Destruction of Cannabis Inventory: Cruel or Unusual

Summary and opinion by Ronald Pires.

The final hearing was heard by the Washington Liquor and Cannabis Board (LCB ). The LCB proposed new draft rules to the Washington Liquor and Cannabis Board (WAC). Public comments were made and a final decision will be made on 2/24/16. Any new regulations reached by the LCB will go into effect 3/24/16. The most significant issue up for debate is the revised proposal “destruction of inventory”.

Group 4 rules for Marijuana Producer Violations included the destruction of “25% harvestable plants” or a $2,500 monetary option for their second violation. Third violation 50% destruction of harvestable plants or $15,000 monetary option. This penalty was for a producer/processor only and would be imposed when a sale to an individual under the age of 21. Additional violations would apply if a criminal or disorderly conduct has occurred among others the full draft rules are here.

The (LCB) now wants to include retailer/transporters.The LCB was unable to find a precedent of “destruction of inventory” in any other of our state's laws.

Canna Herb Farms LLC managing member Gene Flynn submitted statement to the LCB with regards to the WAC draft rules.“The destruction of inventory as an administrative sanction is repugnant to deep-seated notions of fairness, proportionate sanctions, preservation of assets, and doubtless many more fundamental underpinnings of our legal system...As far as I can determine, it is an unprecedented form of administrative sanction in the State of Washington, or any other state of the union, and it disregards bedrock principles of private property rights…The idea that any amount of a licensee's inventory could be destroyed as a penalty for some administrative violation flies in the face of private property rights in the State of Washington...We can find no precedent anywhere in this state or any other state of the union that bears any resemblance at all to this proposal. The mere thought that a company's property could be confiscated and destroyed (not even auctioned off!) is abhorrent, and should be soundly and clearly renounced as ‘inappropriate.’ Such a penalty should be deleted altogether from the WAC, and certainly not expanded in the proposed manner.” Flynn’s summary can be found here.

Mikhail Carpenter, spokesperson for the LCB. "Compliance is our goal...We're not trying to put anybody out of  business...The destruction of inventory penalties are designed to serve as the equivalent of a suspension for a retailer...If a retailer is suspended from transacting business for 30 days, there is a monetary impact. But for a producer/processor to not transact business for 30 days, that doesn't really have the same impact...These penalties have been in the rules since they were first adopted two years ago...With the proposed changes in the we are trying to align the penalties so they are similar for retailers and producers/processors...The structure of the penalties also is such...They escalate. So if you receive one Administrative Violation Notice (AVN)], you get a relatively light penalty. If you receive a second AVN, the penalty is a bit steeper, and by the third one, it's much more substantial."  

There is a murky lack of clarity concerning these revisions. The Eighth Amendment to the U.S. Constitution reads: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The Excessive Fines Clause limits the amount that state and federal governments may fine a person for a particular crime. Courts are given wide latitude under the Excessive Fines Clause of the Eighth Amendment. (United States v. Hyppolite, 65 F.3d 1151 [4th Cir. 1995]). Under the "abuse-of-discretion" standard, appellate courts may overturn a fine that is arbitrary, capricious, or "so grossly excessive as to amount to a deprivation of property without due process of law" (Water-Pierce Oil Co. v. Texas, 212 U.S. 86, 111, 29 S. Ct. 220, 227, 53 L. Ed. 417 [1909]). The Eighth Amendment requires that every punishment imposed by the government be commensurate with the offense committed by the defendant. Punishments that are disproportionately harsh will be overturned on appeal.

Since their is no known precedent in the Union, the states slash and burn policy will continue. Harsh? How about Unconstitutional.

Read the full article here.



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