Citizens Against Corruption Et Al v. Kern County Et Al

Case 1:19-cv-00106-AWI-JLT Document 1 Filed 01/24/19 Page 1 of 50
LAW OFFICES OF ABRAHAM A. LABBAD

1
Abraham A. Labbad, Esq. (SBN 271349)
2 837 Bethany Rd.
Burbank, CA 91504
3 Office: (818) 253-1529
Fax: (818) 530-9236
4
E-Mail: abelabbad@gmail.com
5 Specially Appearing and Limited Scope
Attorneys for PLAINTIFFS
6
7 UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
9
CITIZENS AGAINST CORRUPTION, an )
10 organization; THE GREEN MILE, a ) Case No.:
)
California Unincorporated Association; )
11
GREEN CROSS OF NORTH ) PLAINTIFFS’ DUE PROCESS AND EQUAL
12 BAKERSFIELD, a California Corporation; ) PROTECTION COMPLAINT FOR THE
BIG O RELIEF; a California Corporation; ) FOLLOWING CAUSES OF ACTION:
13 TANNER-VEST, INC., a California ) 1. VIOLATION OF 42 U.S.C. §1983;
) 2. EQUAL PROTECTION
Corporation, ) VIOLATION, U.S.C. §§ 1981, 1983;
14
) 3. “CLASS OF ONE” EQUAL
15 Plaintiffs, ) PROTECTION VIOLATION, U.S.C.
) §§ 1981, 1983;
16 ) 4. DECLARATORY RELIEF
vs. )
17 ) FOR INJUNCTIVE RELIEF AND
) DAMAGES
COUNTY OF KERN, a political subdivision )
18
of the State of California; KERN COUNTY ) (42 U.S.C.A. §§ 1981, 1983; 28 U.S.C.A. §§
19 BOARD OF SUPERVISORS, collectively; ) 2201, 2202; 28 U.S.C.A. §§ 1331, 1343(a)(3),
LETICIA PEREZ, individually and as Kern ) 1343(a)(4).)
20 )
County Supervisor; MICK GLEASON, ) AND DEMAND FOR JURY TRIAL
21
individually and as Kern County Supervisor; )
DAVID COUCH, individually and as Kern )
22 County Supervisor; MIKE MAGGARD, )
individually and as Kern County Supervisor; ))
23
ZACK SCRIVNER, individually and as Kern )
24 County Supervisor; KERN COUNTY )
SHERIFF’S DEPARTMENT, collectively; )
25 DONNY YOUNGBLOOD, individually and )
)
as Kern County Sheriff; KERN COUNTY )
26
COUNSEL’S OFFICE, collectively; MARK )
27 L. NATIONS, individually and as Kern )
County Counsel; JAMES BRENNAN, )
28 individually and as Deputy Kern County )
)
CITIZENS AGAINST CORRUPTION COMPLAINT
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Counsel; PHILLIP JENKINS, individually and )

1
as Deputy Kern County Counsel; KERN )
)
2 COUNTY PLANNING AND NATURAL )
RESOURCES DEPARTMENT, collectively; )
3 LORELEI OVIATT, individually and as )
Director of Kern County Planning and Natural )
4
Resources; and DOES 1 Through 1000, )
5 Inclusive,
6 Defendants
7 COME NOW PLAINTIFFS CITIZENS AGAINST CORRUPTION, THE GREEN

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MILE, and GREEN CROSS OF NORTH BAKERSFIELD (hereinafter collectively “Plaintiffs”),
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and hereby bring the following Complaint against DEFENDANTS COUNTY OF KERN, et al.,
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(hereinafter collectively “Defendants”) as follows:
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12 1. The Civil Rights Act, section 1983, allows a plaintiff to sue state and local officials
13 who have violated U.S. constitutional or statutory rights. (See Livadas v. Bradshaw,
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512 U.S. 107, 132 (1994) (affirming that it is 42 U.S.C. §1983 that provides a federal
15
cause of action for the deprivation of rights secured by the United States
16
17
Constitution.)
18 2. This is an action brought for violations of Plaintiffs’ rights to due process of law and
19 to equal protection of the laws under the Fourteenth Amendment to the United States
20
Constitution for which Plaintiffs seek declaratory and injunctive relief pursuant to
21
United States Code, Annotated, Title 42, Sections 1981 and 1983 (42 U.S.C.A. §§
22
23 1981, 1983) and United States Code, Annotated, Title 28, Sections 2201, 2202 (28
24 U.S.C.A. §§ 2201, 2202).

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3. This action is also brought for violations of rights to due process of law and to equal
26
protection of the laws under the Fourteenth Amendment to the United States
27
Constitution for which Plaintiffs The Green Mile, Green Cross of Kern County and
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specific members of Plaintiff Citizens Against Corruption seek damages pursuant to

1
2 42 U.S.C.A. §1983.)
3 4. Plaintiffs Citizens Against Corruption, the Green Mile, Green Cross of North
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Bakersfield, Big O Relief, and Tanner-Vest, Inc., hereby seek to enjoin enforcement
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of Kern County Ordinance Code, section 19.08.055 (herein-after referred to as the
6
7
“Ordinance”), a copy of which is attached, marked “Exhibit A,” and hereby made
8 part of this Complaint. The Ordinance is unconstitutional on its face and as construed
9 and applied to Plaintiffs as a violation of due process and equal protection under the
10
law.
11
5. The jurisdiction of this court is invoked under United States Code Annotated, Title
12
13 28, Sections 1331 and 1343(a)(3), (a)(4) (28 U.S.C.A. §§ 1331, 1343(a)(3),
14 1343(a)(4)).
15
6. The acts and practices of all Defendants, their representatives, agents and employees,
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as here alleged, were performed under color of law, and therefore constitute actions
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of the State of California within the meaning of the 14th Amendment to the
18
19 Constitution of the United States (U.S. Const. Amend. XIV).
20 PARTIES
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7. Plaintiff Citizens Against Corruption is a group of commercial medical cannabis
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dispensary owners and operators and since before May 10, 2016, pursuant to state and
23
24
Kern County laws, have been or were lawfully engaged in the business of providing
25 medicinal cannabis commercially in the County of Kern to persons who are also in
26 compliance with state law.
27
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8. Plaintiff The Green Mile is a California unincorporated association that at all relevant
1
2 times stated in the present complaint conducted business in Rosamond, County of
3 Kern, State of California.

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9. Plaintiff Green Cross of North Bakersfield is a California corporation that at all
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relevant times stated in the present complaint conducted business in Kern County,
6
7
California.
8 10. Plaintiff Big O Relief is a California corporation that at all relevant times stated in
9 the present complaint conducted business in Kern County, California.
10
11. Plaintiff Tanner-Vest, Inc., is a California corporation that at all relevant times stated
11
in the present complaint conducted business in Kern County, California.
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13 12. Defendant, the County of Kern, is now, and at all times mentioned in this Complaint
14 has been a government entity in the State of California organized and existing under
15
the Constitution of the State of California.
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13. Defendant, the Kern County Board of Supervisors (hereinafter “Board”), is an
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administrative body of five elected members who are tasked with creating and
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19 implementing legislation on behalf of the County of Kern (hereinafter “Kern County”
20 or “County”), and was established by and exists under and by virtue of Chapter 2.04
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of the provisions of Kern County Ordinance Code (hereinafter “KCOC”).
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14. Defendant Leticia Perez, individually, is a citizen of the State of California and
23
24
performs the duties entrusted her as Kern County Supervisor.
25 15. Defendant Mick Gleason, individually, is a citizen of the State of California and
26 performs the duties entrusted him as Kern County Supervisor.
27
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16. Defendant David Couch, individually, is a citizen of the State of California and
1
2 performs the duties entrusted him as Kern County Supervisor.
3 17. Defendant Mike Maggard, individually, is a citizen of the State of California and
4
performs the duties entrusted him as Kern County Supervisor.
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18. Defendant Zack Scrivner, individually, is a citizen of the State of California and
6
7
performs the duties entrusted him as Kern County Supervisor.
8 19. Defendant Kern County Sheriff’s Department, collectively, is a political subdivision

9 of the State of California, business form unknown, operating within Kern County,
10
State of California.
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20. Defendant Donny Youngblood, individually, is a citizen of the State of California and
12
13 performs the duties entrusted him as Kern County Sheriff.
14 21. Defendant Kern County Counsel’s Office, collectively, is a political subdivision of

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the State of California, business form unknown, operating within Kern County, State
16
of California.
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22. Defendant Mark L. Nations, individually, is a citizen of the State of California and
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19 performs the duties entrusted him as and as Kern County Counsel.
20 23. James Brennan, individually, is a citizen of the State of California and performs the
21
duties entrusted him as Deputy Kern County Counsel.
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24. Phillip Jenkins, individually, is a citizen of the State of California and performs the
23
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duties entrusted him as Deputy Kern County Counsel.
25 25. Defendant Kern County Planning and Natural Resources Department, collectively, is
26 a political subdivision of the State of California, business form unknown, operating
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within Kern County, State of California.
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26. Defendant Lorelei Oviatt, individually, is a citizen of the State of California and
1
2 performs the duties entrusted her as Director of Kern County Planning and Natural
3 Resources Department.
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27. Plaintiffs do not know the true names of Does 1 through 1000 inclusive, and therefore
5
sues them by those fictitious names. Plaintiffs are informed and believe, and on the
6
7
basis of that information and belief, allege that each of those defendants was in some
8 manner legally responsible for the events and happenings alleged in the Complaint
9 and for Plaintiffs’ injuries and damages. The names and capacity and relationships for
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Does 1 through 1000 inclusive will be alleged by amendment to this Complaint when
11
they are known.
12
13 I.
14 BACKGROUND OF MEDICAL CANNABIS INDUSTRY IN

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KERN COUNTY, CALIFORNIA
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28. In 1996, California voters approved the Compassionate Use Act (CUA), an initiative
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that exempted certain patients and their primary caregivers from criminal liability
18
19 under state law for the possession and cultivation of marijuana. In 2003, the
20 Legislature enacted additional legislation relating to medical marijuana. California

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Health and Safety Code §11362.81 requires the Attorney General to adopt guidelines
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“to ensure the security and non-diversion of cannabis grown for medicinal use by
23
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patients qualified under the Compassionate Use Act of 1996.” (H&S, §11362.81(d).)
25 29. In 2006, Chapter 5.84 was added to the KCOC thereby allowing business licenses to
26 be issued to medical marijuana dispensaries within the unincorporated areas of Kern
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County. In 2008, the State Attorney General, in interpreting the 2003 Act and
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requirements of H&S §11362.81, issued “Guidelines for the Security and Non-
1
2 Diversion of Marijuana Grown for Medical Use.”
3 30. On March 31, 2009, Kern County enacted Ordinance G-7849, thereby repealing parts
4
of the 2006 section of 5.84 and effectively authorizing medical marijuana
5
dispensaries in commercially zoned areas. In August 2010, the Kern County Board
6
7
put in place a moratorium ordinance (G-8079) preventing any “new” medical
8 marijuana dispensaries to be established in unincorporated areas of the County for a

9 period of 45 days to ten months, while the County investigated its options. On August
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2, 2011, the Board extended G-8079 for a period of one year. Then, on August 9,
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2011 the Board voted to extend Ordinance G-8190, which added zoning restrictions
12
13 to KCOC section 5.84.010, and to extend Ordinance G-8191, which were bans on
14 dispensaries for unincorporated areas of Kern County. The County’s approval of G-

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8190 banned medical marijuana dispensaries throughout the County’s jurisdiction.
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The new ordinance would have repealed and replaced the 2009 ordinance if it had
17
become effective. The new ordinance banning dispensaries did not become effective
18
19 because it was suspended by operation of section 9144 of the Elections Code when
20 County received a valid protest petition from its voters, which was filed in September
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2011.
22
31. County’s Board of Supervisors responded in 2012 to the protest petition by: (1)
23
24
presenting County voters with an alternate ordinance called “Referendum Measure
25 G,” and (2) adopting a separate repeal ordinance that stated “Chapter 5.84 of Title 5
26 of the Kern County Ordinance Code is hereby repealed in its entirety.” Chapter 5.84
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was where the 2011 dispensary ban would have been codified and where the
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predecessor 2009 ordinance, authorizing dispensaries in commercially zoned areas

1
2 was set forth. In County’s view, its 2012 repeal ordinance rescinded all prior
3 ordinances codified in Chapter 5.84, including its 2011 attempted ban of medical
4
marijuana dispensaries and the 2009 ordinance that authorized dispensaries in
5
commercial zones.
6
7
32. Measure G was approved by 69 percent of the vote in the June 2012 election. Its
8 provisions authorized dispensaries to operate in industrial zones and subjected them

9 to several restrictions. After the election, some dispensaries located in commercially
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zoned areas filed an action challenging the validity of Measure G, alleging the
11
environmental review required by the California Environmental Quality Act (CEQA;
12
13 Pub. Resources Code, § 21000 et seq.) had not been completed. In that lawsuit, the
14 trial court concluded a CEQA violation had occurred and invalidated Measure G. The
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invalidation of Measure G was upheld by the California Fifth District Court of
16
Appeal in T.C.E.F., Inc., et al. v. County of Kern, (2016) F070043. Through this case
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the County lost in its attempt to prohibit or ban dispensaries and was disallowed from
18
19 banning them through other means.
20 33. Then, in a separate action, the Fifth District Court of Appeal, in the case of County of
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Kern v. T.C.E.F., Inc., et al. (T.C.E.F.), (April, 2016) 246 Cal.App.4th 301, concluded
22
that the County violated Elections Code § 9145 by repealing the 2009 ordinance G-
23
24
7849 – that effectively authorized medical marijuana dispensaries in commercially
25 zoned areas of Kern County. As a result, the Fifth District regarded the 2009
26 ordinance as remaining in full force and effect. The Court unambiguously ruled that
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Kern County “must not take additional action that has the practical effect of
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implementing the essential feature of the protested ordinance.” (Id. at 308, emphasis
1
2 added.)
3 34. The reasoning behind the Fifth District Court of Appeals’ decision in finding that the
4
County violated Elections Code § 9145 by repealing the 2009 Ordinance G-7849 is of
5
utmost importance to the present complaint because the County of Kern, in passing
6
7
and enforcing KCOC §5.86 and the subsequent KCOC §19.08.055 has committed the
8 exact actions the Fifth District warned against. The Fifth District stated:
9 We interpret the phrase “entirely repeal the ordinance” in section
10
9145 as synonymous with “wholly revoke the ordinance” and
“rescind the ordinance in all its parts,” and conclude this meaning
11 limits the additional action a board of supervisors may take to
implement the essential feature of the protested ordinance.
12
Specifically, we conclude the additional action taken by a board
13 may not have the practical effect of implementing the essential
feature of the protested ordinance. In other words, additional action
14 by a board of supervisors violates section 9145 if it fails to return
to the status quo ante on the essential feature of the protested
15
ordinance.
16 Adopting a more lenient test would allow boards of supervisors to
nullify or significantly burden the exercise of the referendum
17 power by repealing a protested ordinance and immediately
taking action that produces, from a practical perspective,
18
essentially the same result. (Citation.) If the Elections Code
19 provisions allowed the essential feature of the protested ordinance
to be implemented by other means, the voters who protested the
20 original ordinance would be forced to (1) invest more time,
money and effort in circulating a new protest petition or (2)
21
acquiesce in the board’s legislative agenda. Even if they
22 obtained enough valid voter signatures in time to protest the
additional action, a board of supervisors could start the process
23 again by repealing the additional action and adopting a slightly
24
modified action that still achieved the essential feature of the
protested ordinance. This cycle could continue until the most
25 determined protestors were worn down, thereby effectively
nullifying the referendum power of local voters. (Citation.)
26 (Id. at 322, emphasis added.)
27
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35. The court further stated that “our interpretation is not limited to additional action that
1
2 achieves a result identical to that of the protested ordinance. Such a narrow
3 interpretation would allow the statute to be easily circumvented by additional action

4
that achieves a slightly modified result.” (Id.) The court concluded that the practical
5
effect of repealing the 2009 ordinance was to prohibit dispensaries, which was
6
7
essentially the same as the ban of dispensaries protested by voters. (Id. at 325.)
8 36. On May 10, 2016, just one month after the Fifth District Court of Appeal ruled that
9 Kern County “must not take additional action that has the practical effect of
10
implementing the essential feature of the protested ordinance” (id), the County of
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Kern passed Ordinance No. G-8630, which added Chapter 5.86 to the KCOC and
12
13 imposed a moratorium on the establishment of new Medical Marijuana Dispensaries
14 in the County (the "moratorium''). In other words, the County “started the process
15
against by adopting a slightly modified action that still achieved the essential feature
16
of the protested ordinance” (T.C.E.F., supra, at 322): banning dispensaries.
17
37. Pursuant to the moratorium, “no Medical Marijuana Dispensar(ies) other than those in
18
19 existence and operating on the effective date of this ordinance, is permitted within the
20 unincorporated area of Kern County during the period of time this ordinance is in
21
effect." The moratorium was extended on June 21, 2016 for ten months and 15 days,
22
pursuant to Government Code section 65858(a).
23
24
38. Section 5.86.030 provided: “From and after the effective date of Ordinance G-8630,
25 May 10, 2016, no medical marijuana dispensary, other than those in existence and
26 operating on the effective date of this ordinance, is permitted within the
27
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unincorporated areas of Kern County during the period of time this ordinance is
1
2 effective.”
3 39. It should be noted that: California Government Code § 65858 provides:

4
(e) When an interim ordinance has been adopted, every
5 subsequent ordinance adopted pursuant to this section, covering
the whole or a part of the same property, shall automatically
6 terminate and be of no further force or effect upon the termination
7
of the first interim ordinance or any extension of the ordinance as
provided in this section.
8
9 40. Ordinance No. G-8630 was a subsequent ordinance imposing a moratorium on all
10 “new” applications for medical marijuana dispensary licenses within Kern County
11 which purported to take effect beyond the termination of the first ordinance (G-7849
12 – enacted March, 2009) and second “Dispensary Ban” ordinance (G-8191 – enacted
13 August, 2011), or any extension of the (G-8630) ordinance – a total of four
14 ordinances in all. Therefore, it violates the plain meaning of section 65858,
15 subdivision (e), and would have been "of no further force or effect" at the time of the
16 ruling in the Fifth District Court of Appeal’s decision in T.C.E.F., supra, 246
17 Cal.App.4th 301, whereby, again, the court ruled the County “must not take additional
18 action that has the practical effect of implementing the essential feature of the
19 protested ordinance.” (T.C.E.F., supra, at p. 308.) In other words, the County was
20 doing exactly what the Court of Appeals told them not to do: enacting legislation that
21 had the practical effect of banning medical marijuana dispensaries.
22 41. Further, subsection (f) of Government Code section 65858 provides:
23
(f) Notwithstanding subdivision (e), upon termination of a
24 prior interim ordinance, the legislative body may adopt another
25
interim ordinance pursuant to this section provided that the new
interim ordinance is adopted to protect the public safety, health,
26 and welfare from an event, occurrence, or set of circumstances
different from the event, occurrence, or set of circumstances that
27
led to the adoption of the prior interim ordinance.
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1 42. The County failed to identify a different set of circumstances from the events that led
2
to the adoption of the three prior emergency ordinances before extending G-8630.
3
Kern County Counsel Mark Nations stated the County simply needed a “time out” to
4
allow the County to “push the reset button.” (See Exhibit “B.”) Nations stated the
5
time would allow the County to evaluate the situation and potential solutions to the
6
dealing with medical marijuana shops, but did not state any different or new
7
8
circumstances requiring another emergency ordinance. According to Mr. Nations’
9 statements no emergency existed to allow the County to extend Ordinance G-8630.
10 Therefore, in addition to the manner in which the County of Kern and its agents,
11 representatives and employees enforce the laws relating to medical cannabis
12
dispensaries, as discussed herein, the present version of Kern County Ordinance
13
Code, §19.08.055 and its predecessor, §5.86, are adverse to the Court’s ruling in
14
T.C.E.F., supra, 246 Cal.App.4th 301.
15
16
A. COMPLETELY IGNORING THE FIFTH DISTRICT COURT OF
17
APPEALS DECISION IN COUNTY OF KERN V. T.C.E.F., KERN
18
19 COUNTY ENACTED AN ORDINANCE THAT BANS MEDICAL
20 CANNABIS DISPENSARIES
21
41. The County completely ignored the Fifth District Court of Appeals decision in
22
County of Kern v. T.C.E.F., Inc., et al., supra, 246 Cal.App.4th at 308, when it passed
23
KCOC, G-8739, including section 19.08.055, on October 24, 2017, which specifically
24
25 states: “Purpose and Application: The purpose of this section is to ban commercial
26 medicinal and recreational cannabis businesses and activities of all kinds[.]” (KCOC,
27
§19.08.055(A), emphasis added.) The County’s decision to amend section 19.08.055
28
ignored and rejected the Appellate Court ruling that dispensaries operating under the
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2009 Ordinance were lawfully operating. (T.C.E.F., supra, 246 Cal.App.4th at 326.)
1
2 Simply stated, section 19.08.055(I) placed a limit on the time within which those
3 existing dispensaries that had been operating since before the moratorium would have
4
to close, but close they still must. Further, pursuant to KCOC section 19.08.055,
5
subsection C, provides: “[n]o local authorization for any of the activities covered by
6
7
the license classifications identified in Business and Professions Code 26050 shall be
8 granted for any zone district in the unincorporated area of the County of Kern.” Thus,
9 in toto, section 19.08.055 is A BAN ON ALL MEDICAL MARIJUANA
10
DISPENSARIES in Kern County. As such, the Ordinance has the practical effect of
11
doing exactly what the Fifth District ordered the County not to do: take additional
12
13 action that has the practical effect of implementing the essential feature of the
14 protested ordinance.” (T.C.E.F., supra, 246 Cal.App.4th at 308, emphasis added.)

15
42. The individual members of Plaintiff Citizens Against Corruption and the individual
16
Plaintiffs hereto had been lawfully able to operate under the 2009 ordinance, G-7849,
17
that effectively authorized medical marijuana dispensaries in commercially zoned
18
19 areas of Kern County.
20 II.
21
THE REQUIREMENTS FOR TEMPORARY LICENSE UNDER 19.08.055(I) --
22
‘AMORTIZATION OF EXISTING CANNABIS DISPENSARY’ -- ARE VAGUE AND
23
24
OVERBROAD AND HAS BEEN SUBJECT TO ARBITRARY ENFORCEMENT ABUSE
25 43. In wearing down protestors to the County’s dispensary ban ordinances, as warned by
26 the Fifth District Court of Appeals in T.C.E.F., supra, at 326, the legislation enacted
27
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by the County was vague and ambiguous and subject to enforcement abuse by County
1
2 officials.
3 44. Subsection (I) of KCOC section 19.08.055 purports to provide an amortization for
4
existing medical cannabis dispensaries. That section provides:
5
Amortization of Existing Medicinal Cannabis Dispensaries.
6 Any medicinal cannabis dispensary which was in operation on
7
or before May 10, 2016, when the moratorium set forth in
former Chapter 5.86 on the establishment of new medicinal
8 marijuana dispensaries went into effect, and is also currently in
compliance with former Kern County Ordinance Code Section
9 5.84.010, for zoning, setbacks and building code shall be
10
deemed to be a temporary lawful medicinal cannabis
dispensary and shall obtain a temporary license from the State
11 of California for a period of time not more than twelve (12)
months beyond the effective date of the ordinance from which
12
this section derives. The planning director shall issue a letter to
13 the State of California authorizing the issuance of a cannabis
license after satisfaction of the following: (i) confirmation that
14 the facility complies with all requirements of former Section
5.84.010 for setbacks and appropriate zoning for a pharmacy;
15
and (ii) an inspection has been completed by the Kern County
16 building inspection division of the interior and exterior of the
building used for the cannabis dispensary for compliance with
17 the building code; and (iii) all work has been completed by the
property owner/or tenant for any deficiencies found. Except as
18
otherwise provided below, any such dispensary shall be
19 allowed to operate at its current location for one (1) year from
the effective date of the ordinance from which this section
20 derives. At the expiration of one (1) year, the dispensary shall
cease operations.
21
22 […]
23 The decision of the planning director shall be final ten (10)

24
calendar days after the date of issuance of the order.
25 An applicant may appeal the decision of the planning director

to the Kern County Board of Supervisors. The applicant may
26 appeal the decision by filing with the planning and natural
27
resources department a request for appeal prior to the time the
decision becomes final. The appeal shall be accompanied with
28 the fee established by the board pursuant to Section 19.06.040

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of this title. The appeal shall include supporting documentation

1
and basis for the appeal. The board of supervisors shall
2 consider the appeal in a public session as part of one of its
regularly scheduled meeting. The matter shall be set on the
3 board agenda by the planning and natural resources department
on the next available agenda. Selection of the date shall be
4
coordinated with the applicant and written notification of the
5 date shall be provided to the applicant. The planning and
natural resources department shall consult with county counsel
6 on the preparation of the matter for the board's consideration. A
7
copy of the report provided to the board shall be sent to the
applicant when the report is normally released to the public by
8 the clerk of the board. A determination made by the board on
the appeal shall be final.
9
10
(KCOC, §19.08.055(I), emphasis added.)
11
45. Subsection J of section 19.08.055, Enforcement, provides for civil and criminal
12
13 enforcement remedies for violations of section 19.08.055.
14 46. A temporary commercial medical cannabis license is and was integral for all
15
Plaintiffs to continue operating their businesses in Kern County. Each individual
16
member of Plaintiff organization applied for the required temporary license and was
17
refused without explanation, despite providing the required documentation pursuant
18
19 to a reasonable interpretation of section 19.08.055, and continues with uneven
20 application process or even complete denial of application in the form of missing

21
documents or simply claiming that such documents were missing resulting in the
22
exact same denial result without having to put it in writing as is the County of Kern’s
23
24
and its’ agents’ goal.
25 47. In order to obtain a commercial medicinal retail cannabis license, the Ordinance
26 requires any person who seeks to operate a commercial medicinal cannabis
27
dispensary first obtain a temporary commercial (retail) cannabis dispensary license
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from the Kern County Planning Department. The Planning Director is the only person
1
2 in Kern County with the authority to grant or deny a license to operate a temporary
3 commercial cannabis dispensary in Kern County and her determination becomes the
4
law and will not be challenged by the Circuit Court judges who accept her findings as
5
law even though the T.C.E.F. decision by the Fifth District Court of Appeals was
6
7
clear and decisive, and most importantly controlling. (See KCOC §19.08.055.) The
8 Ordinance favored by Kern County Board of Supervisors does not allow for any other
9 person to authorize the required license, including that officer’s authorized
10
representative.
11
48. The Ordinance provides no standards or guidelines to guide the Planning Department
12
13 Director in granting or denying the application for temporary commercial cannabis
14 license other than the applicant must show they were “in operation on or before May
15
10, 2016” and that the applicant’s business “is also currently in compliance with
16
former Kern County Ordinance Code Section 5.84.010, for zoning, setbacks and
17
building code.” The ordinance does not provide any standard or guidelines as to how
18
19 the applicants must show they were “in operation on or before May 10, 2016,” and
20 fails to state what documentation must be provided that will assist the Director of the
21
Department of Planning in determining whether the applicant was in operation prior
22
to the moratorium date. Thus, the regulation lends itself to arbitrary violation of due
23
24
process rights. The ‘so-called’ appeals process is different for each person and to
25 date, no two people have been treated equally, whether in a positive manner or
26 negative manner. Some shops remain open, while other shops are raided; some shops
27
are put on the list of approved dispensaries; other shops are taken off the list without
28

- 16
any due process or equal protection to speak-of except for the word of the Planning
1
2 Director. If a dispensary owner is “liked” by the Planning Director, their shop will not
3 be raided and will remain open. However, if the opposite is true, then the business
4
will no longer be in business, the owner and operators will be arrested and assets will
5
be confiscated and forfeited.
6
7
49. KCOC §19.08.055 contains vague and overbroad prohibitions which, because
8 precision is lacking, subject the applicant to enforcement abuse, in that while the
9 section provides that “any medicinal cannabis dispensary which was in operation on
10
or before May 10, 2016 […] shall be deemed to be a temporary lawful medicinal
11
cannabis dispensary and shall obtain a temporary license from the State of
12
13 California[,]” what constitutes “in operation on or before May 10, 2016” is left open
14 to question and arbitrary interpretation. These vague and overbroad prohibitions fail
15
to apply the legal meaning of existence and “in operation” because doing so would
16
not fulfill Kern County's illegal goals of having their friends take over and have a
17
dispensary monopoly in Kern County, as sitting Board member Leticia Perez is being
18
19 accused of as part of her pending criminal charges. The Perez criminal case is set for
20 trial sometime in March of 2019. The Kern County Planning Department’s conduct is
21
misleading, false, and meant to deceive the general public while achieving their
22
criminal and fraudulent goal for Leticia Perez and other sitting Board of Supervisors
23
24
members.
25 A. THE ARBITRARY ENFORCEMENT PRACTICES OF DEFENDANTS

26 DIRECTLY CAUSED PLAINTIFFS’ INJURIES.
27
28

- 17
50. Plaintiffs, and each of them, have been injured in their professional and personal lives
1
2 by the arbitrary and capricious enforcement of the vague and ambiguous requirements
3 set forth in KCOC §19.08.055.

4
51. Business owners applying for temporary cannabis retail license pursuant to the
5
amortization section of the Ordinance have been informed their applications would be
6
7
denied for such extraneous reasons unrelated to the purpose of medical marijuana
8 industry as having retained an attorney whom the County disapproves. For example,
9 Jose Ordaz and Alvaro Ordaz, owners of Big O Relief, a medical marijuana
10
dispensary located in Mojave, California, applied for a license under the applicable
11
statute and were informed their application would not be considered because they had
12
13 retained attorney Abraham Labbad. (See Declaration of Jose Ordaz (Decl. Jose
14 Ordaz), filed herewith.) According to Jose Ordaz, when he confronted Kern County
15
Planning Director Lorelei Oviatt in May, 2018 about the refusal of the County to
16
approve Big O Relief’s application for temporary license and request to place Big O
17
Relief on the County’s list of approved dispensaries, at first Ms. Oviatt told him that
18
19 she had not “received any paperwork regarding Big O Relief’s pre-moratorium
20 status.” (Decl. Jose Ordaz, ¶3.) Then, after Mr. Ordaz insisted the required
21
documentation had been filed with the County, Ms. Oviatt told him that because
22
attorney Abraham Labbad was Big O Relief’s attorney, they would “get nowhere
23
24
because his cases would not be heard.” (Id., ¶4.) The Planning Director of Kern
25 County then suggested to Jose Ordaz: “I know you guys are business men and you
26 seem like nice gentlemen, maybe you should try talking to another attorney like Phil
27
28

- 18
Ganong! 1” Ms. Oviatt then advised Mr. Ordaz to move his dispensary to the outskirts
1
2 of Kern County, possibly in Randsburg, California, and to operate the medical
3 marijuana dispensary as a delivery service instead of a store-front retail operation

4
because, as Ms. Oviatt told Mr. Ordaz, enforcement officials from the County of Kern
5
“will never go out there and check." (Id., ¶8.)
6
7
52. Planning Director Oviatt’s directive that Mr. Ordaz’s application would be denied
8 simply because Big O Relief had retained attorney Abraham A. Labbad, an attorney
9 whose office is located in Burbank, California, is not only an arbitrary and capricious
10
manner of enforcing the requirements of the law, but also shows Kern County’s
11
disdain for Attorney Labbad and anyone not approved by the County. It also shows
12
13 the County’s disdain for anyone who seeks justice, unlike Mr. Ganong, who has
14 worked with Kern County to shut down multiple dispensaries. Kern County
15
appreciates his involvement in the closures of dispensaries even though they are
16
wrongful because they are done under the guise of “voluntary closures,” even though
17
they were accomplished by misleading and fraudulent means of blackballing outsider
18
19 attorneys and their clients in favor of Ganong and his willingness to work the plan of
20 the County to close dispensaries. The Kern County Planning Department Director
21
Lorelei Oviatt made statements that can only be described as lies and fabrications
22
when she insisted that she had not received any documentation concerning Big O
23
24
Relief from the Law Offices of Abraham Labbad, when in fact, at the time the
25 documents were submitted by the Law Office of Abraham Labbad Ms. Oviatt had
26 Kern County Counsel’s Office email Mr. Labbad’s office and demand that he cease
27
1 Phil Ganong is a licensed California attorney with an office in Bakersfield,
28
California.
- 19
all communications with Kern County staff and employees. (See Exhibit “C.”) How
1
2 could Lorelei Oviatt claim to not receive documents or communication on behalf of
3 Big O Relief when I am representing them and at the same time have her attorney
4
complain about receiving communications from me?
5
53. It should be noted that when the Fifth District Court of Appeals ruled against the
6
7
County of Kern in County of Kern v. T.C.E.F., Inc., et al., supra, 246 Cal.App.4th 301,
8 Attorney Abraham Labbad was counsel for T.C.E.F. in that case. Since that decision,
9 it appears the County has decided to “blackball” every client and matter that Attorney
10
Labbad is involved.
11
54. In another matter, as stated above, the County of Kern Planning Department notified
12
13 business owners they were lawfully able to conduct business as “Legal Non-
14 Conforming Medicinal Cannabis Retail Locations,” and then, without explanation

15
and without ability to seek redress, the County decided to revoke the license. For
16
example, David Abbasi, owner of medical marijuana dispensaries Green Cross of
17
North Bakersfield and Green Cross Collective of Kern County, both of which are
18
19 located in Kern County, and Green Cross of Bakersfield, located in the City of
20 Bakersfield, was notified by the Planning Director that Green Cross of North
21
Bakersfield was approved to operate as a legal non-conforming medical cannabis
22
retail location on September 22, 2018. (See Exhibit “D.”) Then, without explanation
23
24
and without ability to seek redress, Mr. Abbasi received notice that his dispensary
25 was no longer a legal non-conforming location. (Exhibit “E.”) The letter of

26 revocation received by Mr. Abbasi informed him that his license to operate had been
27
revoked because it had been determined that Green Cross had not been in “continuous
28

- 20
operation” during the period evaluated by the County. (Id.) Mr. Abbasi was not given
1
2 an opportunity to rectify the perceived problem before (or after) the County, through
3 the actions of Planning Director Lorelei Oviatt, cancelled his previously authorized
4
status as a legal non-conforming medicinal cannabis dispensary.
5
55. Kern County Board of Supervisors member Leticia Perez, a personal friend of David
6
7
Abbasi’s, informed Mr. Abbasi that if he continued to associate with Attorney
8 Abraham Labbad, she could no longer talk to him. (See Exhibit “F” -- including text
9 messages between David Abbasi and Leticia Perez.)
10
56. David Abbasi, owner of Green Cross of North Bakersfield and Green Cross of Kern
11
County, is aware of Lorelei Oviatt and Fernando Jara (Supervisor Leticia Perez’s
12
13 husband) referring to Attorney Abraham Labbad as the “Russian Mob Lawyer.” (See
14 Exhibit “G.”) Mr. Abbasi has also been informed by members of the Kern County
15
Board of Supervisors that Attorney Labbad has been “blackballed” in Kern County
16
and that his clients will not be approved for any permits or licenses. (Id.)
17
57. Supervisor Perez provided Mr. Abbasi with the name of an attorney whose office was
18
19 located in Kern County that the County prefers to do business with. Supervisor Perez
20 and David Abbasi even met with the attorney together. (Id.) Supervisor Perez also
21
instructed him to contact Planning Director Oviatt about being placed back on the list
22
of dispensaries authorized to operate in Kern County. (Id.)
23
24
58. After communicating with Supervisor Perez, David Abbasi contacted Director Lorelei
25 Oviatt about having Green Cross of North Bakersfield put back on the County’s list
26 of authorized dispensaries. Ms. Oviatt informed him that in order to have his
27
dispensary put back on the list, he needed to use “magic words” in an email to her
28

- 21
office that said his business was “open by appointment only.” (See Exhibit “H” –
1
2 email communications between David Abbasi and Lorelei Oviatt.) Ms. Oviatt advised
3 that using the “magic words” would help to obtain a letter of legal status for licensing
4
purposes. (Id.) After he sent her the requested information, Lorelei Oviatt informed
5
David Abbasi that she would “let [him] know” regarding the legal status of his
6
7
dispensary within two weeks. (Id.) However, after Ms. Oviatt was apparently
8 offended by the “tone” of Mr. Abbasi’s email, she informed him that she would not
9 be returning his call. (Id.) To date, Green Cross of North Bakersfield and David
10
Abbasi have not received any response from the Planning Department or Lorelei
11
Oviatt regarding their application for temporary cannabis retail license.
12
13 59. Plaintiffs were injured as a result of the actions described herein, whereby Defendants
14 denied Plaintiffs’ applications for temporary cannabis retail license because of the
15
attorney they retained and due to the arbitrary enforcement practices of the Planning
16
Director. The arbitrary and capricious manner in which Defendants, and each of
17
them, authorize, deny, or revoke previously authorized licenses, as a result of the
18
19 vague and ambiguous terms of the Ordinance, violates each applicant’s rights to due
20 process and equal protection of the laws.

21
22
A. DECISIONS OF THE PLANNING DEPARTMENT DIRECTOR ARE FINAL AND
23
24
ANY ATTEMPT AT APPEAL THROUGH THE PROVISIONS OF SECTION
25 19.08.055 ARE FUTILE BECAUSE THE PLANNING DIRECTOR BELIEVES SHE

26 HAS THE FINAL SAY.
27
28

- 22
60. Plaintiffs are informed and believe, and based on her own sworn deposition testimony
1
2 (see Exhibit “I” 2), that Kern County Director of Planning Lorelei Oviatt is the sole
3 person on behalf of Kern County who makes the decisions as to which applications
4
for commercial medical cannabis dispensaries are approved or denied. (See, e.g., Ext.
5
B, p. 55, ll 15-19; p. 57, ll 22-25 – p. 58, ll 1-2.) Plaintiffs are also informed and
6
7
believe and based on this belief allege that Ms. Oviatt has the sole authority to grant
8 or deny the application based entirely on the information she reviews and on her own
9 opinion. Plaintiffs are further informed and believe and based on this belief allege the
10
decision of the Kern County Planning Department is a subjective decision and is not
11
based entirely on standardized criteria. In some instances, applications and other
12
13 documents that were sent for review were not reviewed at all. Planning Director
14 Oviatt has stated that in other instances she had sole discretion to make the
15
determination.
16
61. Kern County, by and through the actions of the Planning Director, not only violated,
17
and continues to violate, the due process rights of Plaintiffs and others similarly
18
19 situated when a determination of legality is made, they go a step further and deny all
20 process. For example, when Green Mile submitted an application for temporary
21
license pursuant to subsection (I) of the Ordinance believing their legal status as a
22
business entity would be based on dates and other standardized information, as a
23
24
reasonable reading of the Ordinance would suggest, the Kern County Planning
25 Director simply ignored the applicants’ calls and emails as if no application had been
26
27
2 Taken in the matter of County of Kern vs. Organix, Inc., case number BCV-18-
28
100999; Deposition of Lorelei Oviatt taken on September 04, 2018.
- 23
submitted or that no application existed. (See e.g., Declaration of Jose Ordaz and
1
2 Declaration of Alvaro Ordaz, submitted herewith.) While the applicant was awaiting
3 a response on their properly-filed documentation, law enforcement officers from the

4
County of Kern entered Green Mile and raided, destroyed property, and committed an
5
otherwise unlawful seizure of property and forced Green Mile to close. Green Mile
6
7
was simply wanting due process to prove legality and instead was raided and its
8 owner, Saleh Rafeh was arrested on felony charges and driven two hours to
9 Bakersfield for holding. (Id.) The sham criminal charges were later rejected by the
10
Kern County District Attorney’s office.
11
62. Despite the fact that section 19.08.055(I) provides that an “applicant may appeal the
12
13 decision of the planning director to the Kern County Board of Supervisors” within ten
14 days of the director’s decision, as long as a fee is paid, supporting documentation and
15
“basis for appeal” is provided, that process is lacking or entirely not available if the
16
applicant does not receive notice that their application was denied or reason why the
17
application was rejected.
18
19 63. The Planning Director, who has control over all requests for appeals pursuant to
20 §19.08.055(I), has testified under oath that denial of an application of temporary

21
medicinal cannabis license from the Kern County Planning Department “IS NOT
22
APPEALABLE.” (See Ext B, p. 70, ll 14-25; p. 72, ll 13-16.) KCOC section
23
24
19.08.055(I) does not provide a review process in the event an application is denied
25 and the applicant is not informed why the application has been rejected, or the
26 application or documentation simply disappears and the Kern County agents
27
responsible to care for such applications or documents deny ever receiving said
28

- 24
documents. (See Decl. Jose Ordaz and also see Declaration of Alvaro Ordaz,
1
2 submitted herewith.) Plaintiffs have not been informed why their applications for
3 temporary retail medicinal cannabis dispensary licenses were denied, only that they
4
were not accepted. Even if a rejected applicant were to appeal to the Board of
5
Supervisors by submitting a request to the Planning Director as instructed in
6
7
§19.08.055(I), the request would be futile because the Planning Director believes no
8 appeal is available (Ext B, p. 70, ll 14-25 – p. 71, ll 1-2; p. 73, ll 5-7) and she has the
9 final say (Ext B, p. 72, l 25 – p. 73, l 1). Even if the parties are heard by the Board of
10
Supervisors of Kern County, it is a sham due process hearing since rebuttable
11
evidence is not allowed. At the Board hearing the party or their representative is
12
13 allowed to make a statement, however, after the statement is made other evidence will
14 be presented without the opportunity to refute or rebut such evidence.

15
64. Although the stated intent of KCOC §19.08.055 is to actually ban such dispensaries,
16
it is in fact a municipal mode of regulating and controlling business in an arbitrary
17
and capricious manner, lacking in the due process requirements guaranteed by the
18
19 United States Constitution. Section 19.08.055 lacks any procedure or means,
20 administrative or judicial, by which permit decisions can be reviewed to determine

21
their validity. KCOC section 19.08.055 is unconstitutional on its face and as applied
22
to all Plaintiffs in this case.
23
24
65. There is between the parties an actual controversy as set forth above. All Plaintiffs are
25 suffering and have suffered irreparable injury to property and emotional injuries and
26 said injuries continue to be threatened with irreparable harm in the future by reason of
27
the acts complained of here. A substantial loss or impairment of due process has
28

- 25
occurred and will continue to occur so long as the conduct of Defendant County of
1
2 Kern and each Defendant, whose conduct in some way contributed to the injury of
3 Plaintiffs herein, continues.

4
66. Individual members of Plaintiff Citizens Against Corruption, and each Plaintiff
5
hereto, have no plain, adequate, or complete remedy to redress the wrongs
6
7
complained of other than this action. Any other remedy to which Plaintiffs could be
8 remitted would be attended by such uncertainties and delays as to deny substantial

9 relief, involve a multiplicity of suits, and cause further irreparable injury, damage,
10
and inconvenience to Plaintiffs and to those similarly situated. The award of damages
11
to Plaintiff Citizens Against Corruption is not adequate to protect its’ members from
12
13 the continuing police conduct and the chilling effect it has on the exercise of their
14 constitutional rights.
15
III.
16
KERN COUNTY’S DUE PROCESS VIOLATIONS HAVE OCCURRED SINCE
17
BEFORE ENACTMENT OF KCOC SECTION 19.08.055
18
19 67. Prior to enactment of KCOC §19.08.055 and its amortization section, Plaintiff
20 Citizens Against Corruption member, Big O Relief, a California corporation,

21
submitted documents to the Kern County Planning Director to show that it was in fact
22
“in existence and operating” prior to the effective date of the moratorium that had
23
24
been established in former KCOC §5.86. Big O Relief’s actions were in response to a
25 Complaint for Preliminary and Permanent Injunction for Violation of Kern County
26 Ordinance Code, §5.86, that was filed by the County against Big O Relief on July 28,
27
2016. (Kern County Superior Court, Case No. BCV-16-101782.) The issue of the
28

- 26
County’s complaint was whether Big O Relief was a valid dispensary under Kern
1
2 County Ordinance Code §5.86, which established a moratorium on all new
3 dispensaries not in existence and operating on or before May 10, 2016 (the same
4
moratorium identified in KCOC section 19.08.055).
5
68. According to the State of California, it should be easy to show that a business entity is
6
7
“in existence and operating,” especially if that business was required to pay
8 California taxes during the period in question for business activity that generated
9 income. Likewise, the State of California identifies that a business is doing business if
10
that business is a taxpayer that is actively engaged in any transaction for the purpose
11
of financial or pecuniary gain or profit in California. On or about September 26,
12
13 2017, a letter was sent by the Law Office of Abraham Labbad to the Kern County
14 Board of Supervisors describing the documents that had been previously sent to the
15
Planning Department on behalf of Big O Relief. (See Exhibit “J.”) A copy of the
16
documents submitted to the Planning Department was included with the letter to the
17
Board of Supervisors. In other words, the County and Planning Director received the
18
19 documents at least two separate times. As stated above, Jose Ordaz was told by
20 Lorelei Oviatt that she did not receive any such documents on behalf of Big O Relief
21
from the Law Office of Abraham Labbad. (Decl. Jose Ordaz, ¶3.) Such claims by the
22
Kern County Planning Department are false and are contradicted by letters and emails
23
24
to the contrary. At the same time clients are told their letters and supporting
25 documents are nonexistent if sent from the Law Office of Abraham Labbad, Kern
26 County Counsel's Office specifically emailed Mr. Labbad telling Abraham Labbad to
27
cease further communications with all County employees and other departments
28

- 27
under threat of sanction as well as bar complaints. (See Exhibit C.) The blackballing
1
2 of Attorney Abraham Labbad by the County of Kern and all Defendants has resulted
3 in the denial of due process and equal protection of the laws for Plaintiffs, and each of
4
them, as clients of Attorney Labbad or for being associated with Attorney Labbad.
5
69. Plaintiff Citizens Against Corruption member, Big O Relief provided the Planning
6
7
Director with receipts of product delivery/sales from Big O Relief to clients that
8 showed it had been “in existence and operating” between April 26, 2016 and May 6,
9 2016. Big O Relief also provided documents showing it was registered with the
10
California Secretary of State’s Office as operating in California as of October 22,
11
2009, and had obtained a “Seller’s Permit” from the California State Board of
12
13 Equalization to operate in Mojave, California. In addition, they provided documents
14 showing that on May 9, 2016 Defendants formalized a lease for retail property in
15
Mojave, California, at a location they had previously been occupying. All of the
16
above indicated that Big O Relief was “in existence” and “operating” prior to the May
17
10, 2016 moratorium, but the County of Kern and Planning Director Lorelei Oviatt
18
19 denied their evidence without explanation of how it failed to satisfy the requirements
20 of section 5.86. A decision on the validity of Big O Relief’s proof of evidence

21
showing they were in existence and operating prior to the moratorium in Kern County
22
Superior Court case number BCV-16-101782 was not reached because judgment was
23
24
entered for the default of Big O Relief without reaching any of the merits of the
25 matter. (See Exhibit “K”, Minute Order, dated August 22, 2017, in Case Number
26 BCV-16-101782.)
27
28

- 28
70. The Board of Supervisors held a hearing on September 26, 2017, to consider a
1
2 determination of a public nuisance and a petition to impose administrative penalties
3 for violations of County Ordinance Code Chapter 5.85, cultivation of medical

4
marijuana, at the location of Big O Relief. (See
5
http://kern.granicus.com/MediaPlayer.php?view_id=33&clip_id=3590)
6
7
71. During the hearing County officials stated the value of the products located on the
8 property as of September 2017 was six million dollars ($6 mil.) The public hearing
9 that occurred regarding Big O Relief’s nuisance and violation of Ordinance 5.85
10
determination was a sham hearing in that, although Big O Relief’s attorney Abraham
11
Labbad was allowed to briefly speak on behalf of his client, he was not allowed to
12
13 rebut any statements made by Board members or others who contradicted his
14 statements with information that was false and misleading. Multiple Kern County
15
agents, including Kern County Sheriff, Kern County Counsel's Office member Mark
16
Nations, and other department heads, presented testimony and other evidence to the
17
Board. However, the Board did not allow Mr. Labbad to refute or provide contrary
18
19 evidence to the factual inaccuracies that were being presented by each and every one
20 of Kern County’s agents who presented at the hearing. When Mr. Labbad attempted
21
to refute the inaccurate information, he was told he must be quiet and sit down or else
22
he would be removed from chambers, including by Sheriff’s officers who were
23
24
present at the hearing. The Board made its decision based on the incomplete
25 information provided during the limited time given by the speakers to the Board.
26 72. During the hearing, the husband of Supervisor Leticia Perez, Fernando Jara, sent text
27
messages to David Abbasi, who were both in attendance at the Board meeting,
28

- 29
suggesting the Board had already decided the issue prior to the hearing and that
1
2 Attorney Labbad was only getting to speak to provide the appearance of due process.
3 (See Decl. of David Abbasi.) Obviously, due process is not satisfied if the Board had
4
already made its decision prior to the hearing.
5
73. Attorney Labbad was not allowed to present evidence rebutting information that was
6
7
later introduced that Big O Relief had not submitted documents showing it was in
8 existence and operating prior to May 10, 2016. On August 24, 2017, Big O Relief
9 was raided by law enforcement officials of Kern County and its products and property
10
were confiscated by County officials.
11
74. It is important to note that the requirements to show that a business was in existence
12
13 and operating under former section 5.86 are similarly vague and ambiguous as those
14 under section 19.08.055(I) (Ordinance):

15
Section 5.86.030 provided:
16
“From and after the effective date of Ordinance G-8630, May 10,
17 2016, no medical marijuana dispensary, other than those in
existence and operating on the effective date of this ordinance, is
18
permitted within the unincorporated areas of Kern County during
19 the period of time this ordinance is effective.”
20
KCOC, §19.08.055(I) provides:
21
22 “Any medicinal cannabis dispensary which was in operation on or

before May 10, 2016, when the moratorium set forth in former
23 Chapter 5.86 on the establishment of new medicinal marijuana
24
dispensaries went into effect, …”
25
75. In both ordinances, Kern County uses terminology that is/was vague and ambiguous
26
27
and left open to question and subject to arbitrary interpretation. The County’s refusal
28 to accept the documentation presented by Big O Relief to show they were in existence

- 30
and operating prior to the May 10, 2016 moratorium was based on the Planning
1
2 Director’s interpretation of the vague and ambiguous requirements set forth in the
3 Kern County Ordinance Code pertaining to medical marijuana dispensaries. The

4
exact same thing that had happened to the remaining Plaintiffs when they were denied
5
a temporary retail cannabis license by the County of Kern. As such, the County of
6
7
Kern, by and through the Kern County Planning Director, has arbitrarily denied
8 Plaintiffs the right to due process and thereby caused actual damages, and in some
9 instances physical injury to persons involved in the medical marijuana dispensary
10
industry in Kern County. Such conduct being complained in this action has resulted in
11
raids, confiscation of property, destruction of property, forfeitures and emotional
12
13 damages. In fact, a person was shot and killed during the enforcement activities of at
14 least one raid of a dispensary in Bakersfield, in which Kern County Sheriff’s officers
15
participated as part of a joint city and county task force created by Kern County
16
Board of Supervisors member Zack Scrivner (see Exhibit “L” – press release by
17
Zack Scrivner).
18
19 76. Plaintiffs are informed and believe and based on this belief allege that based on the
20 political and financial climate in Kern County surrounding the marijuana debate have
21
placed extraordinary pressures on the Kern County Sheriff’s Department and Sheriff
22
Donny Youngblood. As a result of these pressures, Plaintiffs are informed and believe
23
24
that law enforcement officers are using undue force to enforce local ordinances and
25 criminal laws that place otherwise honest business owners, like the individual
26 Plaintiffs and members of Citizens Against Corruption here, in constant fear of being
27
assaulted and/or killed, as happened to the individual during the raid of a medical
28

- 31
marijuana dispensary recently. Sheriff Donny Youngblood has stated that he believes
1
2 it is better to kill a suspect than to injure them during an arrest. (See
3 https://www.cnn.com/2018/04/10/us/donny-youngblood-kern-county-california-
4
trnd/index.html.) Plaintiffs believe operating their businesses in constant fear of
5
bodily and emotional harm is reasonable under the circumstances in Kern County and
6
7
violate their Constitutional guarantees of due process and equal protection of laws. If
8 not for the unnecessary force and tactics demanded by Defendant Kern County
9 Sheriff’s Department and Sheriff Donny Youngblood during the several raids on
10
Plaintiffs’ various dispensaries and similarly situated shops, the person killed during
11
the raid discussed above would still be alive and Plaintiffs would not live in fear for
12
13 their safety and the safety of their families.
14 77. Lorelei Oviatt spoke of a “group from L.A.” that the County “favored” and that was
15
interested in opening medical marijuana dispensaries in Kern County despite the
16
County, by and through the actions of the Board of Supervisors, stating that they
17
intended to ban all medical marijuana dispensaries. During a Board of Supervisors
18
19 meeting on August 22, 2017, two days prior to Big O Relief being raided by Kern
20 County law enforcement officers, Planning Director Oviatt stated that she had
21
assurances that once the “L.A. Group” was given the licenses under the then-
22
proposed cannabis legislation, which included the later-enacted “Option A”
23
24
legislation that became KCOC section 19.08.055, the L.A. Group would file civil
25 lawsuits to close down the existing dispensaries the County themselves could not
26 legally close. Ms. Oviatt stated the L.A. group had done this before in Los Angeles
27
with “success.” The preference of the “group from L.A.” over all businesses already
28

- 32
in existence in Kern County is counter to the stated purpose of both ordinance 5.86
1
2 and subsequent section 19.08.055.
3 78. The “L.A. Group” of whom Lorelei Oviatt spoke was later determined to be
4
Industrial Partners Group (IPG), an organization from Pacific Palisades, California,
5
that strives to be “one of the largest cannabis landlords in California[,]” according to
6
7
its website. (See www.industrialpartnersgroup.com/ipg-team.) Plaintiffs are informed
8 and believe and based on this belief allege that Ben Eilenberg, legal counsel for IPG,
9 is Caucasian, and Steph Smith and C. Martin Smith, principals of IPG, both also
10
appear to be Caucasian. Plaintiffs are informed and believe and based on this belief
11
allege the “L.A. Group” is Industrial Partners Group had worked with Supervisor
12
13 Leticia Perez. Supervisor Perez has been criminally charged with violating the
14 Political Reform Act, specifically Government Code sections 87100, for conflict of
15
interest while a Supervisor for voting on marijuana legislation, a subject in which her
16
husband, Fernando Jara, has personal and professional interests.
17
79. The “Option A” legislation that was enacted in October 2017 (KCOC, §19.08.055 --
18
19 Ordinance) provided for an amortization program that would permit twenty-two (22)
20 existing court-determined legal retail medicinal dispensaries to operate for one year
21
with temporary state license for medicinal cannabis only. (See Exhibit “M.”)
22
However, as described above, in practice the County failed to include this due process
23
24
and equal protection provision in the final version of the Ordinance, as the Planning
25 Director was given the only say in who was granted the temporary licenses.
26
///
27 ///
28 ///

- 33
IV.
1 IN ADDITION TO THE ARBITRARY AND CAPRICIOUS ENFORCMENT OF KERN

2
COUNTY ORDINANCES, KERN COUNTY HAS VIOLATED PLAINTIFFS’ EQUAL
3
PROTECTION OF THE LAW DUE TO THEIR ETHNICITY
4
80. Plaintiffs allege that Defendants have denied Plaintiffs’ rights to equal protection of
5
the laws based on ethnicity.
6
7
81. Members of Citizens Against Corruption include business owners from diverse ethnic
8 backgrounds. David Abbasi, owner of Green Cross of Kern County and Green Cross
9 of North Bakersfield, is of Middle Eastern descent. Alvaro Ordaz and Jose Ordaz,
10
owners of Big O Relief, are of Mexican descent. Saleh Rafeh, owner of The Green
11
Mile, is of Middle Eastern heritage. As noted above, Defendants, and each of them,
12
13 have stated or shown a disdain for Attorney Abraham Labbad and refuse to work with
14 him or any businesses or persons who retain his services: Abraham Labbad is from
15
the Middle East also. Plaintiffs are informed and believe and based on this belief
16
assert that each Plaintiff has been denied equal treatment under the laws because of
17
their ethnicity.
18
19 82. Members of Citizens Against Corruption have been raided by law enforcement
20 officers for alleged violation of KCOC §19.08.055 and have resulted in criminal
21
arrest. In one such instance, Saleh Rafeh, owner/operator of The Green Mile, was
22
arrested when officers raided The Green Mile on November 6, 2018 citing violation
23
24
of KCOC § 19.08.055(B), H&S §11366 and H&S §11359(B). Mr. Rafeh is of
25 Middle-Eastern descent. When his business was raided by Kern County Sheriff’s
26 officers, Mr. Rafeh was charged with felony violation of H&S §11366, despite the
27
fact that the County knew or should have known of the protections provided to
28

- 34
medical marijuana caregivers and providers pursuant to H&S §11362.775. The arrest
1
2 was an obvious act of harassment and a sham. In addition to felony charge, Mr. Saleh
3 was charged with violating KCOC §19.08.055 and misdemeanor violation of H&S
4
§11359(B) offenses. After Mr. Saleh was forced to suffer the indignity of arrest, he
5
was required to post bail in the amount of $20,000. (See Exhibit “N.”) The criminal
6
7
charges were rejected by the Kern County District Attorney’s Office without bringing
8 a formal complaint.
9 83. Section 19.08.055(J)(2), Enforcement, provides:
10
J. 2. Any person, business, or owner or possessor of any property
11 who violates this section pertaining to commercial cannabis
activity, or who, with the lawful authority to prevent it, causes,
12
permits or allows such a violation, is guilty of a misdemeanor
13 punishable by a fine of not more than one thousand dollars
($1,000.00) or by imprisonment in the county jail for a time not
14 exceeding six (6) months, or by both such fine and imprisonment.
15
16 84. As noted in section 19.08.055(J)(2), any person who violates this section pertaining to
17 commercial cannabis activity is guilty of a misdemeanor, not a felony. However,

18
despite the fact that the statute unambiguously states that the criminal charge for
19
someone whose charge arises from a violation stemming from commercial cannabis
20
activity is to be a misdemeanor violation, unlike others similarly situated Saleh Rafeh,
21
22 a Middle-Easterner, was charged with a felony violation of H&S §11366, which is a
23 wobbler offense that could be charged as either a misdemeanor or by imprisonment in

24
prison (thereby making it a felony) and transported all the way into Bakersfield from
25
Mojave, California by a back road that takes approximately 2 hours due to its winding
26
27
roads and high truck traffic.
28

- 35
85. In yet another instance of inappropriate violations of individuals’ equal protections of

1
2 the laws related to the medical marijuana industry, on August 17, 2018, Kern County
3 officials raided a medical marijuana dispensary in Rosamond, California, called

4
Green Empire. During execution of the warrant, three persons were arrested outside
5
the facility and charged with misdemeanor possession of marijuana for sale, H&S
6
7
11359(B), even though none of the three persons had marijuana on them and none
8 were in the dispensary at the time of arrest. Plaintiffs are informed and believe and
9 thereon allege that all of the persons arrested outside the Green Empire dispensary on
10
August 17, 2018 are of Middle Eastern descent. Kern County Sheriff’s officers were
11
serving a warrant on Green Empire for operating in violation of KCOC §19.08.055.
12
13 86. Plaintiffs are informed and believe and based on this belief allege that Defendants’
14 denial of equal protection of the laws and unfair treatment under the laws was due to
15
Plaintiffs’ ethnicity. Plaintiffs are informed and believe and based on this belief allege
16
that although other shops were raided on the same day as The Green Mile, no other
17
shop owner or manager was arrested. Furthermore, in the entire County of Kern
18
19 Plaintiffs are unable to find anyone else who was charged with a felony criminal
20 charge in association with violation of Kern County Ordinance Code relating to

21
medical marijuana dispensaries, other than The Green Mile’s owner, Saleh Rafeh.
22
87. Plaintiffs are informed and believe and based on this belief allege that medical
23
24
cannabis dispensary owners who are Caucasian and who have had complaints served
25 on their businesses within Rosamond, Kern County, for violating KCOC, §19.08.055,
26 or other ordinances related to medical marijuana dispensary violations, have not been
27
28

- 36
criminally charged or have not had their dispensaries raided by Kern County Sheriff’s
1
2 officers.
3 A. DISCRIMINATION AGAINST MINORITIES BY THE COUNTY OF KERN IS

4
NOT UNIQUE TO THE MEDICAL CANNABIS INDUSTRY.
5
1. THE LONE HISPANIC MEMBER OF THE KERN COUNTY BOARD OF
6
7
SUPERVISORS HAS ALLEGED KERN COUNTY SINGELED HER OUT
8 AND DISCRIMINATED AGAINST HER

9 88. Kern County Board of Supervisors member Leticia Perez recently made a public
10
statement that she believes that law enforcement in Kern County has discriminated
11
against her. (See Exhibit “O.”) Kern County Supervisor Leticia Perez was charged
12
13 with violating two misdemeanor counts involving failing to disclose conflicts of
14 interest while serving on the Board of Supervisors. In her statement, Supervisor Perez
15
alleged that at least one other local elected official was found to be in violation of the
16
same statute as Perez, but that elected official had not been criminally prosecuted.
17
(Id.)
18
19 2. DISCRIMINATION BY THE KERN COUNTY BOARD OF SUPERVISORS IS
20 WELL KNOWN: A COURT RECENTLY DETERMINED THE BOARD

21
DISCRIMINATED AGAINST ITS OWN MINORITY CITIZENS.
22
89. A Hispanic coalition sued the County of Kern over redistricting lines for County
23
24
elections based on ethnic diversity. In February 2018, the U.S. District Court for the
25 Eastern District of California determined that based on the redistricting plan that had
26 been approved in 2011, the County had discriminated against Hispanics by violating
27
the U.S. Voting Rights Act. (See Exhibit “P.”) Essentially, the court held, among
28

- 37
other things, that the majority in Kern County votes sufficiently as a bloc to usually
1
2 defeat Latino-preferred candidates and, under the totality of the circumstances, the
3 adopted districting for electing the Kern County Board of Supervisors is not equally
4
open to participation by Latino voters. (See Exhibit C, p. 69, ll 24-27.)
5
3. THE COUNTY OF KERN HAS BEEN INVESTIGATED BY THE
6
7
CALIFORNIA ATTORNEY GENERAL’S OFFICE AND THE ACLU FOR
8 REPORTS OF EXCESSIVE FORCE AND VIOLATIONS OF CIVIL RIGHTS

9 90. On December 22, 2016, California Attorney General Kamala Harris opened civil
10
pattern or practice investigations into the Kern County Sheriff's Office and the
11
Bakersfield Police Department. (See Exhibit “Q.”) According to AG Harris, "These
12
13 investigations will objectively, impartially, and thoroughly examine whether the Kern
14 County Sheriff’s Office or the Bakersfield Police Department engaged in a pattern or

15
practice of excessive force or other civil rights violations.” (Id.) She went further to
16
state the purpose of the investigation was “to address any civil rights violations or
17
other issues that we may find during these investigations." (Id.)
18
19 91. In a report published in November 2017 by the ACLU titled Patterns & Practices of
20 Police Excessive Force in Kern County, the ACLU of California found that both Kern
21
County Sheriff’s Office (KCSO) and Bakersfield Police Department (BPD) have
22
engaged in patterns and practices that violate civil rights. (See Exhibit “R.”)
23
24
According to the two-year investigation, KCSO and BPD officers have engaged in
25 patterns of excessive force—including shooting and beating to death unarmed

26 individuals and deploying canines to attack and injure— as well as a practice of filing
27
intimidating or retaliatory criminal charges against individuals they subject to
28

- 38
excessive force. (See Exhibit I, p. 1.) The report found that KCSO shot and killed “far
1
2 more than other Sheriff’s departments in counties with equivalent population sizes.”
3 (Id., p. 2.)
4
92. The ACLU report also found that:
5
The disparate impact of BPD’s shootings on communities of color
6 is also troubling. Sixty-five percent of the people shot and killed by
7
BPD officers since 2013 were Latino, though Latinos comprise
only 45% of the city’s total population. Of the 6 cases we
8 identified where BPD officers shot someone unarmed, 4 of the
people shot were Latino, and another was black. These patterns
9 also raise serious legal concerns. All people, regardless of race or
10
ethnicity, are entitled under the Constitution to the equal protection
of their law enforcement officers, and police violence that
11 disparately impacts racial minorities may violate state and federal
antidiscrimination laws.
12
(Id., p. 3.)
13
14
FIRST CAUSE OF ACTION
15
16 (VIOLATION OF 42 U.S.C. § 1983)
17 93. Plaintiffs incorporate by reference all preceding paragraphs as if fully restated herein.
18
94. The Ordinance, Kern County Ordinance Code, §19.08.055, is an unconstitutional
19
abridgment on its face and as applied of the Plaintiffs’ affirmative rights to due
20
process under the United States Constitution, Fourteenth Amendment. Defendants’,
21
22 and each of their, enactment of KCOC §19.08.055 to Plaintiffs’ application for
23 temporary cannabis retail license has resulted in the denial of any articulable standard
24
with which Plaintiffs could reasonably abide to obtain a temporary medical retail
25
cannabis license, as provided in KCOC §19.08.055(I). As such, Plaintiffs have been
26
27
denied the ability to operate their otherwise lawful businesses and have raided by law
28

- 39
enforcement officers. In some instances, as described herein, owners of Plaintiff

1
2 businesses were arrested and charged with violating criminal law.
3 95. The Ordinance, Kern County Ordinance Code, §19.08.055, on its face and as applied
4
or threatened to be applied, is unconstitutionally vague and overbroad. The vague,
5
overbroad and ambiguous terminology used in KCOC §19.08.055 is subject to
6
7
erroneous interpretation by Defendants, and in fact, as described above, has been
8 interpreted in such an arbitrary manner that Plaintiffs have been deprived an

9 opportunity to obtain a temporary cannabis retail license despite Plaintiffs’ numerous
10
attempts at satisfying the requirements of the Ordinance. The procedures for licensing
11
under the Ordinance are sufficiently lacking in procedure that the risk of similar
12
13 violations as those described above are likely to continue. A more definite statement
14 of requirements for what documentation should be submitted by applicants for license

15
should be made to KCOC §19.08.055(I).
16
96. The Ordinance, Kern County Ordinance Code, §19.08.055, on its face and as applied
17
or threatened to be applied, is and has been subject to unfair procedures and a biased
18
19 decisionmaker committing arbitrary enforcement abuse. In some circumstances, as
20 described herein, the County of Kern, by and through the actions of Planning Director
21
Lorelei Oviatt, denied the applications of individual Plaintiffs for reasons unrelated to
22
the requirements of the Ordinance, such as for such superfluous reasons as having
23
24
retained Attorney Abraham Labbad, an attorney whose office is not located in Kern
25 County.
26 97. The Ordinance, Kern County Ordinance Code, §19.08.055, on its face and as applied
27
or threatened to be applied, does not serve a rational governmental interest. KCOC
28

- 40
§19.08.055 states its purpose is to “ban commercial medicinal and recreational

1
2 cannabis businesses and activities of all kinds[.]” (KCOC, §19.08.055(A), emphasis
3 added.) The Ordinance has the exact same practical effect as the ban of dispensaries
4
the County was ordered to prevent by the Fifth District Court of Appeals in County of
5
Kern v. T.C.E.F., et al, supra, 246 Cal.App.4th at 308. Subsection (I) of the Ordinance
6
7
provides an amortization period for dispensaries that were in operation prior to May
8 10, 2016, to be allowed to operate for a temporary period. (KCOC §19.08.055(I).)

9 However, the fact that the amortization period is only temporary and ALL licensed
10
businesses under the Ordinance are required to close anyway at the end of the stated
11
time, the Ordinance still enacts the forbidden BAN on dispensaries, as ordered by the
12
13 Fifth District. (T.C.E.F., supra, 246 Cal.App.4th at 308.) When these facts are coupled
14 with the manner in which the County of Kern and Defendants are arbitrarily granting
15
temporary licenses to only those medical cannabis dispensaries deemed worthy of
16
obtaining a license, as stated herein, the Ordinance on its face and as applied does not
17
serve a rational governmental interest. Because the Ordinance is irrational,
18
19 unreasonable, and unfairly enforced, its application violates Plaintiffs’ rights to the
20 due process guarantee of the Fourteenth Amendment to the United States

21
Constitution.
22
98. None of the Plaintiffs have waived their rights to due process or equal protection by
23
24
any Defendant in the present matter.
25 99. The Ordinance, Kern County Ordinance Code, §19.08.055, fails to adequately advise,
26 notify, or inform persons applying for temporary cannabis license under KCOC
27
section 19.08.055 of the documentation or other requirements that are necessary to
28

- 41
obtain a license and that no appeal or hearing of the decision of the Planning Director
1
2 is available or possible. It would have cost the County of Kern absolutely nothing
3 more than was already being expended on publishing costs to have placed particular
4
guidelines of what would be acceptable proof that the applicant business was in
5
operation prior to May 10, 2016, rather than leave the interpretation to the vices and
6
7
prejudices of Lorelei Oviatt only. The Ordinance is unconstitutionally vague on its
8 face and as applied in violation of the due process guarantee of the Fourteenth
9 Amendment to the United States Constitution.
10
100. Plaintiffs, and each of them, have been denied due process of law by the
11
aforementioned actions of Defendants, and each of them, thereby resulting in denial
12
13 of Plaintiffs’ Constitutionally protected rights to due process of law.
14 101. Plaintiffs, and each of them, as a result of the aforementioned actions of

15
Defendants, and each of them, have suffered injury in an amount to be determined at
16
trial as a result of Defendants’ violations of Plaintiffs’ rights to due process.
17
102. When Defendants denied Plaintiffs’ applications for temporary cannabis retail
18
19 license and raided Plaintiffs’ dispensaries, as described herein, they acted under color
20 of state law and deprived Plaintiffs of their due process rights as secured by the
21
Fourteenth Amendment to the United States Constitution.
22
103. As a direct and proximate result of Defendants’ actions, Plaintiffs suffered serious
23
24
injury, including but not limited to extreme embarrassment, humiliation, anxiety,
25 ridicule, physical upset, and emotional distress, as well as the deprivation of use of
26 Plaintiffs’ businesses and the loss of income from said businesses and contracts
27
associated with those businesses, all of which were valid under state law and the
28

- 42
ruling in T.C.E.F., supra, 246 Cal.App.4th at 308. The full extent of Plaintiffs’ injuries
1
2 is not known at this time, but Plaintiffs are informed and believe that the amount of
3 these damages exceeds the jurisdictional minimum established for this court.
4
Plaintiffs will amend this complaint to set forth the full nature and extent of their
5
damages once they have been ascertained with particularity.
6
7
104. WHEREFORE, Plaintiffs request the relief set forth below.
8 SECOND CAUSE OF ACTION

9 (EQUAL PROTECTION VIOLATION: 42 U.S.C. §§ 1981, 1983)
10
105. Plaintiffs incorporate by reference all preceding paragraphs as if fully restated
11
herein.
12
13 106. Generally, intentional discrimination occurs when the recipient acted, at least in
14 part, because of the actual or perceived race, color, or national origin of the alleged
15
victims of discriminatory treatment. (Doe ex rel. Doe v. Lower Merion Sch. Dist., 665
16
F.3d 524, 548 (3d Cir. 2011).) While discriminatory intent need not be the only
17
motive, a violation occurs when the evidence shows that the entity adopted a policy at
18
19 issue “‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable
20 group.” (Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).) Some assume
21
that the intentional use of race should be carefully scrutinized only when the intent is
22
to harm a group or an individual defined by race, color, or national origin. That is not
23
24
true: the Supreme Court in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493
25 (1989), and Adarand Constructors, Inc., v. Pena, 515 U.S. 200, 226 (1995),
26 established that any intentional use of race, whether for malicious or benign motives,
27
is subject to the most careful judicial scrutiny. Accordingly, the record need not
28

- 43
contain evidence of “bad faith, ill will or any evil motive on the part of the
1
2 [recipient].” (Williams v. City of Dothan, 745 F.2d 1406, 1414 (11th Cir. 1984).)
3 107. Defendants acted under color of law to deny Plaintiffs equal protection of the
4
laws and to discriminate on the basis of race/ethnicity, in violation of 42 U.S.C. §§
5
1981 and 1983 when Plaintiffs’ applications for temporary retail cannabis license
6
7
were denied by Defendants and Plaintiffs’ dispensaries were raided and owners were
8 arrested and criminally charged by Kern County law enforcement officials.

9 108. As described above, Defendants’, and each of their, conduct demonstrates
10
evidence of a consistent pattern of actions of decision-makers that have a much
11
greater harm on minorities than on non- minorities. Each Plaintiff is of a national
12
13 origin other than Caucasian and Plaintiffs are informed and believe and based on this
14 belief allege that Caucasian applicants for temporary license were not denied and did
15
not have their dispensaries raided by law enforcement agents. Defendants violated
16
Plaintiffs’ Constitutional rights to receive the same consideration given to other races
17
for application of temporary retail cannabis license and for alleged violation of
18
19 KCOC §19.08.055.
20 109. Plaintiffs, and each of them, have been denied equal protection of the laws by the
21
22
of Plaintiffs’ Constitutionally protected rights to equal protection of the laws.
23
24
110. Plaintiffs, and each of them, as a result of the aforementioned actions of
25 Defendants, and each of them, have suffered injury as a result of Defendants’

26 violations of Plaintiffs’ rights to equal protection of the laws.
27
111. WHEREFORE, Plaintiffs request the relief set forth below.
28

- 44
THIRD CAUSE OF ACTION

1
2 (“CLASS OF ONE” EQUAL PROTECTION VIOLATION:
3 42 U.S.C. §§ 1981, 1983:)

4
5
herein.
6
7
113. The individual Defendants acted under color of law to deny Plaintiffs equal
8 protection of the laws in violation of 42 U.S.C. §§ 1981 and 1983.

9 114. The Ordinance, on its face and as applied or threatened to be applied, violates the
10
Equal Protection Clause of the Fourteenth Amendment of the United States
11
Constitution.
12
13 115. On its face, the Ordinance describes three groups of persons/organizations:
14 Medical Cannabis Dispensaries that were in operation in Kern County prior to May
15
10, 2016 (the moratorium imposed by former Chapter 5.86), Medical Cannabis
16
Dispensaries that were not in operation in Kern County prior to May 10, 2016, and
17
persons wishing to use cannabis for recreational purposes, not related to medical. In
18
19 practice, however, as described by Kern County Planning Director Lorelei Oviatt, the
20 Ordinance allows for a fourth group of persons/organizations to operate within Kern

21
County: Medical Cannabis Dispensaries from outside Kern County that have been
22
chosen by agents of the County to establish new dispensaries in Kern County in order
23
24
to put existing dispensaries out of business (i.e., the “L.A. Group”).
25 116. Plaintiffs are medical dispensary owners and operators who were in existence and
26 operation prior to the moratorium date of May 10, 2016. They each were denied a
27
temporary license to operate as one of the existing medical retail dispensaries by the
28

- 45
decision of the Kern County Planning Director. Plaintiffs each also were raided by
1
2 Kern County law enforcement officials as a result of having their application for
3 temporary cannabis retail license denied.

4
117. The County has no rational interest justifying the creation of these classes and
5
cannot show that the Ordinance was needed (or even rational) in light of the Fifth
6
7
District Court of Appeals decision in County of Kern v. T.C.E.F., et al, supra, 246
8 Cal.App.4th at 308.
9 118. On its face the Ordinance bans all “commercial medicinal and recreational
10
cannabis businesses and activities of all kinds[.]” (KCOC, §19.08.055(A).) Kern
11
County Planning Director Lorelei Oviatt has testified that, pursuant to section
12
13 19.08.055, she has the sole authority to grant or deny the application based entirely on
14 the information she reviews and on her own opinion. Further, Ms. Oviatt, acting as
15
Planning Director has stated that she favored giving licenses to the “L.A. Group” to
16
close down the existing dispensaries in Kern County that the County could not legally
17
close. The County had no rational interest justifying enactment of Kern County
18
19 Ordinance Code section 19.08.055.
20 119. The County has violated Plaintiffs’ equal protection rights by enacting an
21
ordinance that irrationally banned Plaintiffs’ businesses, thereafter denying Plaintiffs’
22
applications for temporary cannabis license that were submitted pursuant to the
23
24
requirements set forth in the Ordinance, all while giving preferential treatment to a
25 group “favored” by Defendants and each of them to establish the exact thing that was
26 banned by the enacted Ordinance: medical cannabis dispensaries.
27
28

- 46
120. As a result of the County of Kern, Defendants, each of them individually and
1
2 collectively, have caused Plaintiffs required California state licenses and application
3 for the same to be denied or permanently stalled, while new State enforcements are
4
likely and have been announced by the California Cannabis Board.
5
121. Plaintiffs, and each of them, have been denied due process of law by the
6
7
8 of Plaintiffs’ Constitutionally protected rights to equal protection of the laws.

9 122. Plaintiffs, and each of them, as a result of the aforementioned actions of
10
Defendants, and each of them, have suffered injury as a result of Defendants’
11
violations of Plaintiffs’ rights to equal protection of the laws.
12
13 123. WHEREFORE, Plaintiffs request the relief set forth below.
14 FOURTH CAUSE OF ACTION

15
(DECLARATORY RELIEF)
16
17
herein.
18
19 125. An actual controversy now exists between Plaintiffs and Defendants as to whether
20 Defendants’ policies, which provide for the arbitrary and capricious denial and
21
approval of temporary cannabis retail licenses pursuant to the vague and ambiguous
22
requirements set forth in Kern County Ordinance Code §19.08.055, violate due
23
24
process of law as guaranteed by the United States and California Constitutions.
25 126. Unless the court issues an appropriate declaration of rights, the parties will not
26 know whether Defendants’ policy complies with the due process clauses of the
27
United States and California Constitutions, and there will continue to be disputes and
28

- 47
controversy surrounding Defendants’ enforcement policy. In addition, dozens of

1
2 medical cannabis dispensary owners and operators in Kern County, California, may
3 potentially be illegally deprived of their property for an extended period of time based
4
on false claims, with no opportunity for a reasonably prompt hearing, or any hearing
5
at all, at which they can prove that the denial of their application for temporary
6
7
cannabis retail license and subsequent raid by law enforcement officials is improper.
8 PRAYER FOR RELIEF

9 127. WHEREFORE, Plaintiffs request the following relief:
10
1. Immediate issuance of a temporary restraining order, followed by a preliminary
11
injunction, and ultimately by a permanent injunction requiring Defendants to:
12
13 a. Return all property that was confiscated from Plaintiffs during any and all raids
14 occurring since enactment of Kern County Ordinance Code §19.08.055 to the

15
appropriate Plaintiffs;
16
b. Refund the bail charges/fees Plaintiffs’ were required to pay, where applicable,
17
in order to obtain the release of Plaintiff(s) to challenge the unlawful arrest; and
18
19 c. Preventing Defendants from enforcing their present enforcement policy to Kern
20 County Ordinance Code §19.08.055 unless and until Defendants provide notice
21
and hearing procedures such as comport with the requirements of the due process
22
clauses of the United States and California Constitutions;
23
24
2. A declaration of rights stating that Defendants’ enforcement procedures, as
25 described in this complaint, violate the due process clauses of the United States
26 and California Constitutions;
27
28

- 48
3. An award of damages under the due process clauses and 42 U.S.C.A. § 1983,
1
2 fully compensating each Plaintiff for the damages suffered as a direct and
3 proximate result of Defendants’ unjustified denial of application for temporary

4
cannabis retail license and subsequent raid of Plaintiffs’ dispensaries resulting in
5
the taking of each Plaintiff’s property;
6
7
4. An award of costs, including reasonable attorney’s fees pursuant to 42
8 U.S.C.A. § 1988; and

9 FURTHER PRAYER FOR RELIEF
10
WHEREFORE, Plaintiffs further request that this Court:
11
a. Demand for Jury Trial on all triable issues;
12
13 b. For actual damages according to proof;
14 c. For compensatory damages as permitted by law;

15
d. For consequential damages as permitted by law;
16
e. For statutory damages as permitted by law;
17
f. For equitable relief, including restitution;
18
19 g. For interest as permitted by law;
20 h. Declaring that Defendants violated their rights to nondiscriminatory treatment

21
under the Fourteenth Amendment and 42 U.S.C. §§ 1981, 1983, and 2000d et
22
seq.;
23
24
i. Enjoining Defendants from continuing to discriminate in violation of the
25 Fourteenth Amendment;
26 j. Attorneys' fees and costs pursuant to 42 U.S.C. § 1988 and any other
27
applicable authority; and
28

- 49
k. For such other and further relief as this Court deems just and proper.
1
3
Respectfully submitted,
4 Dated: 01/23/2019 LAW OFFICES OF ABRAHAM A. LABBAD
5
7
ABRAHAM A. LABBAD,
8 Limited Scope Attorney for PLAINTIFFS
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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Case 1:19-cv-00106-AWI-JLT Document 1 Filed 01/24/19 Page 1 of 50

LAW OFFICES OF ABRAHAM A. LABBAD

7 UNITED STATES DISTRICT COURT

Counsel; PHILLIP JENKINS, individually and )

7 COME NOW PLAINTIFFS CITIZENS AGAINST CORRUPTION, THE GREEN

24 U.S.C.A. §§ 2201, 2202).

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specific members of Plaintiff Citizens Against Corruption seek damages pursuant to

19 Constitution of the United States (U.S. Const. Amend. XIV).

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2 times stated in the present complaint conducted business in Rosamond, County of

3 Kern, State of California.

19 implementing legislation on behalf of the County of Kern (hereinafter “Kern County”

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2 performs the duties entrusted him as Kern County Supervisor.

8 19. Defendant Kern County Sheriff’s Department, collectively, is a political subdivision

13 performs the duties entrusted him as Kern County Sheriff.

14 21. Defendant Kern County Counsel’s Office, collectively, is a political subdivision of

19 performs the duties entrusted him as and as Kern County Counsel.

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14 BACKGROUND OF MEDICAL CANNABIS INDUSTRY IN

20 Legislature enacted additional legislation relating to medical marijuana. California

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2 Diversion of Marijuana Grown for Medical Use.”

8 marijuana dispensaries to be established in unincorporated areas of the County for a

14 dispensaries for unincorporated areas of Kern County. The County’s approval of G-

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predecessor 2009 ordinance, authorizing dispensaries in commercially zoned areas

8 provisions authorized dispensaries to operate in industrial zones and subjected them

19 banning them through other means.

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2 achieves a result identical to that of the protested ordinance. Such a narrow

3 interpretation would allow the statute to be easily circumvented by additional action

13 imposed a moratorium on the establishment of new Medical Marijuana Dispensaries

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3 39. It should be noted that: California Government Code § 65858 provides:

13 August, 2011), or any extension of the (G-8630) ordinance – a total of four

14 ordinances in all. Therefore, it violates the plain meaning of section 65858,

21 had the practical effect of banning medical marijuana dispensaries.

22 41. Further, subsection (f) of Government Code section 65858 provides:

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9 statements no emergency existed to allow the County to extend Ordinance G-8630.

19 COUNTY ENACTED AN ORDINANCE THAT BANS MEDICAL

14 protested ordinance.” (T.C.E.F., supra, 246 Cal.App.4th at 308, emphasis added.)

19 areas of Kern County.

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23 The decision of the planning director shall be final ten (10)

25 An applicant may appeal the decision of the planning director

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of this title. The appeal shall include supporting documentation

13 enforcement remedies for violations of section 19.08.055.

19 to a reasonable interpretation of section 19.08.055, and continues with uneven

20 application process or even complete denial of application in the form of missing

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13 Director in granting or denying the application for temporary commercial cannabis

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25 A. THE ARBITRARY ENFORCEMENT PRACTICES OF DEFENDANTS

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3 set forth in KCOC §19.08.055.

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2 of Kern County, possibly in Randsburg, California, and to operate the medical