Category Archive for: California

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Emerge Attorneys Named on the Top 200 Global Psychedelic Lawyers and Policy & Regulatory Experts List

We are excited to share that two of our team members have been included in the Top 200 Global Psychedelic Lawyers and Policy & Regulatory Experts List by the Cannabis Law Report! Dave Kopilak and Sean Clancy are both shareholders at Emerge and have been driving forces in the psychedelics space.

Dave was the primary drafter of Oregon’s Psilocybin Services Act (“Measure 109”) which was approved by Oregon voters on November 3, 2020.  Dave was also an advisor to the Oregon Health Authority regarding IRC 280E and tax issues facing psilocybin businesses under Measure 109. As a seasoned corporate business attorney, he brings sharp insight and decades of legal experience to the numerous challenges that Oregon-licensed psilocybin businesses face.

Sean was also part of the small team of Emerge Law Group attorneys that researched and drafted Measure 109.  In September 2022, he served on an Oregon Health Authority Rules Advisory Committee, providing recommendations about the rules that will govern the Measure 109 program.  As a general business attorney who also specializes in intellectual property, Sean represents psychedelic clients on both routine and complex matters including high value brands and technology, plus all variety of contracts and strategic relationships.

As a full-service business law firm that has specialized in the cannabis space for many years, while also serving a variety of conventional industries, Emerge Law Group is familiar with the unique and complex issues that businesses and individuals face in an emerging and highly regulated industry. Emerge Law Group currently assists a variety of clients in connection with Oregon’s psilocybin law and the legal psychedelics space.

Learn more about our Psychedelics Practice Group here, and be sure to subscribe to our specially curated bi-weekly psychedelic news report, PsychedeLinks.

Join us in celebrating Dave & Sean!

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Emerge Law Group Announces New Shareholders

Emerge Law Group is pleased to announce that Jay Purcell and Duncan Delano have been promoted to shareholders at the firm, effective January 1, 2023.

Since Jay joined Emerge in March 2022, he has worked on transactions involving cannabis companies in Watsonville, Santa Cruz, Sacramento, Shingle Springs, Goleta, Cathedral City, Palm Springs and San Rafael; including a California drone company with European operations, a New York digital agency’s acquisition of a Brazilian target’s assets, an Oregon/Canada hemp company, a California social media startup, a Los Angeles digital agency focused on queer audiences and a Virginia/California solar energy startup. He works on financings, mergers/acquisitions and day-to-day corporate work.

Jay was a College Scholar at Cornell University’s College of Arts & Sciences, triple-majoring in Government, History, and Philosophy. He stayed at Cornell for a masters in Africana Studies, during which he was a Visiting Scholar at the University of KwaZulu-Natal in Durban. After graduating from Berkeley Law in 2011, his career began in Silicon Valley at Wilson Sonsini Goodrich & Rosati. At WSGR, he worked with small and growing tech companies as they negotiated investments, executive hiring/separation, equity incentives and exits. Jay also worked with the venture funds, angels, family offices, and banks who made and monitored investments in these companies. In 2016, Jay began focusing on cannabis businesses, first in Santa Rosa and San Francisco, and beginning in 2018, in Los Angeles and Southern California. He has worked with companies operating throughout California, including Humboldt, Sonoma, Napa, San Francisco, Alameda, Santa Cruz, Los Angeles, Riverside and San Bernadino counties. These companies include the entire range of licensees: nursery, cultivation, manufacturing, distribution, testing, storefront retail, and non-storefront retail. Jay has worked on both sides of social equity companies in San Francisco, Oakland, and Los Angeles.

Jay was elected to the Board of Directors of the Berkeley Law Alumni Association in 2014, serving as a Board Officer since 2018. For several years, he led or co-led its Outreach Committee, responsible for linking underrepresented admits to alumni mentors during the admissions process.

Duncan joined Emerge in August 2021, leading Emerge’s expansion to New Jersey and New York.  Over the past year and a half, Duncan has grown Emerge’s east coast business into a vibrant, full-service practice servicing cannabis applicants, investors, landlords, and others in the newly regulated cannabis markets.  Duncan helps cannabis businesses of all types apply for and obtain state and local licenses throughout New Jersey and New York.  This includes locating and financing their operations, and finding success in a highly regulated and rapidly changing industry.

Duncan’s practice also focuses on commercial real estate and general corporate law, representing entrepreneurs, lenders, borrowers, developers, funds and commercial landlords and tenants in a variety of business and commercial real estate transactions, including mortgage and mezzanine financing and syndications, joint ventures, commercial leasing, and acquisitions and dispositions of real property and debt.

Duncan has a long record of pro bono service, working with immigrants seeking asylum and reuniting mothers and children separated at the border, successfully petitioning the President to commute the sentence of a non-violent drug offender, and expunging the records of those convicted of marijuana crimes.  Duncan serves on the New York City Bar Association’s Drugs and the Law Committee and on the committee’s Psychedelic Subcommittee.  The Committee recently organized a free seminar series in conjunction with the City Bar Justice Center to educate aspiring New York cannabis entrepreneurs on a variety of pertinent legal startup topics.

Prior to joining Emerge, Duncan worked for seven years at two AM Law 100 firms in New York City, Schulte Roth & Zabel LLP and Haynes and Boone, LLP, in their commercial real estate groups after spending the first three years of his career in Portland, Oregon in a general corporate practice.  Duncan graduated magna cum laude from Lewis & Clark Law School in 2010 with a Certificate in Environmental and Natural Resources Law.

Join us in celebrating our newest shareholders! Congratulations Jay & Duncan!

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CannaBeat Podcast: Increasing Access to California Cannabis

It’s estimated that 75% of cannabis transactions in California occur outside the regulated market. Dwell on that for a moment: Most cannabis transactions in California fall outside the regulated market. We use euphemisms to describe this: illicit, illegal, grey market, unregulated, legacy. Proposition 64, which created a regulated California cannabis market, passed in 2016, and now, almost 6 years later, three in four cannabis sales avoid the system Proposition 64 created. 

Why? Most jurisdictions ban the system that Prop. 64 created. Even though Prop. 64 passed, two-thirds of California cities prohibit what Prop.64 created: cannabis manufacture, distribution, retail, cultivation, and testing.  

For most California cities, the cannabis business is “illegal-only.” Too often, we focus on the people in the illicit/illegal/grey market, the “outlaws.” Let’s instead focus on the structures blocking the legal market: the cities responsible for blocking legal cannabis. Local governments blocking Prop. 64 are responsible for illegal-only zones. This “illegal-only” language may be provocative; cities will retort, “We don’t require illegal-only. We simply decline to authorize legal cannabis businesses.” Fair enough.  

One such city is Los Gatos, near San Jose. Los Gatos provides a good case study on “illegal-only” cities because its town council studied residents’ views and the impacts of cannabis normalization (read more here).  In the year after Prop. 64 was approved 57% to 43% statewide, and 62% to 38% in Los Gatos, the City passed an ordinance prohibiting commercial cannabis. In other words, Los Gatos residents voted in favor of legal, regulated adult-use cannabis, but the Town Council removed the blocked it. Four years later, in 2020, the Town Council affirmed this ban, but began further study. In January 2022, Los Gatos hired consultants to provide additional analysis and community engagement. Six years after Prop. 64, a majority of Los Gatos residents (58%) again supported commercial cannabis in their city. But, in June 2022, the Town Council affirmed the 2017 ban for a second time. Why?  

Some Los Gatos residents told the Council that cannabis businesses would harm the town’s image, would not provide significant tax revenue, and would create intolerable risks for users and children (cannabis is a “destructive addictive drug that can ruin lives and destroys developing brains;” “every addicted drug user, which causes homelessness, started their addiction with cannabis. It is a gateway drug;” “allowing storefront marijuana dispensaries in Los Gatos completely negates  efforts that our town has upheld for [good, well supported schools]”). Cannabis opponents also point to neighboring jurisdictions who have also outlawed regulated cannabis businesses, such as Cupertino, Saratoga, and Campbell.  Residents support lifting the ban for predictable reasons: “Adding tax revenue, providing safe access and eliminating the [illegal] market by allowing legitimate businesses seems like an obvious choice.”  But the minority opinion seems to hold more sway with the Town Council. 

Los Gatos isn’t any worse than most places in California – most jurisdictions continue to ban the legal cannabis market. Senate Bill 1186 aims to eliminate cannabis deserts, beginning with the delivery of medicinal cannabis products. Written by Senator Scott Wiener and co-sponsored by Assemblyperson Ash Kalra (whose district abuts Los Gatos), SB 1186 blocks prohibitions of medicinal cannabis delivery. In other words, after SB 1186, Los Gatos may not prohibit delivery of medicinal cannabis. Residents of Los Gatos can order medicinal products for delivery, beginning January 1, 2024.  

Prop. 64’s authors (and most of us in California) assumed the adult-use market would swallow the old medicinal sector. But medicinal products continue to exist, despite bans of (adult-use and medicinal) cannabis businesses. SB 1186 means that, in about 14 months, licensed delivery companies can bring medicinal cannabis anywhere in the Golden State. SB 1186 became law on September 18. Check out the podcast with Senator Wiener about 1186 and what’s next.. 

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California Cannabis Legislative Update

Governor Newsome Budget Proposal

On May 13, 2022, Governor Newsom released his proposed California Budget which included cannabis tax reform. The state has acknowledged that the current cannabis tax framework is overly complex and burdensome to both operators and consumers. The hope is to simplify the tax structure, remove unnecessary burdens and costs, and temporarily reduce taxes with hope to assist in stabilizing the cannabis market. The major proposed changes are as follows:

  • eliminate the cultivation tax beginning July 1, 2022 and temporarily maintain the excise tax rate at 15%;
  • shift the collection of the excise tax from the distributor to the retailer starting January 1, 2023;
  • allow the excise the tax to increase between January 1, 2024 to July 1, 2025 depending on the amount of tax revenue received; and
  • starting July 1, 2025, increase the excise tax to 19%.

The release of the proposal is the first step in the legislative process. The proposal will be reviewed and potentially accepted, rejected, or amended over the next four-weeks. Reach out to your local advocacy groups for information on how to reach out to your state representatives and voice your thoughts.

Other tax related bills have been moving forward through the California legislative process, including SB-1074 (eliminates the cultivation tax and increases the excise tax by an undetermined amount) which has recently been ordered inactive, and SB-1281 (discontinue cultivation tax and lowers the excise tax to 5%) which has been held at its current desk.

AB-2691 – Temporary Event Cultivator Retailer License

As of May 26, 2022, this bill has been ordered inactive at the request of Assembly Member Wood. The bill would have allowed equity applicants and cultivators of less than an acre of cannabis (inclusive of all licensed premises) to obtain up to 8 temporary event retail licenses per year to sell cannabis direct to consumers at licensed cannabis events. Additional work needs to be done to get this bill, or at least some version of this bill, to move forward.

SB-1148 – Cannabis: California Environmental Quality Act

The bill was last amended on May 23, 2022. If passed as written, CEQA review would not be required by the state agency to issue a state license if the local jurisdiction filed a notice of exemption or determination with the Office of Planning and Research specific to the cannabis activity. The exemption only applies to the activities associated and reviewed under CEQA by the local jurisdiction. As of May 27th, this bill was moved to the Assembly, read for the first time, and held at the Assembly desk.

SB – 1186 – Medicinal Cannabis Patient’s Right of Access

This bill prohibits local jurisdictions, on or after January 1, 2024, from adopting or enforcing any regulation that prohibits the delivery of medicinal cannabis within the local jurisdiction. On May 23, 2022, the bill passed the state Senate and ordered to the Assembly. Given that there are still a majority of the local jurisdictions that banned commercial activity, it has been burdensome for medical patients to receive their medicine. This could help ensure access to patients that don’t have the capability to travel to the nearest dispensary. As of May 24, 2022, this bill was moved to the Assembly, read for the first time, and held at the Assembly desk.

This blog is for informational purposes only and is not intended for legal advice. Emerge is tracking numerous pieces of state and local statutes, ordinances, and rules. If you have any questions, reach out to attorneys Genny Kiley or Delia Rojas.

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Four Organizations Dedicated to Disability and Patient Rights Join in the Fight for Terminally Ill Californians with Physical Disabilities

Our advocacy on behalf of Californians with terminal illnesses involving progressive loss of physical ability has been joined by a group of four organizations who provide support to and advocate on behalf of people with terminal illnesses and disabilities.  The case was filed in August of 2021, and is discussed HERE.

California’s End of Life Options Act (EOLA) discriminates against physically disabled patients.  The law allows mentally competent terminally ill adults to obtain medication that can be ingested to achieve a peaceful death. This option is known as aid in dying (“AID”). However, the law prohibits assisting a patient with ingesting the medication. Californians whose physical disability prevents them from ingesting the AID medicine without assistance are thus denied access, they are unable to achieve a peaceful death via AID.

The State has moved to dismiss the case arguing, inter alia, that these patients can access AID but must do so earlier, before their illness causes so much physical disability that they cannot ingest without assistance.  This perverse position would force such patients to ingest the medication prematurely, depriving them of a period of precious life, and time with loved ones.  The entire purpose of the Act is to empower the patient with autonomy to decide if, and if so, when, to ingest the medication to achieve a peaceful death.  The State’s position would nullify such autonomy for this group of physically disabled patients.

This civil rights class action seeks to rectify the exclusion of physically disabled individuals from the End of Life Option Act (EOLOA), calling for reasonable modification of the assistance prohibition, to ensure that physically disabled Californians are afforded equal benefit of the Act.

Four organizations joined in filing an amicus brief supporting plaintiffs’ opposition to the State’s Motion to Dismiss.  These groups include:

  • Golden West Chapter, ALS Association – This organization serves patients with Amyotrophic Lateral Sclerosis (“ALS”), a debilitating, deadly disease that causes the progressive loss of bodily function and integrity. Golden West is among the largest ALS care organizations in the United States.
  • End of Life Choices California –  This organization provides information and support to terminally ill Californians.
  • Crip Justice – This organization is led by people with disabilities to support people with disabilities and advocates for people with disabilities to maintain their bodily autonomy and make their own medical decisions.
  • Disability Justice Law and Organizing Project – This organization supports people with disabilities in the fight against discrimination, engaging multi-pronged strategies for change, which are directly informed by the experiences of its clients and the population that it serves.

These amici assert that EOLOA is not accessible to terminally ill patients who have physical disabilities and that reasonable modification is required to avoid impermissible discrimination against this population.

Amici are represented by Debevoise & Plimpton LLP, including attorneys in both the firm’s San Francisco and New York offices.

The plaintiffs are represented by long-time patient rights advocate Kathryn Tucker, Special Counsel at Emerge Law Group. Tucker is past Executive Director of the Disability Rights Legal Center, and the End of Life Liberty Project, which was a sponsored project of UCSF / UC Hastings Consortium on Law, Science and Health Policy.  Prior to that she served as Director of Advocacy and Legal Affairs at Compassion & Choices for many years. Tucker has litigated many cases concerning the rights of patients with terminal illness, including Glucksberg v WA, Quill v NY, Baxter v Montana, Bergman v Eden Medical Center, Hargett v Vitas, AIMS et al v DEA.

Plaintiffs are also represented by leading disability rights litigator Cat Cabalo and civil rights litigator Adam Wolf of Peiffer Wolf.

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Fighting for Terminally Ill Californians with Physical Disabilities

Our advocacy on behalf of Californians with terminal illnesses involving progressive loss of physical ability continues.  The case was filed in August of 2021, and is discussed HERE.

California’s End of Life Options Act discriminates against these disabled patients.  The law allows mentally competent terminally ill adults to obtain medication that can be ingested to achieve a peaceful death. This option is known as aid in dying (“AID”). However, the law prohibits assisting a patient with ingesting the medication. Cal. Health & Safety Code § 443.14(a).  Californians whose physical disability prevents them from ingesting the AID medicine without assistance are thus denied access, they are unable to achieve a peaceful death via AID.

The State has moved to dismiss the case arguing, inter alia,  that these patients can access AID but must do so earlier, before their illness causes so much physical disability that they cannot ingest without assistance. This perverse position would force such patients to ingest the medication prematurely, depriving them of a period of precious life, and time with loved ones.  The entire purpose of the Act is to empower the patient with autonomy to decide if, and if so, when, to ingest the medication to achieve a peaceful death.  The state would nullify such autonomy for this group of physically disabled patients.

This civil rights class action seeks to rectify the exclusion of physically disabled individuals from the EOLOA, calling for reasonable modification of the assistance prohibition, to ensure that physically disabled Californians are afforded equal benefit of the EOLOA.

Today plaintiffs filed their opposition to the State’s Motion to Dismiss.  The Opposition is supported with an expert Declaration of Professor Thaddeus Pope, a renowned expert in end of life law and policy.

Earlier media stories about this effort include the following:

The plaintiffs are represented by long-time patient rights advocate Kathryn Tucker, Special Counsel at Emerge Law Group. Tucker is past Executive Director of the Disability Rights Legal Center, and the End of Life Liberty Project, which was a sponsored project of UCSF / UC Hastings Consortium on Law, Science and Health Policy.  Prior to that she served as Director of Advocacy and Legal Affairs at Compassion & Choices for many years. Tucker has litigated many cases concerning the rights of patients with terminal illness, including Glucksberg v WA, Quill v NY, Baxter v Montana, Bergman v Eden Medical Center, Hargett v Vitas, AIMS et al v DEA.

Plaintiffs are also represented by leading disability rights litigator Cat Cabalo and civil rights litigator Adam Wolf of Peiffer Wolf.

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Starting the New Year in California Cannabis

There hasn’t been a dull moment in the California cannabis industry since the passage of Proposition 64, and rolling into 2022, this year doesn’t look like it’s going to be any different. The sunset process for provisional licenses begins and cannabis taxes were raised as the market continues to fall.  On the bright side, licensees may apply for state equity license fee waivers and the Cannabis Appellations Program will be rolling out, which the industry hopes will give small farmers a competitive edge in a saturated market.  Let’s take a closer look at what’s in store for 2022.

Provisional Licenses

This new year brings the end of the issuance of provisional licenses for many applicants and higher thresholds to renew.

•  As of January 1, 2022, the The Department of Cannabis Control (“DCC“) no longer will issue provisional cultivation licenses to licensees which would hold over one acre of outdoor or 22,000 square feet of mixed-light or indoor.

•  As of July 1, 2022, the DCC will no longer issue any new provisional licenses for any license type unless the applicant falls under one of two exceptions (see below).  However, in order to meet the upcoming deadline, all applications for any license type must be submitted by March 31, 2022.

•  Small Farmer Exception – An applicant for less than 20,000 square feet can apply for a new provisional license until June 30, 2022.  However, the provisional license must be issued by September 30, 2022.

•  Equity Applicant Exception –  An applicant that qualifies as a social equity applicant can apply for a new provisional license until March 31, 2023.  However, such provisional license must be issued by June 30, 2023.

Applicants holding provisional licenses will also face deadlines with respect to renewal.

•  Starting July 1, 2022, in order to renew a provisional license, a licensee will need to submit:  (i) a final Lake or Stream bed Alteration Agreement (“LSAA“); (ii) a draft LSAA; (iii) a notification that application is complete; or (iv) that an LSAA is not needed. Additionally, the licensee will have to submit an initial study, addendum, or checklist to demonstrate substantial progress on California Environmental Quality Act (“CEQA“) review in the previous 12 months by the lead agency.

•  Starting January 1, 2023, the DCC will no longer renew provisional cultivation licenses for licensees which would hold over one acre of outdoor or 22.000 square feet of mixed-light or indoor.  Thus, all larger cultivation operations will need to be in full annual compliance in order to apply for a renewal next year.

See our handy Provisional License Deadline Chart.

Equity Fee Waiver

As of January 1, 2022, the DCC started their Equity Fee Waiver Program.  If a business is eligible, the DCC will waive the license fee. The waiver can be applied for a single license every 12-month licensure period.  There are two requirements that must be satisfied to be eligible for an equity fee waiver.

First, the cannabis business cannot have a gross revenue of more than $1.5 million a year.

Second, at least 50% of the business must be owned by people who meet one of the following three equity criteria: (i) cannabis conviction or arrest; (ii) household income is no more that 60% of the area’s median income; or (iii) live in a place for at least 5 years between 1980 and 2016 that was affected by criminalization of cannabis.  If the business reaches these thresholds, they can submit a request form when applying for, or renewing a license.

Cultivation Taxes

As the cannabis industry continues to face external hardships from local communities, federal and local government, or otherwise, the State of California continues to increase the cost to participate in the legal market.  As of January 1, 2022, the California Department of Tax and Fee Administration (“CDTFA“) raised the cultivation tax even despite the price for cannabis has dropped to about $200 to $500 per  pound.  This was even after California announced that there was a $31 billion budget surplus.  In response, late last year, an owner of Flow Kana called for distributors to withhold paying taxes after July 1, 2022.  The goal was to spark change on the state level to suspend, eliminate, or at least lower taxes, and it looks like the industry’s voice is starting to be heard.  On Monday, January 10, 2022, following the introduction of the proposed state budget for 2022, Governor Newsom indicated that he is open to tax reform for all cannabis operators.  This is a decent step forward for the efforts made by the industry this last year.  Hopefully, 2022 is the year for a little relief to California cannabis operators.

Appellations Program

On November 23, 2021, the Office of Administrative Law approved the proposed regulations for the Cannabis Appellations Program, which went into effect on January 1, 2022.  The regulations detail the process and requirements by which a “petitioning organization” (defined as a group of licensed cultivators of 3 or more within the proposed areas of appellation of origin) can apply for and establish a specific appellation of origin.  However, CDFA is not accepting applications at this time. CDFA has indicated that they are working on the administrative structure for the review process.  Acceptance of applications are not expected until at least mid-2022.  Overall, this gives cultivators time to collaborate and put together the complex application to apply for and create an appellation.  Petitioners will need to prepare and submit a detailed description and documentation of the proposed appellation.  As the program develops, CDFA plans to send out updates to inform the public on the process forward.

Emerge Law Group is keeping up to date on changes in the California cannabis industry.  If you have any need any assistance with obtaining or renewing a license, please contact attorneys Genny Kiley or Delia Rojas from our California Regulatory Compliance and Licensing Practice Group.

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Genny Kiley Speaks at NCIA’s 7th Annual Cannabis Business Summit

On December 16, 2021, shareholder Genny Kiley moderated the Legacy to Craft:  Social Equity, Appellations, and Interstate Commerce panel at the 7th Annual Cannabis Business Summit & Expo hosted by the National Cannabis Industry Association.  Genny was joined by panelists Nancy Do (Endo Industries), Mark Slaugh (iComply), and Omar Figeuroa (Law Offices of Omar Figueroa) to discuss the unique challenges legacy, traditional, and small cannabis operators face in today’s regulated cannabis market.  Genny and the Emerge Law Group team enjoyed reconnecting with old friends, making new connections, and are looking forward to the next conference in July 2022!

Genny is Chair of Emerge Law Group’s Cannabis Regulatory Practice Group and a shareholder in its Business and Corporate Practice Group.  Genny Kiley practices in California and Oregon, and focuses on business and real estate transactions. She has extensive experience assisting clients with business structuring, entity formation, mergers and acquisitions, corporate finance, commercial agreements, real estate acquisitions and leasing. Genny specializes in representing clients operating in highly regulated industries, including cannabis, psychedelics and alcohol. Her business law background and combined regulatory experience provides a unique perspective when advising clients. She has helped many cannabis businesses navigate state and local cannabis rules and regulations, obtain recreational and medical cannabis licenses, avoid common pitfalls unique to the cannabis industry, and expand into other estates under a patchwork of state and federal laws. In 2021, Genny was selected by her peers as a Super Lawyer in Cannabis Law, a distinction awarded to only 5% of the lawyers in Oregon.

 

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California’s Department Of Cannabis Control Consolidated Regulations APPROVED

In July of this year, the state consolidated the three separate cannabis regulatory agencies into one – Department of Cannabis Control. Their immediate effort is to consolidate and clarify the separate sets of regulations. On July 14, 2021, the state approved the movement of the three sets of regulations under a single title of the California Code of Regulations (Title 4, division 19). The state has been working hard to consolidate the three sets of regulations and amend sections where there was uncertainty or conflict between them. The goal is to provide all licensees with consistency.

On September 8, 2021, the DCC released proposed consolidated regulations and was subsequently filed with the Office of Administrative Law (“OAL”) on September 15th. Since they are emergency regulations, there was only a 5-day public comment period which gave interest holders until September 20th to submit any and all comments on the almost 400 pages of regulations, and a 10-day review period for the OAL.

On September 27, 2021, the DCC announced that the proposed regulations were approved and NOW in effect. The DCC further revealed that “the text was modified from the proposed version, published on September 8, 2021, in response to feedback received during the public comment period. Changes were also made for grammar, punctuation or spelling that did not change the meaning of the regulation.”

You can view the regulations that are now in effect HERE. An explanation of changes between the proposed and effective regulations can be found HERE.

Depending on the license type, each operator will likely need to submit additional documents, disclosures, or otherwise to be compliant. Emerge Law Group is here to assist all operators to reach compliance. Please feel free to contact our Santa Rosa Office at 707-203-5350 or Los Angeles Office at 949-936-2610 with any questions.

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California’s Aid in Dying Law Challenged in Federal Court for Discriminating Against Terminally Ill Patients with Physical Disabilities

Read Mercury News Article here: When the Aid-In-Dying Law Leaves You Out 

A number of Californians with terminal illnesses involving progressive loss of physical ability filed suit today in federal court, along with a group of physicians who treat such patients, asserting that California’s End of Life Options Act discriminates against them. The law, Cal. Health & Safety Code § 443 et seq., allows mentally competent terminally ill adults to obtain prescription medication that can be ingested to achieve a peaceful death. This option is known as aid in dying (“AID”). However, the law prohibits assisting a patient with ingesting the medication. Cal. Health & Safety Code § 443.14(a).  Californians whose disability prevents them from ingesting the AID medicine without assistance are thus denied access, they are unable to achieve a peaceful death via AID.

Justin Morris talks with his mother Sandy Morris, left, on the deck of their home in Sierraville, Calif., on a recent day. (Frame from video by Kyle Methaney))

Plaintiff-patients are terminally ill Californians with illnesses which cause progressive loss of bodily function who want the option of a more peaceful death via AID, but because of progressive illness and advancing disability, they either (1) cannot self-administer the AID medicine without assistance or (2) will not be able to self-administer the AID medicine without assistance at the time they wish to ingest the drugs.  These patients are faced with a perverse choice:  ingest the AID medication earlier than they would like while they retain the physical ability to do so or else be forced to endure the final ravages of their illness if they wait and lose the ability to ingest without assistance.

This civil rights class action seeks to rectify the exclusion of physically disabled individuals from the EOLOA, calling for reasonable accommodation to ensure physically disabled Californians are afforded equal benefit of the EOLOA.

Plaintiff Sandra (Sandy) Morris has advanced amyotrophic lateral sclerosis (“ALS”), a progressive nervous system disease that affects nerve cells in the brain and spinal cord, causing progressive loss of muscle control. A mother of 3, Sandy was advised by her doctors that ALS is invariably fatal, and that there is no cure. Sandy is now entirely dependent on caregivers to meet her every need. Sandy will soon lack the hand strength and coordination to ingest the AID medication without assistance. Sandy is being forced by operation of the EOLOA to decide between ending her life sooner than she wants or suffering the slow-and-painful death she desperately wants to avoid if she waits and loses the ability to ingest without assistance.

Plaintiff Lonny Shavelson, M.D. is one of Sandy’s treating physicians. He would like to assist her in her desire for AID if she needs assistance in ingesting the medications, but feels he is barred from doing so, as the EOLOA only protects physicians from civil and criminal penalties so long as they do not “assist the qualified person in ingesting the aid-in-dying drug.” Dr. Shavelson says: “I have seen the assistance prohibition of the EOLOA adversely impact dozens of patients, either forcing them to make the choice to act sooner, while physically still able to do so, or wait and then lose the ability to access AID and then endure the prolonged sort of death they hoped to avoid.”

This complaint seeks injunctive relief requiring accommodation to enable such patients access to AID.  Plaintiffs assert that the State must ensure Ms. Morris, and others similarly situated, are not denied the option for a peaceful death via AID due to their disabilities.

The plaintiffs are represented by long-time patient rights advocate Kathryn Tucker, now Special  Counsel at Emerge Law Group. Tucker is past Executive Director of the Disability Rights Legal Center, and the End of Life Liberty Project, which was a sponsored project of UC Hastings/UCSF Consortiuum on Law, Science and Health Policy; prior to that she served as Director of Advocacy and Legal Affairs at Compassion & Choices for many years. Tucker has litigated many cases concerning the rights of patients with terminal illness , including Glucksberg v WA, Quill v NY, Baxter v Montana, Bergman v Eden Medical Center, Hargett v Vitas, AIMS et al v DEA.

Plaintiffs are also represented by leading disability rights litigator Cat Cabalo and civil rights litigator Adam Wolf of Peiffer Wolf.

View the Complaint here: EOLOA_.08.27 Complaint_Kathryn Tucker

Kathryn Tucker
Emerge Law Group
Phone: 206-595-0097
Email: kathryn@emergelawgroup.com

Adam Wolf
Peiffer Wolf Law
Phone: 415-766-3545
Email: awolf@peifferwolf.com

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FRANCHISE LAW

Franchisors

Franchise law is a heavily regulated area of law.  We help clients expand their businesses through franchising and other distribution methods. We have experience in many industries including, restaurants, health, and beauty, alcohol, and cannabis among others. Our representative services include the following:

Franchisees

We also help potential franchisees interested in buying a franchise. We are able to assist with evaluation of franchise opportunities with respect to:

Alternative Structures

However, not all businesses are suited to franchise. We are also experienced with helping clients structure alternative distribution methods to prevent classification as a franchise.

MERGERS AND ACQUISITIONS

Our M&A attorneys are highly experienced in counseling clients who are considering acquisitions or exit strategies.  We have many years of experience handling deals of various types and sizes, ranging from sales of small closely-held business, private companies, and publicly-traded corporations.  We have represented business owners, private equity firms and investment banks in a wide range of industries. 

We have a deep business bench, and Emerge attorneys have handled transactions of all shapes and sizes.  Whether your deal is valued at $100,000 or $100,000,000, our experienced attorneys will guide you through the deal process.

We understand the intensity, technical skill and judgment needed to get deals done, and we provide our clients with timely, practical and cost-effective legal advice.  We are highly capable in all aspects of M&A, including the following:

CANNABIS INDUSTRY

Emerge Law Group is highly experienced in the cannabis industry.  We have helped many clients obtain state licenses and local permits to operate cannabis businesses throughout California, Oregon, and Washington.

Emerge attorneys were instrumental in the drafting and passage of Oregon Measure 91, legalizing marijuana in the State of Oregon, and have represented cannabis businesses well before many law firms were willing to enter the cannabis industry. As a firm that has provided legal services in the cannabis space for many years, we are familiar with the unique and complex issues businesses and individuals face in an emerging and highly regulated industry.

We regularly help clients with:

Cannabis laws and rules are also regularly changing.  Members of our team are dedicated to attending legislative hearings, state agency and local city and county meetings to stay up-to-date on any new changes and how to adjust to any new changes.

See our Cannabis Industry page for more information.

PSYCHEDELICS

There is tremendous excitement about the potential for psychedelic drugs to benefit a wide variety of populations, including terminally ill patients suffering with anxiety and depression. Until recently, psychedelic substances have been accessible only in the illicit market and are illegal under federal and state to manufacture, distribute, or possess. These substances have, since 1970, been treated as having no legitimate medical use, and no commercial application. As such, no one invested in this area or required legal services, outside of the criminal context.

Today, researchers in a multitude of clinical studies are proving the medical safety and efficacy of these medicines, with the objective of changing the treatment of these substances under the Controlled Substances Act. Companies are now actively raising money to develop intellectual property and seize market opportunities associated with psychedelic drugs.

In addition, advocates at the state and local levels are not waiting for the rescheduling of these substances and are active in undertaking efforts to decriminalize these substances and/or make them affirmatively legal under state and/or municipal law. Decriminalization already has occurred in cities including Denver, Oakland, Santa Cruz, and Ann Arbor. Oregon is poised to be the first state to make psilocybin therapy affirmatively legal. Emerge Law Group is working with a wide array of clients pushing forward in this emerging area.

See our Psychedelics Practice Group page for more information.

TAXATION

CORPORATE AND PARTNERSHIP TAX

Businesses of all kinds benefit from a customized but systematic approach to structuring legal relationships. Emerge Law Group helps businesses and business owners with a variety of tax planning matters.

Representative client services include:

ESTATE PLANNING

Estate planning encompasses everything from a will and power of attorney to combined estate and business succession planning. In almost all cases, the purpose of the plan is to help the client protect those they care about most in the event they can no longer be there for them.

Emerge Law Group has experience with a wide range of tools used in estate planning, including wills, trusts, and family business entity planning.

TAX CONTROVERSIES

Emerge Law Group can assist with the resolution of difficult tax controversies. Our areas of emphasis and experience include:

REAL ESTATE TRANSACTIONS

Emerge Law Group assists clients with a wide range of real estate transactional matters.  We regularly help clients with:

LAND USE

Emerge Law Group also assists clients with all aspects of local government land use and development processes, ranging from preliminary property analyses and building permit issues to complex land use reviews and hearings. Our attorneys are experienced in obtaining land use entitlements and development permits for a wide range of uses.

We regularly help clients with:

Above all, we understand the value of working with cities and counties to enhance communities while developing the land to its potential. We strive to create solutions to land use issues that serve to better our clients and the communities in which they live and work.

LITIGATION AND ALTERNATIVE DISPUTE RESOLUTION

The attorneys in Emerge Law Group’s Litigation and Alternative Dispute Resolution practice group litigate commercial, intellectual property, and public interest matters in state and federal courts, as well as private mediation and arbitration proceedings.  Our lawyers have represented national and regional financial institutions, major media, entertainment and technology companies, and other Fortune 500 companies in a broad array of high-stakes disputes.  Our team of litigators has handled leading cases that have shaped the law in cutting-edge business, technology, free speech, and public interest impact lawsuits in trial and the courts of appeal.

We have particular expertise in handling civil litigation and regulatory enforcement matters in the cannabis and psychedelic industries.  While many firms claim expertise in the these industries, few have our depth of experience successfully litigating contract, trademark, partnership, shareholder, land use, and real estate disputes in court and arbitration.  Even fewer firms have our level of experience handling writ of mandate proceedings against the government regulators.

Our litigators practice in California, Oregon, and Washington, but have appeared in state and federal courts nationwide.  Our knowledge of our clients’ businesses, goals and concerns, and our experience litigating at the highest levels, give us unique insight into possible outcomes and pitfalls as we continuously confront issues of new impression.

No matter what the industry, we pride ourselves in achieving our clients’ objectives through efficient and creative solutions primarily designed to avoid disputes in the first place—which is always the best litigation strategy.  Many times, our clients obtain excellent outcomes before or at the earliest stages of litigation because our adversaries quickly recognize the challenges they will face in litigating against us.  When litigation is unavoidable, however, we work hard to provide our clients with both cost-efficient and “big firm” quality representation.

 

INTELLECTUAL PROPERTY

Your intellectual property (or “IP”) strategy can harness your most valuable information and intangible assets including your name, your brand, your designs, your content, your services, and your products — what makes your business stand apart in a competitive world.  We can help you evaluate and build your IP portfolio, then secure it, monetize it, and protect it.

IP encompasses multiple areas of law and different types of information or material.

Our Intellectual Property practice focuses on:

TRADEMARK

Trademarks include names, signs, logos, designs, phrases, slogans, expressions, and sometimes even colors, sounds, or smells that identify or distinguish one business compared to others.  Trademark protection is fundamental in securing your “brand.”

COPYRIGHT

Copyright covers original works of creative authorship fixed in a tangible medium of expression.  This includes literary, dramatic, musical, and artistic works, such as poetry, novels, designs, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.  Depending upon the type of work, “moral rights” (such as the right of attribution) may be implicated as well.

TRADE SECRET

Trade secret laws can vary somewhat between states, but generally trade secrets cover information, including drawings, cost data, customer lists, formulas, recipes, patterns, compilations, programs, devices, methods, techniques or processes that derive economic value from not being generally known and are the subject of efforts that are “reasonable under the circumstances” to maintain secrecy.

PRIVACY

Depending upon where you live or operate, there is a special patchwork of laws and regulations that protect and regulate personal information.  If you are handling or giving out personal or potentially sensitive information, you may be implicating privacy laws.

PUBLICITY

Publicity rights address the commercial use of an individual’s face, name, image, or likeness.  These rights vary state-to-state.  Marilyn Monroe, for example, lived in multiple states which created complex questions about her publicity rights.

Our Intellectual Property services include:

FINANCIAL INSTITUTIONS

In states where new cannabis banking opportunities exist, Emerge Law Group has the proven expertise in creating canna-banking programs to efficiently capitalize on those opportunities. Our Banking Practice Group specializes in working with banks and credit unions to develop regulatory compliant programs and operational best practices. We also train banking staff to become experts in canna-banking so they can effective understand and manage the risk affiliated with canna-banking.

We regularly help clients with:

EMPLOYMENT LAW

At Emerge Law Group, we recognize that employees are the heart and soul of any successful business.  Our Employment Law Practice Group works with employers to help them effectively manage their workforce, navigate the complex web of federal, state and local employment laws and, if necessary, defend against claims before administrative agencies and in court.

We regularly help clients with:

CORPORATE FINANCE AND SECURITIES

Our corporate finance and securities lawyers are experienced attorneys who have practiced at large law firms, worked as in-house counsel for public companies and investment banks, and owned and operated start-up companies. We work with clients to help achieve their financing goals while safely navigating the highly technical securities law landscape. 

In addition to representing issuers, we also routinely represent institutional and individual investors, including in connection with fund formation and investments.

Our expertise includes:

We have a deep understanding of the financing options available to businesses, including simple unsecured loans, asset-backed financing, convertible debt, common and preferred equity, crowdfunding and various other structures.  We work closely with our clients to understand their business and financing needs, ensure they are prepared to approach investors and choose the right partners, structure and negotiate terms, navigate the due diligence process and successfully close the deal.

COMPLIANCE AND LICENSING

ALCOHOL AND BEVERAGE INDUSTRY

Emerge attorneys have represented businesses in the alcohol and beverage industry, including wineries, breweries, distilleries, restaurants, bars, movie theaters, golf courses, and gas stations.  We can help you vet new locations, acquire existing locations, and apply for the appropriate liquor license.  We also provide training to comply with applicable rules and regulations, prepare operating procedures, submit renewals, and keep clients protected in the event of any potential violations or administrative hearings.

CANNABIS INDUSTRY

Emerge Law Group is highly experienced in the cannabis industry.  We have helped many clients obtain state licenses and local permits to operate cannabis businesses throughout California, Oregon, and Washington.  We regularly help clients with:

Cannabis laws and rules are also regularly changing.  Members of our team are dedicated to attending legislative hearings, state agency and local city and county meetings to stay up-to-date on any new changes and how to adjust to any new changes.

See our Cannabis Industry page for more information.

PSYCHEDELICS INDUSTRY

Emerge Law Group is a leader in the psychedelics industry.  There is tremendous excitement about the potential for psychedelic drugs to benefit a wide variety of populations, including veterans struggling with PTSD and terminally ill patients suffering with anxiety and depression.  Until recently, psychedelic substances have been accessible only in the underground; they are illegal under state and federal law to manufacture, distribute, or possess.  These substances have, since 1970, been treated as having no legitimate medical use, and no commercial application.  As such, businesses have not invested in this area or required legal services, outside of the criminal context.

Today, psychedelics are proceeding toward legalization on multiple paths.  Researchers in a multitude of clinical studies are proving the medical safety and efficacy of these medicines, with the objective of changing the treatment of these substances under the federal Controlled Substances Act, opening legal access to them.  Private and public companies are now actively raising money to develop intellectual property and capitalize on the market opportunities associated with psychedelic drugs.  Opportunities to be early actors in this new arena are tremendous.

See our Psychedelics Practice Group page for more information.

BUSINESS AND CORPORATE

Our business transactions team is made up of highly experienced transactional attorneys who have practiced at large law and accounting firms, worked as in-house counsel for public companies and investment banks, and owned and operated start-up companies. We understand complex legal matters and provide high quality legal services in a cost-effective manner.  Our clients value our experience, knowledge and judgment.

ENTITY FORMATION

Our team routinely advises clients regarding:

CORPORATE GOVERNANCE

Emerge attorneys also advise on-going concerns with: