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Superior Court: Judge Gallo Approves South Kingstown Medical Marijuana Grow Operation
SOUTH KINGSTOWN, R.I. — After over two years Superior Court judge Bennet Gallo has ruled that the South Kingstown Zoning Board used what he called "tortured reasoning" in finding that a local medical cannabis grow operation is prohibited in downtown Wakefield.
Judge Gallo ruled the board was wrong to conclude that the licensed grow operation constituted "agricultural products manufacturing" and as such was prohibited in the entire town of South Kingstown (see 74.1 Manufacture of agricultural products). Gallo called the board's finding that growing marijuana amounted to manufacturing "an exercise in tortured reasoning" that ignores the plain and simple meaning of the zoning ordinance.
According to the ruling, South Kingstown Building Official and Zoning Enforcement Officer Jeffrey O'Hara issued the occupant a notice of violation in April 2014. The violation was based on police reports generated after the South Kingstown Fire Department responded to an alarm at 17 Columbia St., a former Cineplex owned by Campus Cinema LLC.
O'Hara wrote that he had learned there was "agricultural manufacturing" on the property that was prohibited under the zoning ordinance.
Concurrently, the occupant appealed to the Zoning Board, which held a hearing in July of 2014. At that hearing, O'Hara acknowledged that he relied "solely" on the police reports he had illegally obtained and had not actually ever entered the building. He based his conclusion on the end product he assumed was being "produced". O'Hara had admitted to the courts that he had know of multiple other "grow operations" in town and concluded he had never issued this same notice of violation to a single other grow in his jurisdiction.
This blatant on attack on a single individual would amount to discrimination in our opinion, especially having stated he knew of many others including his own neighbor
A neighbor also testified about a "smoky" scent coming from the former cinema when the wind blew in a certain direction, the ruling says.
The Zoning Board upheld O'Hara's notice of violation, 3-2, in a written decision that was entered into the land evidence records. The board found that "marijuana cultivation taking place on the premises constitutes agricultural manufacturing and thus was barred in the downtown district."
The board wrote that some type of processing is necessary to "render usable marijuana from a marijuana plant." It compared marijuana production to canning tomatoes, finding that "large-scale processing of marijuana was taking place" at 17 Columbia St.
Gallo noted that "in fact, plant agriculture is permitted in all zones in Rhode Island," under the state enabling act. He also noted that the state Medical Marijuana Act defined usable marijuana as the dried leaves and flowers of a marijuana plant or any mixture thereof.
"Manufacturing entails more than simply drying out plants," Gallo wrote. "If an individual grows some plants then harvests those plants and dries then, that individual has not manufactured anything."
Gallo found that there was no evidence in the record that anything beyond growing was taking place.
O'Hara said he respected the judge's ruling, even though it was in total contradiction to his original arguments. The outcome comes at a rather large taxpayer expense. Law firm Ursillo, Teitz & Ritch, Ltd is making a fortune off there legal counsel that continually advises Rhode Island towns to limit Medical Cannabis Zoning and restrict its growth.
O'Hara stated to Providence Journal “They're making these laws faster than anyone can read them," he said, adding "I can't understand it." Ironically these laws have been in place since 2006 and zero changes have occurred that would change the legality of his arguments raised in this case.
O'Hara said they have since used the building for occasional shows.
The question now is what happens for illegally publishing the defendants name in clear violation of
§ R.I.G.L. 21-28.6-6.1 Administration of regulations.
"(e) A primary caregiver cardholder, who has in his or her possession a registry identification card, shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a patient cardholder, to whom he or she is connected through the department of health's registration process, with the medical use of marijuana; provided, that the primary caregiver cardholder possesses an amount of marijuana that does not exceed twelve (12) mature marijuana plants that are accompanied by valid medical marijuana tags, two and one-half (2.5) ounces of usable marijuana, or its equivalent amount, and an amount of wet marijuana set in regulations promulgated by the departments of health and business regulation for each qualified patient cardholder to whom he or she is connected through the department of health's registration process."
Also criminally in this section which in our opinion would include, Narragansett Times, Jeff O'Hara Town Building Official, Michael Ursillo Town Solicitor and the 3 Zoning board members who negligently and willfully committed these misdemeanor crimes.
(3) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names and other identifying information on the list shall be confidential, exempt from the provisions of Rhode Island access to public information, chapter 2 of title 38, and not subject to disclosure, except to authorized employees of the department as necessary to perform official duties of the department.
(k) Notwithstanding subsection (j) of this section, the department shall verify to law enforcement personnel whether a registry identification card is valid solely by confirming the random registry identification number or name.
(l) It shall be a crime, punishable by up to one hundred eighty (180) days in jail and a one thousand dollar ($1,000) fine, for any person, including an employee or official of the department or another state agency or local government, to breach the confidentiality of information obtained pursuant to this chapter. Notwithstanding this provision, the department employees may notify law enforcement about falsified or fraudulent information submitted to the department.
I'm willing to bet, had the defendant been over any limits or plant counts they would have been charged criminally. I expect these people to be held to the same standards for violating this person in clear contradiction to Rhode Island Criminal Law.
Justin Case - TheFarmacist
