Friday, November 6, 2015
Wednesday, November 4, 2015
Mexico Joins in Cannabis Reform
Mexico, today, became another jurisdiction that inched closer to legalization. The Supreme Court held that individuals should have the right to grow and distribute marijuana for their personal use.[ Via the NY Times.]
Tuesday, November 3, 2015
Hawaii Transactional: Quote of the Day
The illegality of cannabis is outrageous, an impediment to full utilization of a drug which helps produce the serenity and insight, sensitivity and fellowship so desperately needed in this increasingly mad and dangerous world. -- Carl Sagan
To Trust or Anti-Trust -- Ohio Set to Vote on Marijuana Legalization
Today Ohio votes on what must surely be the most antiquated, and by antiquated we mean 19th century we need Teddy Roosevelt antiquated, legalization of marijuana. If the law is a go, retailers are limited to just 10 approved growers in the state. So much for the free market. For additional info, check out the Washington Post.
Monday, November 2, 2015
Legalized Marijuana is Politicized Marijuana
Two striking stories this weekend about the growing pains of the nascent Marijuana Legalization movement.
Ohio Grapples with Marijuana Monopoly
In the New York Times, Hawaii grapples with the issues of legal medical and recreational marijuana and the big business it is poised to become.
Willie Nelson seeks to stop big pot
In New York magazine, Willie Nelson, too, wants to stop corporate interests from dominating the marijuana industry.
Perhaps the most striking quote comes in the New York magazine piece.
By way of first principles, let us pause to establish that legalization is here. That fight is over; legal weed has arrived; all that remains is for the last chips to fall. Some form of marijuana has already been approved in 23 states, and roughly 80 percent of the American public currently favors medicinal use. Support for recreational pot has also been rising over the past decade, with more people in favor of full legalization than against it for the first time in 2011.
Of course we, here in Hawaii, are just on the precipice of a big change when eight dispensaries will open next year. As Hawaii News Now wrote in May, before the law was passed,
HB321, CD1 would allow applications for licenses to be available in Hawaii starting in January 11, 2016. The Department of Health would select the licensees in March and the first dispensary could open as early as July 15, 2016. A $5,000 non-refundable fee would be required to apply for a license. An approved dispensary would pay a fee of $75,000 for a license, with a $50,000 annual renewal fee.
The measure requires all dispensary licensees and employees to be subject to a criminal and background check. It restricts medical marijuana dispensaries within 750 feet of a playground, public housing complex or school. The bill also authorizes licensed dispensaries to be subject to annual unannounced inspections of its operations by the DOH.
Reciprocity with patients from other states would start on January 1, 2018. Later that year, caregivers would no longer be able to cultivate for their registered patients unless they're on an island with no dispensary or they're cultivating for a minor.
Thursday, October 29, 2015
Hawaii Transactional: Quote of the Day
Canbar - the National Cannabis Bar Association
Medical Marijuana Dispensary licenses are the subject of fierce competition here in Hawaii. Only 8 licenses will be give out statewide. Laws across the country are changing lightning fast, and one of the best possible ways to keep up is through the National Cannabis Bar Association.
Canbar had a featured speaker. Mitzi Vaughn, at the Annual Hawaii Bar Convention in an all-day subject on Legalized Marijuana and the Law (details to follow). This is a great group of cutting edge lawyers. Canbar offers not only collegiality and up-to-date news. They also offer CLEs which are so important in this growing area of business law.
Canbar had a featured speaker. Mitzi Vaughn, at the Annual Hawaii Bar Convention in an all-day subject on Legalized Marijuana and the Law (details to follow). This is a great group of cutting edge lawyers. Canbar offers not only collegiality and up-to-date news. They also offer CLEs which are so important in this growing area of business law.
Tuesday, September 29, 2015
Change the Charter
Not too many people are taking advantage so far of an opportunity that only comes along once every 10 years.
Oahu residents have until Oct. 31 to submit proposals to the Honolulu Charter Commission for improving the city and county government. As of Friday only six proposals have been submitted, but the commission chair still anticipates that the ultimate response will be similar to 2005, when 180 proposals were made.
The commission sent 12 of those proposals on to voters in 2006, and eight of them were approved, including measures to make bikeways a priority; mandate the start of a curbside recycling program; allocate a percentage of annual property tax revenues to land conservation and affordable housing; and allow the Ethics Commission to impose civil fines on elected officers for ethics violations.
Every 10 years, the commission is formed to investigate how the local government operates and explore ways to improve it. During this period, the public can submit proposed changes to the City Charter, in essence the constitution that lays out its structure.
“I think that there are people out there putting proposals together, but we haven’t had direct participation yet,” said Jesse Souki, commission chair.
The Charter Commission is comprised of 13 members – six appointed by the mayor, six by the City Council and one jointly — picked by the mayor but requiring the council’s approval.
The all-volunteer commission will review the proposals and decide which ones to place on the 2016 ballot.
This year, one proposal already received asks for more City Council oversight of the Board of Water to decrease water main breaks. Another would allot money from the Affordable Housing Fund to help people earning 60 percent or less of the household median income.
Members of the public, city officials and commissioners can submit proposals.
Since July, the commission has held public meetings on climate and environmental issues, planning and development, and public transportation. So far, they have been sparsely attended, but that may change with meetings coming up focused on the controversial Honolulu Police Commission and fees charged for rides on the bus and the future rail project.
The commission is also working with city agencies to assess the effectiveness of the current government structure.
During the next meeting — which is scheduled for Thursday at 3:30 p.m. at the Honolulu Hale committee meeting room — the public will have the opportunity to provide comments on the Honolulu Police Commission and Fire Commission, Souki said. Members of both commissions have been invited to attend.
One question to be addressed is whether the Honolulu Police Commission is “properly policing the police,” Souki added.
The Police Commission has come under fire because of perceptions that it’s soft on police discipline.
And even when it determines police officer misconduct has occurred, under the current structure the Police Department can ignore its findings.
Another meeting is scheduled Oct. 15, but the commission hasn’t chosen a topic yet. Souki said he wants to hold one or more meetings with the Board of Water Supply, the Ethics Commission and Planning Commission before the Oct. 31 proposal deadline.
He also wants to hold another meeting on public transportation to figure out how to coordinate fares between the bus and the rail.
The public can also submit ideas for topics to discuss at the meetings, he said.
“Participation is not just submitting a proposal, but coming to a meeting and listening to what we’re talking about,” Souki said. “This is actually the general public’s shot at having a direct involvement.”
The charter review process gives residents a unique opportunity to directly influence how government operates, Souki said.
Beyond this once-a-decade process, there are only two other ways to amend the charter – the mayor can submit amendments, or the City Council can place amendments on the ballot during years that the charter isn’t under review.
Oahu residents have until Oct. 31 to submit proposals to the Honolulu Charter Commission for improving the city and county government. As of Friday only six proposals have been submitted, but the commission chair still anticipates that the ultimate response will be similar to 2005, when 180 proposals were made.
The commission sent 12 of those proposals on to voters in 2006, and eight of them were approved, including measures to make bikeways a priority; mandate the start of a curbside recycling program; allocate a percentage of annual property tax revenues to land conservation and affordable housing; and allow the Ethics Commission to impose civil fines on elected officers for ethics violations.
Every 10 years, the commission is formed to investigate how the local government operates and explore ways to improve it. During this period, the public can submit proposed changes to the City Charter, in essence the constitution that lays out its structure.
“I think that there are people out there putting proposals together, but we haven’t had direct participation yet,” said Jesse Souki, commission chair.
The Charter Commission is comprised of 13 members – six appointed by the mayor, six by the City Council and one jointly — picked by the mayor but requiring the council’s approval.
The all-volunteer commission will review the proposals and decide which ones to place on the 2016 ballot.
This year, one proposal already received asks for more City Council oversight of the Board of Water to decrease water main breaks. Another would allot money from the Affordable Housing Fund to help people earning 60 percent or less of the household median income.
Members of the public, city officials and commissioners can submit proposals.
Since July, the commission has held public meetings on climate and environmental issues, planning and development, and public transportation. So far, they have been sparsely attended, but that may change with meetings coming up focused on the controversial Honolulu Police Commission and fees charged for rides on the bus and the future rail project.
The commission is also working with city agencies to assess the effectiveness of the current government structure.
During the next meeting — which is scheduled for Thursday at 3:30 p.m. at the Honolulu Hale committee meeting room — the public will have the opportunity to provide comments on the Honolulu Police Commission and Fire Commission, Souki said. Members of both commissions have been invited to attend.
One question to be addressed is whether the Honolulu Police Commission is “properly policing the police,” Souki added.
The Police Commission has come under fire because of perceptions that it’s soft on police discipline.
And even when it determines police officer misconduct has occurred, under the current structure the Police Department can ignore its findings.
Another meeting is scheduled Oct. 15, but the commission hasn’t chosen a topic yet. Souki said he wants to hold one or more meetings with the Board of Water Supply, the Ethics Commission and Planning Commission before the Oct. 31 proposal deadline.
He also wants to hold another meeting on public transportation to figure out how to coordinate fares between the bus and the rail.
The public can also submit ideas for topics to discuss at the meetings, he said.
“Participation is not just submitting a proposal, but coming to a meeting and listening to what we’re talking about,” Souki said. “This is actually the general public’s shot at having a direct involvement.”
The charter review process gives residents a unique opportunity to directly influence how government operates, Souki said.
Beyond this once-a-decade process, there are only two other ways to amend the charter – the mayor can submit amendments, or the City Council can place amendments on the ballot during years that the charter isn’t under review.
Be Heard!
The Supreme Court of Hawaii is soliciting public comments on their proposed amendment to Rule 2.1(d). The legal and nonlegal community is invited to voice their opinions. Public comment may be submitted by Oct. 16 in writing to the
Judiciary at 417 South King Street, fax 539-4801, via the
Judiciary’s website, or via e-mail to pao@courts.hawaii.gov.
Monday, September 28, 2015
Join the Hawaii Women Lawyers on Monday, October 5 at the the Hawaii Women's Law Association - Lady Lawyer Luncheon series.
Hawaii Women Lawyers
Always a fascinating talk by eminent ladies in our field.
Join and meet a network of people!
Invite a friend or colleague - the more, the merrier! Please register online no later than Friday, October 2 to let us know you are coming. Bring a bag lunch or snack; beverages will be provided. And bring some of your business cards for networking, to help introduce yourself to others. Members of Hawaii Women Lawyers who attend are eligible to enter a drawing for 2 free movie tickets!
Hawaii Women Lawyers
Always a fascinating talk by eminent ladies in our field.
Join and meet a network of people!
Lady Lawyers Luncheon:
Alternatives to Law
Monday, October 5, 2015 at Noon
Offices of Alston Hunt Floyd & Ing, ASB Tower,
1001 Bishop Street, 20th Floor conference room
Sponsored by Hawaii Women Lawyers and the Hawaii State Bar Association
Please join us on Monday, October 5 from Noon to 1:15 p.m.
to hear from two licensed attorneys who have decided to pursue
interests related to or different from law, why they made those choices,
and how they got to their current positions.- Donna Tanoue is Vice Chair of Bank of Hawaii and President of Bank of Hawaii Foundation. She also serves on Bank of Hawaii’s Board of Directors. Prior to joining the Bank, Donna was the Chairman of the Federal Deposit Insurance Corporation (FDIC) in Washington, D.C. She was also a partner with Goodsill Anderson Quinn & Stifel and Commissioner of Financial Institutions for the State of Hawaii. She serves on the boards of Kaneohe Ranch and the Honolulu Museum of Art. She previously served on the boards of Longs Drug Stores Corporation, PBS, and The Queen’s Health Systems. In her own words, she is still adjusting to life as “the Mayor’s wife.”
- Sen. Laura Thielen has represented the 25th Hawaii State Senate District, which includes Kailua, Waimanalo, Hawaii Kai, and the Northwest Hawaiian Islands, since 2012. She also operates a small farm business in Waimanalo. Her prior experience includes serving as Windward District representative for the Hawaii State Board of Education, Chairperson of the Hawaii State Board of Land and Natural Resources, Agricultural Liaison for the City and County of Honolulu, Director of the Hawaii State Office of Planning, and Managing Attorney for the Legal Aid Society of Hawaii. She is also a past President of Hawaii Women Lawyers.
Invite a friend or colleague - the more, the merrier! Please register online no later than Friday, October 2 to let us know you are coming. Bring a bag lunch or snack; beverages will be provided. And bring some of your business cards for networking, to help introduce yourself to others. Members of Hawaii Women Lawyers who attend are eligible to enter a drawing for 2 free movie tickets!
The Supreme Court Acts!
Pursuant to the petition to the Supreme Court discussed last week in this blog, the Supreme Court of Hawaii has proposed new language for Rule 1.2(d) of the Hawaii Rules of Professional Conduct so that local lawyers can advise clients who are medical dispensaries of marijuana. The proposal states:
RULE 1.2. SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
RULE 1.2. SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
***
d) A lawyer shall not counsel a client to engage, or assist
a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer
may discuss the legal consequences of any proposed course of conduct with a client
and may counsel or assist a client to make a good faith effort to determine the
validity, scope, meaning, or application of the law, and may counsel or assist
a client regarding conduct expressly permitted by Hawaii law, provided that the
lawyer counsels the client about the legal consequences, under other applicable
law, of the client’s proposed course of conduct.
Public comments to the proposed rule should be submitted, in writing, no later than Friday, October 16, 2015.
Public comments to the proposed rule should be submitted, in writing, no later than Friday, October 16, 2015.
Thursday, September 24, 2015
Lawyers Act!
A couple of days ago we reported on formal Opinion 49 from the Hawaii Disciplinary Board. This decision limits lawyers who represent marijuana dispensaries to advice only on the actual law (as opposed to say, business matters). The ruling was met with consternation among the legal community and dispensaries alike.
Today, a group of 25 lawyers have petitioned the Supreme Court for a review. According to PBN, former Hawaii Attorney General David Louie, an attorney at the firm of Kobayashi Sugita & Goda, said the letter was delivered Tuesday. Mr. Louie stated, “it’s important
to ensure that qualified patients in Hawaii have safe and legal access
to medical marijuana. We support that and believe that
there should obviously be access to this with public safety and health
preserved. So we are asking the Hawaii Supreme Court to take a look at
the situation caused by the disciplinary board's formal Opinion 49 and
we hope they will act soon and act appropriately."
Hawaii Transactional could not have said it better. The sooner the rule is changed, the better.
Hawaii Transactional could not have said it better. The sooner the rule is changed, the better.
2015 Real Estate Panel
Are you going to the 2015 Real Estate Panel? Come up and say hi.
What: 2015 Commercial Real
Estate Panel
Where: The Plaza Club 900 Fort St. Mall, 20th Floor, Honolulu, HI 96813
Date: Friday, September 25, 2015
Time: 6:45 am
Where: The Plaza Club 900 Fort St. Mall, 20th Floor, Honolulu, HI 96813
Date: Friday, September 25, 2015
Time: 6:45 am
Speak Up!
From our friends at Hawaii Women Lawyers comes this announcement.
Brian A. Costa
Thomas A.K. Haia
Timothy E. Ho
Chastity T. Imamura
Regan M. Iwao
James S. Kawashima
Linda S. Martell
James C. McWhinnie
John Alberto Montalbano
Scott M. Spallina
Because the Chief Justice has the discretion to assign judges to the district or district family court calendar, comments about the qualifications and character of any of the nominees with regard to either calendar assignment may be sent, in writing, to:
Chief Justice Mark E. Recktenwald
Supreme Court of Hawaii
417 South King Street
Honolulu, HI 96813
Fax: 808-539-4703
Email: chiefjustice@courts.hawaii.gov
Comments must be post-marked, emailed, faxed, or hand delivered no later than Friday, October 9, 2015. All comments will be kept confidential.
The individual selected by the Chief Justice is subject to Senate confirmation.
Chief Justice Seeks Public Comment on Judicial Nominees
HONOLULU – Chief Justice Mark E. Recktenwald announced today that he is seeking public comment on judicial nominees for the current vacancy in the District Court of the First Circuit (Oahu) as a result of the retirement of the Honorable Faye M. Koyanagi. The names submitted for this vacancy by the Judicial Selection Commission, in alphabetical order, are:Brian A. Costa
Thomas A.K. Haia
Timothy E. Ho
Chastity T. Imamura
Regan M. Iwao
James S. Kawashima
Linda S. Martell
James C. McWhinnie
John Alberto Montalbano
Scott M. Spallina
Because the Chief Justice has the discretion to assign judges to the district or district family court calendar, comments about the qualifications and character of any of the nominees with regard to either calendar assignment may be sent, in writing, to:
Chief Justice Mark E. Recktenwald
Supreme Court of Hawaii
417 South King Street
Honolulu, HI 96813
Fax: 808-539-4703
Email: chiefjustice@courts.hawaii.gov
Comments must be post-marked, emailed, faxed, or hand delivered no later than Friday, October 9, 2015. All comments will be kept confidential.
The individual selected by the Chief Justice is subject to Senate confirmation.
Hawaii Transactional: Quote of the Day
Keep doing good deeds long enough, and you'll probably turn out a good man in spite of yourself. --Louis Auchincloss
Oh No Kyo-Ya
In a 76-page ruling, Justice Richard Pollock of the Hawaii Supreme Court found that the Developer, Kyo Ya, could not construct a 26-story high rise 50 feet from the shoreline makai of Kalakaua Avenue yesterday.
Procedural Posture
The case has wended its way through the administrative and legal system for over 5 years. In 2010 Kyo Ya sough a variance for its project and obtained a partial one, meeting the three prong criteria for a variance, in short, (1) deprivation of reasonable use of the land (2) unique circumstances and (3) no alteration to the character of the neighborhood. Plaintiffs appealed this decision which was denied. The case found its way to the Circuit Court where the Court found that Plaintiffs "failed to satisfy its burden to demonstrate [the zoning board's decision] . . . was based on erroneous findings of material fact." The environmental groups had lost again. Plaintiffs appealed once again and the case was transferred to the Supreme Court.
Decision
In yesterday's ruling the Court found that the project did not in fact deprive Kyo Ya of reasonable use of its land stating that "the standard to evaluate deprivation of reasonable use under the charter is that the property owner must establish an inability to make reasonable use of its land . . . without the variance." Relying on Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, the court held "that an applicant who sought a variance to construct a taller building than authorized by the ordinance had not demonstrated deprivation of reasonable use because . . . the applicant could have constructed a shorter, compliant building." Kyo Ya also relied on the argument that because the PD-R (Planned Development-Resort) license would allow such a high rise building, it should build such a building. The Court did not agree. “[T]he director used Kyo Ya’s inability to obtain the full benefit from the PD-R permit as a reason to find that Kyo Ya a would be denied reasonable use of the site if the coastal height setback was applied. In other words, by obtaining the PD-R permit prior to seeking the variance, Kyo-ya was able to argue that it was deprived of the reasonable use of its land by pointing to the loss of the increased density and height. The judge found that reasoning circuitous.
Implications
This case will have long reaching ramifications for Developers who wish to build on Waikiki shoreline. With Court effectively holding that reasonable use can be obtained with hotels the are similar to the ones now standing, increased development as we have come to understand it will be limited. "Equally Dense" buildings, but perhaps not the new beachfront high-rises Developers were hoping for.
Procedural Posture
The case has wended its way through the administrative and legal system for over 5 years. In 2010 Kyo Ya sough a variance for its project and obtained a partial one, meeting the three prong criteria for a variance, in short, (1) deprivation of reasonable use of the land (2) unique circumstances and (3) no alteration to the character of the neighborhood. Plaintiffs appealed this decision which was denied. The case found its way to the Circuit Court where the Court found that Plaintiffs "failed to satisfy its burden to demonstrate [the zoning board's decision] . . . was based on erroneous findings of material fact." The environmental groups had lost again. Plaintiffs appealed once again and the case was transferred to the Supreme Court.
Decision
In yesterday's ruling the Court found that the project did not in fact deprive Kyo Ya of reasonable use of its land stating that "the standard to evaluate deprivation of reasonable use under the charter is that the property owner must establish an inability to make reasonable use of its land . . . without the variance." Relying on Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, the court held "that an applicant who sought a variance to construct a taller building than authorized by the ordinance had not demonstrated deprivation of reasonable use because . . . the applicant could have constructed a shorter, compliant building." Kyo Ya also relied on the argument that because the PD-R (Planned Development-Resort) license would allow such a high rise building, it should build such a building. The Court did not agree. “[T]he director used Kyo Ya’s inability to obtain the full benefit from the PD-R permit as a reason to find that Kyo Ya a would be denied reasonable use of the site if the coastal height setback was applied. In other words, by obtaining the PD-R permit prior to seeking the variance, Kyo-ya was able to argue that it was deprived of the reasonable use of its land by pointing to the loss of the increased density and height. The judge found that reasoning circuitous.
Implications
This case will have long reaching ramifications for Developers who wish to build on Waikiki shoreline. With Court effectively holding that reasonable use can be obtained with hotels the are similar to the ones now standing, increased development as we have come to understand it will be limited. "Equally Dense" buildings, but perhaps not the new beachfront high-rises Developers were hoping for.
Tuesday, September 22, 2015
Hawaii Medical Marijuana Counsel: Up in Smoke
Formal Opinion No. 49 set forth by the Hon. Clifford L. Nakea (Ret.) may have dashed hopes of businesses and business lawyers throughout the state when the Disciplinary Board of the Hawai'i Supreme Court opined on August 27th that lawyers could advise clients with respect to Act 241, but a lawyer cannot "provide legal services or facilitate and manage the operation of a medical marijuana business" when pot remains illegal under federal law.
Under Rule 1.2(d) of the Hawai'i Rules of Professional Conduct, "a lawyer shall not counsel a client to engage or assist a client in conduct the lawyer to aid or assist in conduct the lawyer knows is criminal or fraudulent" but a lawyer can advise with respect the legal consequences of such action.
This is bad news for enterprising Hawaii lawyers and medical marijuana purveyors. There may be not group in more dire need of legal services than marijuana dispensaries. The state law itself is rife with conflicts, each state varying the access to buying marijuana. Moreover, medical dispensaries are in dire need of tax advice given not only of their designation as criminal activity, but also the labrythine workings of the tax code.
Under Rule 1.2(d) of the Hawai'i Rules of Professional Conduct, "a lawyer shall not counsel a client to engage or assist a client in conduct the lawyer to aid or assist in conduct the lawyer knows is criminal or fraudulent" but a lawyer can advise with respect the legal consequences of such action.
This is bad news for enterprising Hawaii lawyers and medical marijuana purveyors. There may be not group in more dire need of legal services than marijuana dispensaries. The state law itself is rife with conflicts, each state varying the access to buying marijuana. Moreover, medical dispensaries are in dire need of tax advice given not only of their designation as criminal activity, but also the labrythine workings of the tax code.
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