funds

11) Battery

_______________________________________________________________________________

Barber vs Clark County, WA

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