California Recent Change to Marijuana Law

Under the ballot measure designated as Proposition 64 that was passed by 57% of the voters in the November 8, 2016 election that became effective November 9th:

1) those convicted of a felony as a result of possession, transportation &/or cultivation of marijuana can have it reduced to a misdemeanor;

2) the County Public Defender in San Diego has offered to file the Petition for free even if the crime occurred years ago, and even if the defendant was previously represented by private counsel;

3) if the San Diego District Attorney decides there is a basis to have the felony reduced to a misdemeanor, the defendant may not even have to appear in Court;

4) the current process in San Diego allows the Superior Court to re-sentence a defendant from a felony to a misdemeanor, or dismiss the charges [it would seem beneficial to have private counsel if one hopes to obtain a full dismissal of a prior felony conviction];

5) the law also now permits anyone over age 21 to possess up to 28.5 grams of marijuana, or grow at any one time up to six marijuana plants at their residence.

6) the maximum penalty is now up to six months in the County Jail and/or a fine of up to $1,000 for those who grow, transport or sell marijuana, which are now misdemeanors.

7) there are certain exceptions causing the case to be charged as a felony, such as:

  • the defendant has prior convictions for the sale of drugs;
  • the defendant is charged with transporting marijuana into the United States &/or across state borders. For example, one cannot obtain marijuana in a state in which recreational use is legal and bring it into California;
  • the defendant has a prior conviction of certain felonies that are deemed “strikes;”
  • the defendant is a Registered Sex Offender [RSO].

8) in addition, there are miscellaneous restrictions in connection with marijuana, such as:

  • there are Federal laws that apply to the use, possession, sale, transportation and/or cultivation of marijuana;
  • driving while impaired by the use [under the influence] of marijuana is a crime in California;
  • smoking marijuana (a joint) (pot) in public is still illegal;
  • a store, shop, or retail establishment that sells recreational marijuana must check ID’s to be certain they are not selling marijuana to a minor; and such a business cannot be within 600 feet of a school, daycare or youth center;
  • unless the law is amended, a medical marijuana dispensary and/or an entity that cultivates marijuana cannot legally sell to an adult recreational user [includes social, personal or nutritional uses] until January, 2018;
  • advertising that is aimed to minors is prohibited;
  • a city or municipality has the power to issue an ordinance to ban the sale of marijuana; and if they permit such a commercial entity to do business, they have the power to regulate those entities under zoning laws.
  • an employer can lawfully require all prospective employees to pass a drug test as a condition of employment for certain positions as long as no individual or group is unlawfully selected, such as discrimination on the basis of race, nationality, religion, sexual preference, etc.
  • an employer can lawfully refuse to hire an employee who has tested positive for marijuana, even though it was legally prescribed for a medicinal purpose

9) nonetheless, there are still advantages to have a felony reduced to a misdemeanor, including but not limited to allowing an individual to maintain &/or obtain current and future: employment, security clearance, insurance, rent or lease property, and, in specified instances to possess a firearm, etc.

On the other hand, it is still likely if one has a professional or occupational license in California, or seeks to obtain such a license,  the state licensing Board, Bureau, or Department will require one to report a crime, whether a felony or misdemeanor; and, they will investigate and likely file an Accusation even if a misdemeanor is expunged. At Spital and Associates, we aggressively seek to present a comprehensive and cogent treatise with a compelling defense and offense and utilize forensic experts (adding the technical science) to marginalize any such investigation or Accusation.

Any discussion of marijuana of necessity has to include what opponents consider to be the dangers of such use. The short term effects include but are not limited to causing changes in a person’s mood, but  it can also impair body movement; as well as difficulty in attention and/or memory (learning) and/or problem solving (thinking). It has also been reported that marijuana raises one’s heart rate, which can increase the risk of a heart attack, particularly with older individuals and/or those with congenital or later developed or contracted heart problems.

The long term effects can adversely impact the previously mentioned mental abilities, and possibly cause permanent loss of certain brain functions. In some individuals,  the long term use of marijuana can cause temporary symptoms such as paranoia and hallucinations, as well as anxiety and depression that has been linked to mental illness. Not only can there be a loss of physical and/or mental health, but it has also been described as a “gateway drug” because it can lead to the use of other drugs and narcotics (some of which are highly addictive and deadly).  In addition, the smoke can harm a person’s lungs and, therefore, cause lung cancer. The risk to the development of a child during and after pregnancy is still unknown. When one seeks to stop using marijuana, there may be withdrawal symptoms.

You are encouraged to consult with a physician in terms of  medical and psychological issues; and, it is recommended that you obtain the advice of an experienced lawyer in regards to each and all of the above items to determine whether and to what extent any apply to you, a loved one, and/or a friend or associate. If you desire a Free Attorney Consultation, call 619.583.0350 and ask for Sam Spital, Managing Lawyer or send an email

Safeway Grocery Settles Claim of Employee With Disability

On November 2, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) reported a settlement regarding a food services employee on disability leave for a job injury at Safeway Grocery.

Initially Safeway followed the law, Americans with Disabilities (ADA), which requires employers to reasonably accommodate employees with a disability; as such Safeway allowed the employee to work in a different position that did not require heavy lifting as she did in her previous assignment. However, Safeway unilaterally decided to place the employee on unpaid leave indefinitely, making the argument that the employee had exceeded what they deemed an allowable time lime and, therefore, could no longer enjoy the position with modified duty.

The Federal Disability Lawsuit was settled by Safeway because of a legal discrimination claim brought against it. The requirement of reasonable accommodation includes, but is not limited to, the employer reassigning an employee with a disability to another position, unless it can be established this would cause a significant expense to the employer and/or substantial difficulties associated with the same. There is no time limit provided the employee has a qualifying disability.

For additional information on employee related issues, you are invited to view our web site at www.spitalaw.com

Federal Appeals Court Bars DOJ From Prosecuting Medical Marijuana Cases

On August 16, 2016, a three- judge panel of the 9th Circuit of the United States Court of Appeals (this is the federal appellate court that covers California) ruled against the Federal Government, holding the Department of Justice (DOJ) cannot prosecute marijuana cases when a STATE permits medical marijuana &/or a business or individual is in compliance with state law.

In 2014, Congress passed a bill known as the Rohrabacher-Farr Amendment that DOJ cannot use any of its funding in any given fiscal year to interfere with medical marijuana laws in the states. In other words, the Federal Government is barred from preventing states from how they regulate the use or sale of marijuana.

This is a victory for proponents of medical marijuana laws, but there are two apparent limitations:

  • The cases will likely turn on whether there is strict compliance with the relevant conditions of state law; and
  • The Congressional appropriation restriction noted above expires 9/30/16 and, unless Congress passes a new bill to extend that prohibition, it will soon expire.

This is a unique situation inasmuch as the Federal Government has not updated its laws for40-50 years while approximately 41 states authorize at least one form of medical marijuana use. Some commentators argue the Federal Government is out of step with [what seems] a growing trend in a majority of states

We can expect to see new legislation by Congress regarding this subject very soon.

 

CALIFORNIA NEW VACCINE LAW – WHAT TO KNOW

On June 30, 2016, Governor Brown signed SB 277 into law a vaccine bill that bans personal and religious exemptions for schoolchildren. Medical exemptions, such as for those children with physician-certified allergies and immune-system deficiencies, will be allowed for those entering day care and kindergarten; this law can be viewed by clicking the link to SB277

Accordingly, and effective July 1, 2016, California bans students from enrolling and, therefore, cannot enter a public or private school unless their family provides proof their child has been inoculated against ten (10) designated diseases.  Only two other states in the nation have such a law [West Virginia and Mississippi are the other two].

Previously, parents could obtain a Personal Belief Exemption (PBE) from the immunization requirements for personal and religious beliefs. Although they can no longer obtain such an exemption, any parent or guardian who filed such an exemption prior to January, 1, 2016, will have the benefit of and, therefore, the exemption will remain in effect until their child reaches Kindergarten or 7th grade.

There are three exceptions in which the subject immunizations are not required: (1) home-based private schools; (2) special education services specified in an individualized education program [IEP]; and, (3) students enrolled in an independent study program who do not receive classroom-based instruction

On July 1, 2016, a lawsuit was filed in the U.S. District Court in San Diego to obtain an injunction to stop the enforcement of the law. These opponents claim they are being denied their right to a public education, and the new law violates the U.S. Constitution and their right to equal protection and due process of law, particularly their right to exempt their children from one or all of the required vaccines because they have inherent risks and unintended consequences.

However, many preventable diseases, including whooping cough, mumps and measles, have risen due to an increasing number of individuals who have declined vaccinations, thereby deemed to negatively impact a growing rate of schoolchildren.

For a detailed recitation of the Communicable Disease Prevention and Control Law in California, click this link to the Health and Safety Code.

CALIFORNIA SUPREME COURT RULES EMPLOYER MUST PROVIDE SEATS FOR EMPLOYEES

In a unanimous opinion, NYKEYA KILBY vs. CVS PHARMACY, INC., Case # S215614, on April 4, 2016, the Supreme Court of California held an employer must provide suitable seating for its employees as long as it is reasonable to do so in the particular work environment. In other words, the employer must provide seats for their employees:

  1. When the tasks being performed at the location the employee works (physical layout of work place) reasonably permit individuals to be seated;
  2. Utilizing a seat does not interfere with him/her performing any of the tasks that may require standing;
  3. And, it is the burden of the employer to establish the unavailability of suitable seats, rather than the obligation of an employee.

The underlying case arose when an employee at CVS was advised she had to stand while performing her duties and functions, which included operating a cash register, organizing and stocking shelves with products, as well as in front of and behind the sales counter, and cleaning the register. It is not questioned that certain functions, such as gathering shopping baskets, vacuuming, and removing trash are active duty tasks that cannot reasonably be performed while seated. In a companion case, a bank teller performing duties at his/her station, such as cashing checks, accepting deposits,  and processing withdrawals should be contrasted with the duties away from his/her window-counter, the latter including such tasks as escorting customers to the safe deposit boxes in the bank vault or assisting customers at an ATM machine.

The defense tried unsuccessfully to distinguish “standing” from “seated” tasks. However, the court stated:

“There is no principled reason for denying an employee a seat when he spends a substantial part of his work day at a single location performing tasks that could reasonably be done while seated merely because his job duties include other tasks that must be done standing.”

……

“Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.”

The reasonableness standard allows for more flexibility; hence, an employee would be entitled to a seat if the duration and frequency of the seated task is not negligible (those tasks that are performed briefly or infrequently). Even when employees are not engaged in the active duties of their work but are required to stand at a specific location, an adequate number of suitable seats must be available in reasonable proximity to the work area for employees to use as long as it does not interfere with the performance of their tasks and duties.

Rather than utilizing an employer’s business judgment as to whether the work must be performed while standing, the Court concluded it is rather an objective inquiry that takes into consideration, but is not based solely upon, an employer’s reasonable expectations regarding customer service and the employer’s role in setting job duties. As such, however, it does not allow employers to arbitrarily define which are “standing” tasks.

Do you or someone you know work at a designated location with a suitable seat? If not, the next question is why not?

 

Medical Board of California Fall, 2015 Newsletter

The Medical Board of California (MBC) has just published its latest edition of its quarterly Newsletter, and for convenience we are including the link:  Newsletter Fall 2015

There are various sections of particular interest as follows:

A.   Answers to a series of questions that have recently been asked by physicians relating to subjects such as the renewal of your medical license; the requirements for utilizing and/or operating a practice in a name or entity other than one’s own (with the exception of adding Inc. after your true legal name) and the process of applying for a fictitious name permit; guidelines for prescribing pain medications; and the reporting of arrests even though a conviction has not yet occurred.

B.   An update on CURES 2.0 (Controlled Substance Utilization Review and Evaluation System) regarding the registering requirements in order for a physician to order, prescribe,  furnish, dispense, or administer Schedule II, Schedule III, or Schedule IV controlled substances.

C.   A section on the compliance requirements of Business and Professions Code 805.1  that mandates the reporting by health care facilities and clinics in a case involving the  restriction (for a cumulative total of 30 days or more for any 12-month period) of a physician’s staff privileges, membership or employment; an allegation that a physician has (1)  engaged in sexual misconduct of a patient during an examination or treatment; (2)  prescribed,  administered or used a drug or alcohol to or on him/herself that is either harmful or dangerous to the physician or the public, or impairs the physician’s ability to safely practice medicine;  (3) prescribed, furnished or administered controlled substances to a patient without a medical reason; (4) departed  from the standard of care in the practice of medicine that evinces gross negligence or incompetence and results in serious bodily injury to or the death of a patient.

D.   A detailed explanation and list of tasks that both are and are not permitted relating to the scope of practice of medical assistants.

E.   The subject of medical records, and patient rights.

F.   A list and summary of disciplinary actions taken by the MBC for the period of May through July 31, 2015.  And,

G.  The 2016 schedule of meetings as well as important telephone numbers and contact information for the MBC.

It is hoped the above will be of assistance, however, if you have any questions regarding the California Medical Practice Act, the rules and regulations, as well as the subject of investigations and/or disciplinary actions by the Medical Board of California , whether you reside or practice in or outside of the State of California, feel free to call Sam Spital, Managing Attorney at Spital and Associates, 619.583.0350

Renewal of Professional and Occupational Licenses

The California Department of Consumer Affairs (DCA) has been utilizing the BreEze online licensing and enforcement system for quite some time. They are planning to transition more of the state Boards and Bureaus to this system.

In the past, my law firm has always encouraged all those who have a state license to submit their renewals as early as 8 to 12 weeks in advance of the expiration date as there can be delays in the processing by the respective California Board or Bureau.

The DCA has recently acknowledged they will have to shut down the system for a brief period of time due to their planned transition noted above and, therefore is currently recommending everyone take this into consideration in filing an initial application for a professional or occupational license, a renewal of an existing license, as well as changes to one’s address of record and/or a change of one’s legal name.

No one should risk not having proof of licensure when they perform their work as that could result in practicing without a license, which can be charged as  a misdemeanor crime.

 

 

 

Governor Brown Extends The Enforcement Power of Board of Registered Nursing

On October 1st, the Governor extended the power of the Board of Registered Nursing (BRN) to regulate the practice of Nursing to January 1, 2018 when it will be repealed if a new law is not enacted. The previous sunset law permitted the BRN to impose disciplinary action, and to grant or deny applicants a license, only up until January1, 2016.

Regardless of your politics, it seems futile to ask why our legislature might deem the regulation of nurses &/or professional and occupational licensing to be of no public concern and from time to time enact legislation to repeal any such authority. This comes at a time when there are so many social, financial, community and political needs of our state that instead should take precedence over passing sunset laws related to health care professionals.  If there is a question regarding the abuse of discretion by a state Board, there are other means  by which the legislature can deal with any such problem or issue. Had there been sufficient agreement with the above position, the legislature would have selected another date far in the future, such as 2030 or even later.

The following is a link to Senate Bill 466:  http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB466

 

State Board License Diversion Program

A Diversion Program is intended to provide an alternative for a professional who is licensed in the State of California when there is evidence of a substance abuse and/or impairment due to a mental illness who would otherwise be charged with wrongdoing . One should not be embarrassed by what may appear to be a shortcoming as there are over forty (40) different  life stressors, multiple daily work pressures, and everyone should understand some challenges are simply genetic.

Obtaining a painstaking medical history and physical examination can afford the best way to evaluate your situation. Since this may also involve critical legal issues, however, seeking the advice of experienced legal counsel should be a paramount consideration as well.   A truly understanding and compassionate lawyer can discuss your eligibility, the  legal alternatives, as well as  the advantages and disadvantages of the course of action you may consider.

At the law firm of SPITAL & ASSOCIATES, you can obtain a confidential attorney consultation  at no charge, and we can help you identify the symptoms that may exist, if any,  and to assist you in changing the outcome.   There can be unintended consequences you need to fully understand when you have a professional or occupational license and, therefore, this may be a defining moment in your career. As our public service, we are here to help you so that you do not gamble on your career

Choosing the best course of action can make a huge difference now and in the future.

 

 

What Are Adverse Childhood Experiences (ACE)?

For the most part, many of us have not read or heard about ACE’s, the acronym for adverse childhood experiences. Whereas highly negative experiences as a child often create indelible marks in his/her brain impacting child development, they do not have to be irreversible. For more information of significant interest, see the following:  http://acestoohigh.com/2012/10/03/the-adverse-childhood-experiences-study-the-largest-most-important-public-health-study-you-never-heard-of-began-in-an-obesity-clinic/

Negative childhood experiences inevitably can cause anxiety, toxic stress, fear, shame, disappointment, anger,  hopelessness, helplessness, despair and depression. They can arise from one or more specific incidents of neglect; physical, sexual, verbal and/or emotional abuse; and  family dysfunction in general.  When the feelings that arise from such experiences become intolerable, they can move from being an acute and temporary problem to a chronic and continuing episode. For far too many, they not only impact a child’s development but frame their adult life. They are often linked to and the causal factor behind substance abuse; mental illness; criminal behavior; separation and divorce; neuro-psychiatric and neuro-psychological problems, major medical health conditions as well as auto-immune diseases; work absences and employment problems. However,  learning more about this scourge and most importantly obtaining appropriate and if necessary ongoing care and treatment can alter the fabric of life.

Far too many examples are evident in the news every day, yet there are clues that either were ignored &/or rationalized by parents, siblings, relatives, peers, friends and associates. Become more aware of those you love and with whom you associate so that their personal feelings are addressed, if only to be the one who listens and hears the challenges and struggles they may experience. Hopefully, encouragement will suffice; however, recommending one obtain counseling and professional guidance may ultimately be the best remedy and tool for accommodating negative feelings and ultimately reduce  the ACE score.  Also, see http://www.socialjusticesolutions.org/2014/08/07/q-pediatrician-screens-parents-kids-trauma-ace-score-9/